Should law and justice be free? Part 2: Court fees

One of the problems with bringing court claims nowadays is the eye-watering court fees.

For example, the court fees for issuing any kind of money claim ranges from £35 for a claim value of up to £300 to £10,000 if the claim is greater than £200,000.

That’s a lot of money.

In that context, a claim for possession looks rather cheap at £350 or £325 for claims brought via the Possession Claims Online system (PCOL).

However, issue fees are not the only fees that you pay. There are now hearing fees – which range from £25 (for a modest small claim) to £1,090 for a ‘fast track’ claim.

Then there are application fees for various things – the most common being the general application which is £255 and appeals which range from £120 (small claims) to £240. Plus there are the various enforcement fees, and even a copy document will cost you £10.

You can find a list of all the fees (at the moment) here. There used to be a very useful and convenient web page but as you can see the government has seen fit to withdraw it.

How can these fees be justified?

The reason given for the dramatic hike in the fee in recent years is that the fees have to cover the cost of running the courts system.

It is quite expensive to do this. For example, there are:

• The cost of maintaining the building
• The cost of the IT
• Staff costs and
• The Judge’s salaries

With austerity, the government was less willing to finance this – hence the fee increases. However, inevitably the result of this is to discourage people from going to law.

The case of the Employment Tribunal

The most dramatic example of this is with the Employment Tribunal. The Employment Tribunal was set up in 1964 and from then until July 2013 was free to use. However, fees were then introduced which in 2017 could reach £1,200 (including the hearing fee) for unfair dismissal claims – a lot of money for someone who has just lost their job.

As a result of this, there was a 79% drop in the number of claims brought.

However, in a massive win for workers, in July 2017 the Supreme Court ruled, after a challenge had been brought by Unison, that the fees order was unlawful and should be quashed.  So claims to the Employment Tribunal can once again be brought free of charge.

No doubt the number of claims being brought will rise as dramatically as they fell.  Plus the government now has to refund all the fees paid.

Not just a ‘consumer service’

Although the fees problem has been resolved in the Tribunals, this is unlikely to happen in the civil courts, where the substantial fees burden on consumers is causing grave concern to the Judges.

There was an interesting article in the Law Society Gazette in June 2017 reporting on the Michael Ryle Memorial Lecture by the Lord Chief Justice, Lord Thomas of Cwmgiedd.

“Thomas dealt in turn with breakdowns in understanding between the judiciary and parliament, the executive and the media. Lack of understanding with the executive, he said, is illustrated by ‘the characterisation of the courts as being service providers akin to a utility like water supply, of litigants exercising their constitutional right of access to the courts to vindicate their rights, to being consumers who, like any other consumer, must pay for the service they receive.’

Attacking the ‘user pays’ principle underlying recent court fee increases, he said: ‘What has been needed, and still is needed, is an understanding by all that the judicial branch is just that: a branch of state, and, crucially, the branch that with parliament secures the rule of law.

As such it cannot be confused with, or referred to as, a provider of consumer services. Equally, there cannot but be a proper recognition that it should be funded properly by the state.’”

The dangers of pricing the people out of justice

The civil justice system is basically a system used to regulate disputes between people. It is a system of interlinked rules (‘the law’), which is reasonably fair (on the whole – there are some exceptions) and trained Judges adjudicate to decide who is in the right.

However, if the legal system is unaffordable – where do people go for justice?

There is a danger that they may turn to other ways to enforce their rights. One example being landlords forcibly evicting tenants rather than getting a possession order and using the bailiffs.

Something more sinister

There is also the point made by Lord Thomas that the justice system is a branch of the state. It is there to enforce the law if the executive acts illegally.

A classic example of this is the recent case brought by Gina Miller to force the government to seek approval from Parliament before triggering Article 50 and Brexit.

The procedure used was ‘Judicial review’ which is used in many other situations (including the Unison claim regarding Employment Tribunal fees discussed above), to review decisions of government, local authorities or other ‘public bodies’ to see whether they were lawfully made.

As part of the Judicial Review, a Judge looks at whether the law has been correctly applied and the proper procedures followed.

The fees for Judicial Review are not as high as bringing a money claim for over £200,000 but are still fairly chunky at £151 to request permission and then a further £700 to proceed to a full hearing. Not something that someone on benefit could afford without help.

Checks and balances

Judicial review claims may be annoying to the government department concerned but they are an essential part of our democracy. They are one of the ‘check and balances’ which keep the ‘executive’ part of our constitution under control.

It is an important part of our constitution that there are three state ‘powers’ which are independent of each other:

• The executive – the PM and cabinet along with the Civil Service
• The legislature – Parliament, and
• The Judiciary

So the courts and the judicial system is a bit more than just a ‘consumer service’ which the government has the right to make the people pay for. It is an essential part of our constitution which the people should have access to.

However, the current excessive court fees are putting this at risk.

I personally don’t have a problem with modest court fees. Courts have had fees since medieval times. There is also the valid point that fees discourage vexatious claims.  But the fees should be affordable, and not be a barrier to justice for the average person.

Court fees though are not the only barrier to justice. There is also the cost of legal advice.  Legal advice is costly because it is complex and takes years of study to be able to understand it.  But why is this?

We will be considering this next week.