Report No. 189

Lord Chancellor's recent suggestion for full cost recovery criticized in England

Detailed prescription addressing the twin policies of access to justice and recovery of full cost is given in the guide published by the Treasury of Her 91Majesty called 'The Fees and Charges Guide', published by the Stationery Office in 1993. The Lord Chancellor also announced in Parliament on 15th November, 1998 following principles regarding fees for civil proceedings and access to justice:

(i) Fees should not prevent access to justice

(ii) Protection must be provided for litigants of modest means

(iii) Fees should match the cost of the service for which they are charged

(iv) The pay-as-you-go system should be extended without deterring access to justice

(v) Flat rate fees reflecting the cost of the stage or application should be paid at other charging points

(vi) Issue and enforcement fees should reflect the value of the claim

(vii) Flat rate fees should be set on the basis of average not actual costs

(viii) Fees should be paid by the claimant or where a specific application is made, by the party who made that application

(ix) Fees should be paid in advance

These suggestions have invited serious criticism. In an earlier chapter, reference was made to the decision of the High Court (Queen's Bench Division) in R v. Lord Chancellor ex parte Witham, (1997) 2 All ER 779 where it was emphasized that the right of access to justice was a common law constitutional right which could only be abrogated by specific statutory provision or by regulations made pursuant to the legislation which specifically conferred the power to abrogate that right.

The decision was given in a case that challenged the 1996 amendment by the Lord Chancellor to the Supreme Court Fees Order 1980 which had the effect of repealing a provision which relieved litigants in person who were in receipt of income support from the obligation to pay court fees and permitted the Lord Chancellor to reduce or remit the fee in any particular case of undue financial hardship in exceptional circumstances. While declaring the amendment invalid, the court held that the effect of the 1996 amendment was to "bar absolutely many persons from seeking justice from the courts." (at p.788)

In September 2002, the Court service published a Consultation Paper recommending a range of increases in the setting of civil Court Fees and seeking to ensure a balance between cost recovery and access to justice. The policy of the Government was stated at para 1.7 of the Executive Summary of Consultation Paper, which is as follows:

"1.7 Government policy is that fees should normally be set to recover the full cost of a service although there may be cases in which Ministers agree a service should recover less than full cost. For the provision of proceedings in the Supreme Court and County Courts and of Family and Insolvency proceedings, allowance is made for automatic exemption for those on mean tested benefits or tax credits; for remission or reduction of fees where hardship would otherwise prevent a case being brought; and for a public subsidy for Family proceedings due to their special nature. These allowances act to meet Government policy of protecting access to justice."