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Pay As You Go Justice

Posted on 27th August 2015

Court fees in civil courts were recently dramatically increased. For the highest value claims it can now cost up to £10,000 to start a claim in court. These fees don’t just apply to large commercial disputes, but also to claims by individuals; including small business owners, those who have been seriously injured, for example by police officers, or where family members have been neglected in prison and died.

No sooner have these drastic and unprecedented fees been put in place, but the government is consulting on yet more increases. They state that these increased court fees are “necessary to… fix the economy” and that they aim to cover the entire cost of the court service through fee income: a kind of pay as you go justice system.

The Ministry of Justice asserts they will protect more vulnerable claimants (such as those bringing personal injury and clinical negligence cases, or people seeking the court’s protection from domestic violence or forced marriage) but the proposals are still at consultation stage and the practical impact on these vulnerable individuals is still unclear.

What is notable is the language used by ministers within the consultation papers which seems to betray a particular attitude to the court system in general. The £1 billion given by the Treasury to the courts every year is described as a ‘subsidy’. On the one hand this could be a shorthand way of explaining the difference between the running costs of the court system and the income generated by court fees; on the other, it seems to be an indicative of the attitude of politicians to the judiciary and its role in society.

The foundation of Britain’s (unwritten) constitution is the structure of institutions that create and enforce our laws. Whatever laws the parliament enacts, the people (including ministers, civil servants, as well as the public) must obey. Where the law is not followed, the remedy is through the courts system. This is the ‘rule of law’ that we sell abroad as a British value and an enticement for global disputes to be heard in our courts.

The consultation paper’s description of the court system describes a service which users must pay for. Recent legislation has even allowed for the Lord Chancellor to set a fee that exceeds the cost of whatever the fee is actually for.

Most of us consider the cheap bars and restaurants in the Houses of Parliament a subsidised luxury but few would argue that the salary of MPs, and those of the civil servants who ensure the parliamentary system operates effectively, are taxpayer subsidies (save possibly one or two of the more extravagant expenses claims).

What the government seems to be really saying is that our judges, their clerks, even the counter staff, should all be paid for directly by the users or ‘customers’ of the court (and not through a system of taxation). When the state unlawfully imprisons you, or an officer of the state assaults you, it is a privilege and not a right to use the court system for redress.

Of course in successful claims, the losing party usually ultimately pays the costs of these fees, but at the beginning of a case it means an additional hurdle, and risk, for the injured party. For many, particularly those who are just over the very low threshold for legal aid eligibility (people of very modest means) this can be the difference between being able to bring a claim or not.

When considered with the other changes recently implemented, the message is clear: if you want to use the court (to defend yourself from criminal charges, to ensure you are paid a fair wage, to claim damages to pay for intensive treatment for a lifelong injury) you are a service user who must pay.

In the criminal courts, the Ministry of Justice make the case that convicted offenders should pay towards the cost of running criminal costs. These charges, unlike criminal fines, are not means tested. Magistrates and judges have no choice but to apply them, regardless of whether the defendant before them has any means to pay. The charges are significantly less if the defendant pleads guilty in the first instance. There is a real danger to those who are not wealthy having to weigh up the risk of being found guilty and have to pay £1,000 against the value of defending themselves to trial.

Huge rises in the fees payable at employment tribunals (coupled with the scrapping of legal aid) has meant a drastic drop in employment cases brought (by around 79% according to a Trades Union Congress report). These are claims for discrimination and unlawful dismissal but also claims for unpaid wages and non-payment of the minimum wage.

There are certainly areas where time (and money) could be saved in the system. The legal community as a whole may be reluctant to embrace all of the changes that electronic working would provide (this is a profession that still uses fax machines and considers the ability to photocopy thousands of pages a necessary skill while training) few would argue that changes must, eventually, be made. Our courts system may be slowly moving in that direction but the lack of progress, and the general lack of faith in any British government’s capacity to implement nationwide IT systems, means that this is unlikely to address the immediate issues.

There is no guarantee that the court fee rises will mean a more efficient and effective court system. The only certainty is that it is claimants who will pay for the court system and that the Treasury will be relieved of its purported ‘subsidy’.

The issue of rising court fees and charges is a pernicious one and, as with many unpopular causes, it is often lawyers who make the most noise about them, but the issue is more than about cash flow and costs. It is of constitutional importance and forces us to ask what value (rather than price) as a society we place on the rule of law.