Lord Dyson, Master of the Rolls, revealed his concerns about enhanced court fees impeding access to justice when yesterday, 26 January 2016, in connection with its inquiry into courts and tribunals fees and charges.
Lord Dyson emphasised that access to justice was the critical issue when considering the appropriate level of court fees, as opposed to the issue of whether the principle of 100% cost recovery or enhanced court fees was acceptable in principle, on which there has been much debate.
Lord Dyson didn鈥檛 see any objection in principle to the concept of enhanced court fees, so long as there was no impact on access to justice, although it seemed likely that there would be. The principle that users of civil courts should subsidise the family and criminal courts is one that he didn鈥檛 like and thought was wrong in principle.
He was particularly concerned about the impact of fee increase on small and medium sized businesses, of modest means, which would fall outside the low threshold for fee remissions. He used the example of a builder seeking to claim 拢50k from a client, who would under the current fee structure have to pay an issue fee of 拢2,500 upfront to bring a claim. This was a significant increase on the pre-March 2015 fee and was bound to be a deterrent for small businesses.
In commenting on the research carried out by the Government prior to the recent fee increases, Lord Dyson stated that it was 鈥榣amentable鈥欌攊nitially constituting of a mere 18 telephone calls (subsequently increased to 31). He noted that the research was 鈥榟opeless鈥 but was evidently rushed through to plug a 鈥榞reat big gap鈥 in the department鈥檚 finances and categorised it as an almost 鈥榙esperate way of carrying on鈥.
Lord Dyson was critical of the Government鈥檚 鈥榲ery limited evidential base鈥 behind the court fee increases, and stated that he was very 鈥榮keptical鈥 of the assumption that demand would not be affected by the fee increases. In his view, much more in-depth research would need to be carried out to test this assumption and he would be surprised if the results of further research did not say that the assumption was false.
When asked if the value of a claim was an appropriate criterion for setting the issue fee, Lord Dyson accepted that this was a crude measure, which did not necessarily correlate with the complexity of a case and the amount of court resources that would have to be devoted to it. However, he queried whether there was a better alternative.
Additionally, Lord Dyson ruled out the possibility of having staged fees, paid at key stages throughout the claim. Whilst he accepted that this had a superficial attraction and would no doubt be good for access to justice鈥攅specially for those litigants with cash flow problems that fell outside the fee remission threshold鈥攈e was of the view that it wouldn鈥檛 work. This was because 鈥榯he take from fees [was] bound to be a lot less because most cases settle鈥, and so there would be no money to plug the 鈥榖ig hole in the department鈥檚 finances鈥 which were in the region of a 拢100 million shortfall. In addition, a system of staged fees would increase the administrative burden on court staff and therefore the cost.
In response to a question concerning the effect of court fee increases on the international competitiveness of the legal services market, Lord Dyson thought that it was too early to form a view on whether the recent increases had had an impact. However, for the large commercial cases, in which there was a choice as to jurisdiction, anything that made another jurisdiction more attractive鈥攇iving Singapore as an example鈥攚as something to be very concerned about.
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Melissa is a member of the LexisPSL Dispute Resolution team.聽 She focuses on the law and practice of commercial litigation with a particular interest in the procedural aspects of starting and managing civil claims up to and including trial.
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