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Court fee reforms: a vital battleground in the protection of fundamental rights

Getting hot and bothered about court fees is not what drives civil liberties lawyers to represent victims in human rights cases. The details of fees, from the initial payment to start proceedings off, known as the issue fee, to the various other fees paid to the court to move the case forward, are usually kept pinned up on a board or in a battered folder somewhere under a desk, and haven’t traditionally intruded much on the average lawyer’s day. That has all changed following recent developments that mean dealing with the fees paid to the court has shifted from a regular administrative task to a vital battleground in the protection of fundamental rights.

In January, the Ministry of Justice issued proposals on increasing court fees. The document confirms the Government plans to increase issue fees for civil claims, and sets out further proposals on raising fees, including on the cost of obtaining consent orders. Although these proposals are deeply uninteresting to the vast majority of people, they are hugely significant, because of the potential impact on access to justice for every citizen, and for human rights claimants in particular.

Firstly, in relation to the issue fees, the proposals state that for every claim over £10,000, the cost of issuing the case at court will be 5% of the amount claimed. Currently the fees are banded, so that it costs £455 to bring a case valued at between £5,000 and £15,000, and £610 to bring a case valued between £15,000 and £50,000. Under the new fees, this will be drastically increased. Take the case of DSD, who the High Court found last year had been badly let down by the Metropolitan Police when they failed to properly investigate her claim of rape by the taxi driver John Worboys (discussed in a previous blog). She was awarded £22,500 in total. If her case had been issued after 9 March and it had been possible to accurately estimate the value of her claim at the outset (an exercise which is particularly difficult in civil liberties claims), the cost of starting her case off at court would be nearly double under the new rules, from a fee of £610 to a fee of £1,125. This is in addition to dramatic increases in previous years, and means the rate of increase of court fees vastly exceeds inflation, amounting to a possible quadrupling of cost over a two year period.

The changes have been criticised by the whole legal profession, from senior judges to the Law Society, and the plan is for these proposals to be rushed through, with the new fees brought in on 9 March (subject to approval from the House of Lords). This short timeframe means that there is now a rush on to avoid the higher fees, with a likely significant spike in issued cases and further knock on effects for the workload of the courts. In response, the Law Society, Bar Council, Chartered Institute of Legal Executives (CILEx) and others have initiated judicial review proceedings against the Lord Chancellor, topically citing the 800 year old Magna Carta. The claim argues that the change amounts to selling justice, which is contrary to the Great Charter, and also advances a number of powerful technical arguments; that the Government does not have the power to raise fees for the purposes it sets out in the consultation and that the consultation was flawed in various ways.

One alleged flaw with the consultation was the lack of evidence supporting the changes. It is notable that with all the expressed concerns about the potential impact on small businesses and individual citizens, the only piece of detailed research the Government did commission was research into the possible impact on international competitiveness. As argued previously in this blog, it is clear that the key concern of the current administration is with the promotion the UK as a hub for global legal services, not on protecting the fundamental rights of individual members of the public.

It is also likely to be counterproductive, with additional costs on court fees meaning that fewer people can afford lawyers, leading to more litigants in person taking up more court time. In human rights cases, where the law is complex and victims are overwhelmingly less likely to be able to argue their corner than in the average case, these factors are likely to be particularly significant. As well as less access to justice for victims, it will mean fewer cases brought on the proper legal basis, fewer cases settled by consent, and more time wasted for courts and defendants.

Where clients can get a lawyer funded by either legal aid or through a conditional fee arrangement, it will also have an impact. Where cases are funded by legal aid, the increased costs will make it likely that cases will quickly hit the limit of the available legal aid on a particular case, making it far more difficult to take a case forward. In conditional fee cases, if there is insurance for the client, the changes will increase borrowing and interest repayments and potentially increase insurance premiums, which will come directly out of client damages. Worst of all, in conditional fee cases where there is no insurance, the potential impact will be that clients will be effectively prevented from issuing strong claims, on the basis they cannot afford to have such large sums of money tied up in the litigation, even if they would recover the costs from the Defendant on conclusion of the claim.

The overall impact will be a lack of access to justice for victims of human rights abuses. If they are able to issue the case at all, the proposed changes to fees during the case will make it far more difficult to actually take a case forward. The proposals suggest that a fee for making an order by consent will be doubled to £100, while the cost of an application for a hearing will increase by £100 to £255. This means a huge increase in the cost of pursuing fundamental rights, like getting a trial by jury when there is an allegation of wrongdoing by public officials, or applications for anonymity for the most vulnerable claimants. Where a case is brought on behalf of a child, which is common in human rights cases involving deaths in custody, the court has to oversee any settlement, and this disadvantages children bringing civil claims, meaning they must in all issued cases pay the costs of a contested application (in addition to the increased court fee) solely to get approval of a settlement.

Whether these proposals will all go through is yet to be seen. And even if they do go through, the courts may strike them down. This blog has commented before on the amazing losing streak of the current Lord Chancellor in judicial review cases, and another loss has now been added to that tally this week. The case was brought by Shelter and a group of solicitors firms to contest new rules which came into effect in April 2014. The rules meant that legal aid firms bringing judicial review cases would only get their fees if the case got over the first hurdle, and was granted permission to proceed by the court. The risk of bringing complex cases which might not succeed (which is regularly the case with human rights claims) was therefore passed to the legal aid solicitors. The Court heard evidence from a range of witnesses, including Anna-Louise Thwaites of HJA, and held that the purpose of bringing in the rule, allegedly to force legal aid providers to properly assess risks before issuing a case, was not rationally connected to the rule, because a great deal could change between applying for legal aid and permission being refused. As such, the court decided that the “scope of [the regulation] extends beyond the circumstances which can be seen as rationally connected to the stated purpose given for its introduction.”

Civil liberties lawyers are driven to work in this area to speak up for the vulnerable and unheard in our society. No human rights lawyer got into this area of work for the joy of fighting the State on details about costs or fees. However, increasingly firms are forced to fight against ill thought through, badly administered and fundamentally unjust ‘reforms’ which in the long run cost more public money. Much more fundamentally, these sweeping changes threaten yet more injustice for victims who have already suffered breaches of their fundamental civil liberties.