Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Court fees: new decisions; new consultation

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In purely commercial terms, the civil justice and tribunals system operates at a financial loss. Many argue that this is as it should be – the provision of courts and tribunals is a public service that should be financed generally by the state, not just by those who have to use the courts. But the former Coalition Government and the current Conservative Government do not share this view. They argue that users of court and tribunal services should pay more for them than they historically they have done. Despite recent increases in court fees, the Government states that the Courts and Tribunals Service costs £1 billion more than the income received through fees.

In January 2015, I noted here the decisions of the Government to introduce new court fees – decisions which, when they came into effect in April, resulted in a great deal of complaint from the legal profession. Those decisions were also accompanied by a consultation on other proposed changes to court fees.

This incremental approach to policy making – linking decisions and consultations – has now been used again. In July 2015, the newly elected Conservative Government reached its conclusions on the issues it consulted on in January 2015, and at the same time set out further proposals for fee changes on which views are sought – nicely timed for the holiday period when Ministers and civil servants are away, leaving holiday homework for those who have to respond to these documents!

The July 2015 document sets out the following principal decisions and issues.

Court fees – general

1. Following the January consultation, the Government has decided to increase the fees for issuing a possession claim in the county court by £75, from £280 to £355. The Government claims that the available evidence suggests that this increase will not deter anyone who would otherwise have taken their claim to court. it does not mention the ultimate impact this decision may have on the person against whom possession is being sought.
2. The Government has also decided to increase the fees for general applications in civil proceedings by £50, from £50 to
£100, for an application by consent and by £100, from £155 to £255, for a contested application. In order to ensure the most vulnerable are not affected, the Government has decided to exclude from this fee rise applications such as those to vary or extend an injunction for protection from harassment or violence.
Divorce fees
In December 2013, the Coalition Government also consulted on increasing the fee payable to issue divorce proceedings from £410 to £750. The Government has now announced that it will Increase the fees for issuing divorce proceedings to £550. The Government states:
We have carefully considered the concerns raised during the consultation and decided not to increase fees by 80% as originally proposed. Instead we will press ahead with a more affordable increase of about a third. We are also protecting the most vulnerable by ensuring that fee remission is available for those who need it, such as women in low wage households.
What is interesting to me is whether there are opportunities here to encourage parties to potential divorce proceedings to issue proceedings on-line. While some divorce proceedings are extremely complex, many are not. Should not the Government be developing a portal to enable divorce proceedings to be issues on-line, such as now happens in other parts of the civil justice system, e.g. for money claims and possession claims? Lower fees for issuing proceedings online would be expected.

It cannot be said that the three changes listed above are going to impact significantly on the £1bn shortfall; the Government’s own estimates are that the increased fees will only raise around £60 million.

Further proposals

It is worth remembering that in determining the balance between what users pay towards the overall cost of the court and tribunal service as compared with the financial burden that falls on the taxpayer. That is why, in the last Coalition Government,  section 180 of the Anti-social Behaviour Crime and Policing Act 2014 gave the government power to set fees at a level above the costs of proceedings to which they relate, i.e. in crude terms to make a surplus on certain types of proceedings which could be used to fund other types of process.

The Government has now set out further proposals relating to fees for proceedings.

First, it proposes an increase in the maximum fee for money claims from £10,000 to at least £20,000. Fees are currently payable on 5% of the value of a claim up to a maximum fee of £10,000. The proposal is therefore to double the maximum fee. The Government notes that this change will only affect the highest value claims, worth £200,000 or more. There are 1.2 million money claims each year, of which only 5,000 will be affected.That is just 0.4% of the total, or 1 in every 240 money claims. The Government argues, with some force, that many of the claims brought for higher values will involve large multi-national organisations or wealthy individuals. It therefore thinks it  right to ask them to contribute more. In order to protect
the most vulnerable, personal injury and clinical negligence claims will be excluded from this higher cap and fee remissions for those of limited means will continue to apply.
Second, the Government proposes to introduce or increase fees for certain tribunals. Thus fees in the Immigration and Asylum Chamber would, while applying exemptions to protect the most vulnerable.
The Government states it will not be applying any fees to the Social Entitlement Chamber of the First-tier Tribunal, where most applicants do not have the means to pay, or to the Mental Health Tribunal, which deals with especially vulnerable individuals.
However, it does want to introduce fees to the property, tax and general regulatory chambers. In the property tribunal, it proposes fees at low levels for the majority of applications, while setting higher fees for leasehold enfranchisement cases where there are often large sums of money at stake. In each of the Tribunals being consulted on, the Government says its aim is to recover 25% of the total cost of the service through fees with taxpayers footing the rest of the bill.
What is disappointing about these proposals is that there is no reference to the work done by the now defunct Adminitrative Justice and Tribunals Council, which suggested that discussion of income streams for providing the tribunals service should also include consideration of what financial contribution those government departments against whom decisions are being appealed should make, particularly in cases where the departmentd loses the appeal. The Council felt that the incentives on departments to get the decision right first time were not sufficiently strong.
The Consultation on these proposals runs until mid-September. It may be anticipated that consequent decisions will emerge around the end of the year.
Full details of the decisions and consultation proposals are in https://consult.justice.gov.uk/digital-communications/further-fees-proposal-consultation/supporting_documents/enhancedfeesresponseconsultationonfurtherfees.pdf.
Full lists of the new fees are in Annex B; lists of the proposed new fees are in Annex C.
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