Posts Tagged ‘court fees’
Employment Tribunal fees: back to the drawing board
(i) Financial: to transfer a proportion of the costs of the ETs to users (where they
can afford to pay);
(ii) Behavioural: to encourage people to use alternative services to help resolve
their disputes; and
(iii) Justice: to protect access to justice.getting a better balance between what the taxpayer funds and what the litigant funds.
An official review of the impact of the fee changes, published in January 2017 concluded that, broadly, these objectives had been achieved. (See this blog, February 2017)
The Supreme Court has, however, come to a quite different conclusion. In R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51, the Court concluded unanimously that the Fees Order was ultra vires (that is to say that the Lord Chancellor did not have the power to make the order) and so quashed it.
There are at least three reasons why the judgements in this case are particularly interesting.
First, in most cases where the validity of a Statutory Instrument is challenged in the courts, the argument turns on fairly precise questions of statutory interpretation – were the rule-making powers in an Act of Parliament sufficient to give the relevant Minister the power to make the order being challenged?
In this case a much broader, constitutional approach was adopted. The essence of the argument was that the impact of the Order was so dramatic (the numbers of cases coming to both the ET and the EAT had fallen dramatically since the introduction of the fees) that they had the effect of denying potential claimants access to justice.Lord Reed, in the principal judgement, refers back to a number of historic legal texts, including Magna Carta, to conclude that it is a constitutional principle recognised in common law, that people should have access to justice.
Second, the judgement relies heavily on a number of empirical studies to show that the effect of impact of the fees rules was quite disproportionate. Using hypothetical examples, the Justices conclude that ordinary people on average earnings would have to forgo weeks if not months of expenditure on anything other than the most basic necessities to save the money needed to pay the relevant fees. The Court decided that the fees thus imposed a quite disproportionate burden on those who might have an arguable case to take to the ET or EAT. Certainly the cosy conclusions of the impact review, mentioned at the start of this note, were totally rejected by the Supreme Court
Finally, Lord Reed makes a number of interesting and important observations about the rule of law and the functions of courts and tribunals in supporting the rule of law. (See in particular paras 66-85 of the judgement). Here I set out brief extracts from the judgement:
The importance of the rule of law is not always understood. Indications of a lackof understanding include the assumption that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services tothe “users” who appear before them, and that the provision of those services is ofvalue only to the users themselves and to those who are remunerated for theirparticipation in the proceedings. [There is an] assumption that the consumption of ET and EAT services without full cost recovery results in a loss to society, since “ET and EAT use does not lead to gains to society that exceed the sum of the gains toconsumers and producers of these services”.
[However] …the idea that bringing a claim before a court or a tribunal is a purely private activity, and the related idea that such claims provide no broader social benefit, are demonstrably untenable….
Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.
Every day in the courts and tribunals of this country, the names of people who brought cases in the past live on as shorthand for the legal rules and principles which their cases established. Their cases form the basis of the advice given to those whose cases are now before the courts, or who need to be advised as to the basis on which their claim might fairly be settled, or who need to be advised that their case is hopeless. The written case lodged on behalf of the Lord Chancellor in this appeal itself cites over 60 cases, each of which bears the name of the individual involved, and each of which is relied on as establishing a legal proposition. The Lord Chancellor’s own use of these materials refutes the idea that taxpayers derive no benefit from the cases brought by other people….
But the value to society of the right of access to the courts is not confined to cases in which the courts decide questions of general importance. People and businesses need to know, on the one hand, that they will be able to enforce their rights if they have to do so, and, on the other hand, that if they fail to meet their obligations, there is likely to be a remedy against them. It is that knowledge which underpins everyday economic and social relations….
When Parliament passes laws creating employment rights, for example, it does so not merely in order to confer benefits on individual employees, but because it has decided that it is in the public interest that those rights should be given effect. It does not envisage that every case of a breach of those rights will result in a claim before an ET. But the possibility of claims being brought by employees whose rights are infringed must exist, if employment relationships are to be based on respect for those rights. Equally, although it is often desirable that claims arising out of allegedbreaches of employment rights should be resolved by negotiation or mediation,those procedures can only work fairly and properly if they are backed up by theknowledge on both sides that a fair and just system of adjudication will be availableif they fail. Otherwise, the party in the stronger bargaining position will always prevail….
Court fees: new decisions; new consultation
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
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.
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.
Court fees: further changes
In June 2014, new fees for taking civil proceedings were introduced, designed to bring in additional revenue to the Court Service/Ministry of Justice.
In January 2015, a further paper was published by the Ministry of Justice which announced further decisions relating to court fees, and which raised for consultation yet other suggestions for increasing court fees. These proposals are set against a background where the income which the initial changes had hoped to generate has not been realised.
