Report No. 189
Again at para 3.2 it is stated:
"Access to justice is protected by automatic exemption for litigants on specified means tested benefits and discretionary remission (in part or in full) for those who do not benefit from exemption but would face exceptional hardship if required to pay fees, or required to pay them in full. A leaflet 'Court fees and do you have to pay them?' telling the public more about exemption and remission and how to apply for them is available from any Court office."
The above policy of the full cost recovery has been criticized by many eminent jurists. Lord Woolf in July 2002 accused the Government of 'flawed thinking' over their proposal that Civil Court could fund themselves. He said, the policy was 'self-evidently nonsense'. No other country in the world had such a policy and the effects were 'pernicious and dangerous'.
The Civil Justice Council which is an advisory non-departmental public body established under the Civil Procedure Act, 1997 and chaired by the Master of the Rolls, Lord Phillips in November 2002 published advice to the Lord Chancellor on the impact of the Treasury policy of full cost recovery on the Civil Justice System. The reports provide four broad reasons why the Government is wrong to consider that civil justice should be largely self-financing. It says full cost recovery
(a) is not possible without inappropriate cross subsidy;
(b) limits arbitrarily the nature and quality of the service provided within the civil justice system;
(c) may limit access to Courts; and
(d) is wrong in principle.
The Civil Justice Council concluded: "The policy of full cost recovery is relatively recent in historical terms. It is not the approach followed in the major English-speaking common law jurisdiction, nor is it the approach followed in most, if not all, other European jurisdictions."
"In the view of the Civil Justice Council the policy should be abandoned. The Council accepts that litigants should be charged fees, but they should not be disproportionate in relation to the amount claimed, and proportionality should be the primary factor in determining the level of fees. While it is of course necessary to forecast fee income as accurately as possible, it should not bear any set relationship to Court Service expenditure."
The Chairman of the Council, Lord Phillips of Worth Matravers, Master of the Rolls, said:
"The policy of full cost recovery in the civil justice system has only existed since the early 1980s and has never been properly debated in Parliament. It is not the approach followed in other major common law jurisdiction, nor is it followed in European jurisdiction.
Whilst it is not wrong to require the citizen to pay Court fees, access to the civil courts must be seen as providing a social and collective benefit, as well as a service to the individual. Fees should be proportionate to the amount at stake."
In March 2003, the peers in the House of Lords amended the Courts Bill, to require the Lord Chancellor to have regard to access to justice, when fixing court fees. New civil court fees have come into effect from April 1, 2003, designed to balance costs with access to justice, when fixing court fees.
We have referred to the above developments in the United Kingdom only for the purpose showing that the concept of recovery of the expense on the justice delivery system from the litigants has been more or less condemned. It has been pointed out that no civilized system in any commonwealth country or in the continent has come forward with such a concept. The above views, particularly expressed by Lord Woolf and Lord Phillips are on the same lines as the views of the Law Commission, other Committees, Judges and Jurists etc., to which we have elaborately referred to above.