This Government apparently believes that the civil justice system works best if funded by the users, with actual payment meeting actual costs. Yet the Government has a different attitude in relation to two other key pillars of a civilised society – education and health services.
If the Government was to be consistent with its principles, the civil justice system should not be funded by private users.
There is no point in our citizens having rights if they cannot be readily enforced by an impartial and efficient court system. The infrastructure of justice is of benefit to us all, not just the immediate users of the courts, many of whom are defendants with no desire to be there in the first place. Court users are not to be regarded as consumers popping into supermarkets when they feel like it.
Apart from the lack of consistent principle, the position of the Government is economically flawed. The combination of the deterrent effect of increased fees on potential litigants and the insistence on full cost recovery (or over-recovery, as is currently the case) means that fewer and fewer parties will end up paying more and more.
Seemingly deaf to these points, the Department for Constitutional Affairs now proposes in its consultation paper on civil court fees to introduce daily hearing fees. This is in the face of widespread opposition to these proposals when consultation previously took place in 2004 and 2005.
To add insult to injury, the paper states that daily trial fees are to be piloted in 2008, apparently whatever the responses might be to the consultation.
Ominously, the Ministry of Justice (MoJ) recently carried out research with little publicity, trumpeting in a press release: “Research shows court fees to be no hindrance to justice.” It goes on to state that people are worried more about how stressful or long their court cases would be, rather than about potential court fees.
It is unclear if any commercial litigation practitioners were consulted or interviewed. In fact, the research reveals that those who are not much influenced by fees are those involved in family cases because of the emotion behind such matters. Family cases were the overwhelming focus of the research, with 397 of the 554 telephone interviews conducted related to such cases. Of the remaining 157, only 26 related to individuals claiming compensation. So the only people to whom court fees might directly be relevant were the remaining 131, who were claiming money. Of those 131 all were individuals, including litigants in person, as those from businesses, corporates or public sector bodies had been removed. This is a tiny number on which to base any kind of conclusions.
Also those who had been deterred by court fees from even starting cases obviously would not feature in such research. It is unclear also whether any of the cases were in the High Court, let alone the Commercial Court. The only face-to-face meetings took place in Cardiff, Croydon and Newcastle.
Not for the first time there is a risk that reform to the commercial and business litigation sectors would be purportedly justified by research conducted in an entirely different sector. This is a grave error.
Even if the research was relevant, the report actually confirms that cost is of direct concern to many of those claiming money. “Results do show that court fees are most likely to be a consideration for those claiming money back. Questions in the quantitative survey relating to the impact of an increase in fees show that these individuals are the most price-sensitive,” the report said.
Furthermore, the research shows that at least 60 per cent of the overall quantitative sample (even including family cases) were in favour of fixed, upfront fees rather than uncertain additional fees down the line, such as daily hearing fees.
The MoJ release should have read, with the exception of family cases: “Government research shows that parties are sensitive to court fees and do not want daily hearing fees.”