The principal change is that the fee to issue proceedings for the recovery of money is raised to 5% of the value of the claim for all claims over £10,000, up to a maximum of £10,000. The fees for claims of less than £10,000, which represent over 90% of all money claims, will remain at their current levels. Discounts of 10% will apply to these fees where the claim is initiated electronically using the Secure Data Transfer facility or Money Claims Online.
The Government has decided not to implement the proposed increase to the fee for a divorce, or either of the options for charging higher fees for commercial proceedings.
The Government is now consulting on proposals
- to raise the fee for a possession claim by £75.
- to increase the fee for a general application in civil proceedings from £50 to £100 for an application without notice or by consent; and from£155 to £255 for an application on notice which is contested.
It is proposed that the latter proposal should be subject to an exemption for:
- applications to vary or extend an injunction for protection from harassment or violence;
- applications for a payment to be made from funds held in court; and
- applications made in proceedings brought under the Insolvency Act 1986.
The consultation period is only 6 weeks. Final decisions will be announced in due course.
For full details see https://www.gov.uk/government/publications/enhanced-court-fees-the-government-response-to-part-2-of-the-consultation-on-reform-of-court-fees
Court fees: the changes
Accompanying the creation of the single Family Court and the single County Court, the Government moved swiftly to introduce new court fees, adopting – for the most part – the principles it set out in its consultation document published in late 2013 (see blog March 2014).
The Government has acted to introduce new fees which, broadly, increase as a case proceeds – with court hearings incurring rather higher fees than hitherto. Those interested in the details can see the new fees set out in https://www.gov.uk/government/consultations/court-fees-proposals-for-reform.
Interestingly, the announcement of these increases was made on the same day that a research report was published which suggested that on the whole litigants thought the fee levels were reasonable and would not have been deterred from bringing a case simply because of the fees charged. See https://www.gov.uk/government/publications/the-role-of-court-fees-in-affecting-users-decisions-to-bring-cases-to-the-civil-and-family-courts.
Time will tell whether the new fees act as a deterrent to access to justice; intuitively it could be anticipated that there would be some effect.
Paying for civil justice: policy on court fees
Late in 2013, the Government announced a short consultation on fees to be charged for using the civil courts. The Government’s argument is that, at a time or austerity, those who seek to use the courts – in particular to resolve high value disputes – should pay more towards to cost of so doing.
The Government’s case was summarised thus:
“The courts play a vital role in our democracy. They provide access to justice for those who need it, help to maintain social order and support the proper functioning of the economy. They:
- deal with those accused of committing crimes, acquitting the innocent and convicting and punishing the guilty;
- provide the right environment for business and commerce to flourish, giving people the confidence to enter into business safe in the knowledge that the commercial arrangements they agree will be recognised and enforced by the courts; and
- deal with matters affecting families, from protecting children at risk of harm to making arrangements for couples who are separating.
For many years, users have been charged fees to access the civil court system, which includes all civil, family and probate jurisdictions, as well as the Court of Protection and the Court of Appeal (Civil Division).
The power to charge fees in the civil court system of England and Wales is set out in a number of pieces of legislation, including the Courts Act 2003 and the Mental Capacity Act 2005. When setting fees in the civil court system, the Lord Chancellor is required to have regard to the principle that access to justice must not be denied.
In recent years, the government’s policy has been to set fees on the basis of full cost recovery: that is, the use of fee income to recover the full cost of the court system, minus the cost of the remissions system (fee waivers). However, until now, the courts have been operating at less than full cost recovery, which has diverted resources from other areas of operations.
It is critical that the courts are properly funded if they are to continue to provide access to justice whilst contributing to the ongoing development of a more efficient, modernised court service.
At the same time, the government has made reducing the fiscal deficit a top priority, in order to set the economy on course for growth. Under the terms of its Spending Review settlement, the Ministry of Justice is required to reduce its annual spending by over £2.5 billion by 2014/15. The courts, and those who use them, must make a contribution to reducing public spending.
Achieving this outcome in this environment involves some difficult choices: there is a limit to how much can be achieved by those spending cuts alone. For these reasons, the government believes that it is preferable that those who can afford to pay should contribute more to the costs of the courts, so that access to justice is preserved and the cost to the taxpayer is reduced.”
Within this context, proposals for very significant rises in court fees were floated. Some have argued that a consequence would be that high value international cases will move to other jurisdictions where fees are less. Others have argued that the proposals will have significant human rights implications.
Detailed policy announcements are anticipated later in 2014. Whatever the outcome, they will be very controversial.
See: https://consult.justice.gov.uk/digital-communications/court-fees-proposals-for-reform
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 