The Senior Judiciary to the Ministry of Justice has criticised the Ministry of Justice’s consultation paper, ‘Court Fees: Proposals for Reform’[i] which aims to increase the court fees across England and Wales. The criticism was published on the 4th of February 2014 and followed previous criticism aired by the Civil Justice Council[ii] in January 2014. The opening paragraph of response to the consultation paper states:
‘Access to justice is a fundamental feature of any society committed to the rule of law. It is not a service which the State provides at cost, but an element of the State and its governance essential to the rule of law and the operation of a free market economy. The State is therefore under a duty to provide effective access to justice irrespective of the State’s ability to secure full-cost recovery.’[iii]
The consultation paper states that:
‘The government believes that it is reasonable to charge more in court fees for certain types of proceeding, because we believe that the party bringing the case will be able to afford to pay a fee which better reflects the value of the proceedings to them.’ (Court Fees: Proposal for Reform)
The types of proceedings include money claims, commercial proceedings, hearings (fast track and multi-track), and divorce proceedings. The ambit of divorce proceedings stretches from financial remedy to both public and private child law cases, with private child law applications being levelled at £215, an increase from £180 and £175 for certain applications. Applications in private child law cases that are currently charged at £95 will not be increased. The consultation paper states that they ‘estimate that the cost of an uncontested divorce was around £270. The government’s view is that the fee for a divorce petition should be set at a level above costs. Our proposal is that the fee should be £750, or around three times the cost of the proceedings.’ (Court Fees: Proposal for Reform). They follow this suggestion with a question ‘Do you agree that the fee for a divorce petition should be set at £750?’ (Court Fees: Proposal for Reform). The Senior Judiciary stated that they do not agree with the proposal to increase the divorce petition fee to £750. They stated that:
‘Almost certainly, the suggestion would act as a significant impediment to access to justice for many individuals. The great majority of petitioners are women. Many of them will be of limited means, but not entitled to fee remission and the new fee will be unattainable. They may well forgo divorce; and when forming new relationships may prefer to cohabit rather than remarry. Thus, they would lose the many financial and other protections afforded to married women under the existing law.’ (Court Fees: Proposal for Reform).
Furthermore, they stated that the ‘enhanced fee… significantly exceeds the value of the work in administering the case in question’, and that ‘The Government accepts (paragraphs 71 and 188) that the current fee of £410 already exceeds the actual cost of the administration of an undefended divorce case, namely £270. Currently, the profit element on each petition is £140. There are around 120,000 such petitions annually. The revenue raised from a captive divorce market is already £16.8 million (£140 x 120,000 = £16.8 million).’ (Court Fees: Proposal for Reform). In addition the Senior Judiciary states that they do not understand, ‘why it is right that those who can afford to pay more should do so to ensure that the courts are properly funded. We question whether it is appropriate that this particular sector of the litigating community should assume so large a responsibility to fund the courts properly, rather than the general taxpayer.’ (Court Fees: Proposal for Reform).
According to the Senior Judiciary the increase of court fees across the board would result in an individual’s access to justice being severely impaired. When you combine this with the reduction in legal aid many individuals may forgo resolution of their legal matters. Individuals may opt to remain married and simply separate, which could result in parties not gaining any of the benefits of divorce such as asset division and spousal maintenance. In addition they would also be left unable to remarry. Furthermore, some parties find it impossible to resolve their private child matters without the input of the court and with the increase in costs in this regard they may not have access to this input. This could leave parents with limited access to their children and children without defined routines.
[i] Ministry of Justice, Court Fees: Proposal for Reform, December 2013, (this document can be found through the following link: https://consult.justice.gov.uk/digital-communications/court-fees-proposals-for-reform)
[ii] Civil Justice Council, Civil Justice Council response to Ministry of Justice consultation paper Court Fees: Proposal for reform, January 2014, http://www.judiciary.gov.uk/JCO%2FDocuments%2FCJC%2FPublications%2Fconsultation+responses%2FCJC+response+to+MOJ+consultation+on+Court+Fees.pdf
[iii] Judiciary of England and Wales, The Response Of The Senior Judiciary To The The Ministry Of Justice Consultation Paper Court Fees: Proposals For Reform (Cm 8751), http://www.judiciary.gov.uk/Resources/JCO/Documents/Consultations/senior-judiciary-response-court-fees-proposals-for-reform.pdf
Photo by Ceshe via Flickr under a Creative Commons license.