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Government must rethink second round of court fee hikes

Earlier this month, the Government closed its consultation into a second hike in court fees. The plan, to double the upper limit payable in court fees from £10,000 to £20,000, comes at a time when the impact of already drastic and unprecedented fee increases has not even been properly assessed, causing huge concern to those campaigning to ensure access to justice including lawyers across the board.

Although personal injury and clinical negligence claims will be excluded from the higher cap and there will be fee remissions for those ‘of limited means’, these fee increases will by no means be limited to large commercial disputes.

The truth is that there are many non-commercial claims brought by individuals with limited means, which could fall within the affected bracket. A claim, for example, involving a lengthy false imprisonment where a person has a loss of earnings claim for the duration of their imprisonment and beyond would be subject to the fees and the proposed change could be the difference between the individual being able to bring his claim and not having the means to do so.

Individuals in some cases will not just be looking at one off court fees of £20,000. In some cases they will be hit by increased court fees multiple times, first by issuing the claim, then by making applications – such as to stay the claim or to seek anonymity or a trial by judge and jury – and then possibly when seeking permission to appeal, paying for an appeal hearing and again if seeking to bring a related judicial review.

At a time when the legal aid budget is under significant pressure, for legal aid cases, the fees will eat into that budget. Where individuals have conditional fee agreements it will be individual firms of solicitors who will have to foot the bill until the claim concludes, causing cash flow problems for firms already struggling to make working on many of their cases pay.

The government purports to be committed to access to justice but it is clear that these costs are prohibitive for those on low to middle incomes, with law firms turning down cases that are no longer profitable and individuals deciding they cannot afford to pursue claims, or if they do, that they must represent themselves as litigants in person. The inevitable increase in litigants in person will be counterproductive as judges are forced to spend longer addressing key issues at hearing that have not been included in applications made by inexperienced and unrepresented litigants.

In our submission to the Government’s consultation we question both the justification and the rationale for the rises, arguing that fee increases have been railroaded in despite the vast majority of practitioners voicing concerns. Ideologically-driven changes made in the name of ‘austerity’ are moving us towards a kind of ‘pay as you go’ justice where those who have the misfortune to need to use the courts must pay, despite already funding the service through their taxes.

There is a failure in the Government’s proposals to ensure that those bringing claims against public authorities which are not for personal injury are exempted from further increases, leaving vulnerable people with human rights related claims or other claims against the state open to the increase. Those with civil liberties related claims, such as victims of malicious prosecution, police brutality, false imprisonment or privacy breaches, may be prevented from bringing claims at all.

Should the proposals be railroaded through without heed to the widespread concerns and warnings (as has been par for the course with previous consultations on court fees), the government needs to look carefully at who qualifies for fee remissions, with the disposable capital threshold in need of a significant increase to prevent those with modest savings losing everything and further thought given to income. The government also fails to tackle the issue of capital investment, meaning that people bringing claims will be unfairly penalised if they are, for example, saving to buy a house, compared with someone who happens to have just completed a purchase. For the new system to work fee remission has to be meaningful and ensure that individuals will not be left impoverished as a result of bringing a claim and that the enhanced fees paid by those with deep pockets, go towards subsidising the fees of those who cannot afford it.

Whilst the Government is presenting the issue of court fees as one of costs and cash flow, the issue goes far deeper than that. Like many of the current reforms of our legal system, the changes appear to be part of a drive to curtail legal actions, disproportionately affecting the most marginalised in society. This goes to the very heart of the kind of society we wish to live in. For our justice system to function effectively and for our state authorities to be held to account, everyone in society and not just the wealthy, must have access to justice.