Summary
In this Report we consider changes introduced in recent years by the Government to fees for court users in the civil and family courts and in tribunals, as well as proposals for further changes which are yet to be implemented. Fees may be charged to achieve partial or full recovery of the costs of the courts, or at an enhanced level in excess of those costs. Our Report focuses on changes which have had, or may be expected to have, a major impact on litigants and on the caseload of the courts. It looks at the financial and policy objectives of the changes, and the impact which changes have had, particularly in relation to the extent to which they have affected access to justice. Much of the Report deals with the impact of fees introduced in 2013 for bringing cases before employment tribunals, which have been particularly controversial.
We consider a range of views expressed about the principle of charging fees to court users, including at full cost-recovery or enhanced levels. We conclude that a contribution by users of the courts to the costs of operating those courts is not objectionable in principle. The question is what is an acceptable amount to charge taking into account the need to preserve access to justice, and we say that the answer to that question will vary from jurisdiction to jurisdiction, and between different types of case. We also conclude that the introduction of fees set at a level to recover or exceed the full cost of operation of the court requires particular care and strong justification. In addition, we comment on the adequacy of the research which the Ministry has used in formulation of its fees proposals, saying that the Ministry should not represent the quality of its evidence base as being higher than it is.
The impact of fees is clearest in relation to employment tribunal fees, and we took considerable evidence on this subject. Unfortunately at the time we agreed our report the Government had not published its post-implementation review of the fees, which it had originally intended to complete by the end of 2015. We describe this delay as unacceptable and detrimental to our work, and we call for the review to be published forthwith. We recommend that the overall quantum of fees charged for bringing cases to employment tribunals should be substantially reduced; fee remission thresholds should be increased; and further special consideration should be given to the position of women alleging maternity or pregnancy discrimination.
Our other principal conclusions and recommendations can be summarised as follows—
- we recommend that the Government review the impact of the April 2015 increase in fees for money claims on the international competitiveness of London as a litigation centre, and we say that the Government should not resurrect its proposal to double the £10,000 cap, or remove it altogether, unless such a review has been undertaken;
- we recommend that the increase in the divorce petition fee, from £410 to £550, be rescinded;
- we express the view it is unwise for the Government to have brought forward proposals for fees set at a level to achieve full-cost recovery in the Immigration and Asylum Chamber before having published its review of the impact of implementation of employment tribunal fees;
- we recommend that a pilot scheme should be set up of a system in which there is a graduated or sequential schedule of fee payments whenever there are substantial fees payable in total in respect of a case in the civil or family courts or tribunals, allied with a requirement for the respondent to pay a fee;
- we commend to the Ministry the Law Society’s suggestion that it should introduce a system for regular rerating of remission thresholds to take account of inflation, and that it should conduct a further review of the affordability of civil court fees and the remission system, considering means of simplification, for example through automatic remission for all basic rate taxpayers.
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16 June 2016