Civil Proceedings and Family Proceedings Fees (Amendment) Order 2015 — House of Lords, 2015-03-04
Topic: Law and Crime
Edward Faulks (Conservative, Centre-right): My Lords, I am grateful to all noble Lords for their contributions to this debate, passionate as they have been. All noble Lords who have taken part—I hope that noble Lords will forgive me if I include myself—are passionate about access to justice and about the rule of law. I hope that in that sentence I have answered two of the questions posed by the noble and learned Lord, Lord Scott of Foscote. Of course, I very much include the noble Lord, Lord Howarth, who, although not a lawyer, has a long history of involvement in access to justice and stressing its importance in our constitution I think it would also be accepted by all those who have taken part that we need a properly funded court system. I said in opening this debate that we are investing more than £375 million over the next five years but that we consider that those who use the courts should make a significant contribution to the cost. The Opposition in the House of Commons did not disagree with the aspiration of full cost recovery, or, and I quote Mr Andy Slaughter, that, "in some cases the fees should be more than full cost recovery".—[Official Report, Commons, First Delegated Legislation Committee, 23/2/15; col. 4.] Of course, I accept that no litigant will welcome increased costs and I also acknowledge that no litigation solicitor will be applauding increased costs either. I acknowledge that concerns about access to justice are entirely legitimate and should be very much a part of any movement in this direction The statutory instrument can perhaps be safely divided into those smallish claims—90% or so—where there is no increase in the fees, and the very large claims, which I will come to later. I think that it is fair to say that the main focus of the debate has been on the middle-size claims—those perhaps brought by SMEs or by those seeking damages for personal injuries or clinical negligence. The question is whether the court fees, as a proportion of the sum claimed are such as to be a deterrent and would prevent people having access to justice. It is true that in percentage terms there is potentially a significant increase. For example, as a proportion of £150,000, court fees are now £7,500; they were £1,315. In percentage terms that is significant. But, of course, the original fees until this statutory instrument was introduced, should it proceed, were very modest It is also worth bearing in mind that litigation is very much an optional activity. Anybody who is deciding whether or not to sue will have all sorts of factors that they bear in mind. There are plenty of reasons for not bringing proceedings, one of which is uncertainty of outcome. Anyone advising a claimant will probably need to satisfy that claimant that there is at the very least a better than even—probably a 75%—chance of success before they commence proceedings. Another relevant factor is the solvency of the defendant or the likelihood of recovery. All those are matters that will inhibit somebody in deciding whether or not to sue. Of course, there is also the factor of the cost and extent of their lawyers’ fees What is important is that the court fees generated here would be recoverable from any defendant in the event of a successful claim. They are a disbursement and cannot be challenged. The same could not be said for solicitors’ or barristers’ fees, which are always potentially subject to challenge. If a claimant has a sound claim and if satisfied about the solvency—of course, one can never be sure about these things—of the defendant, these sums will be recoverable. That is relevant, first, to the question of access to justice, whether an individual will seek access to justice, and also as to whether a solicitor will feel able, as is often the case in personal injury or clinical negligence cases, to provide assistance with the upfront costs on the basis that they will be recovered in the fullness of time Of course, there are fee remission provisions. No noble Lord has mentioned those, but they may be provided. Where there is a household income for couples without children of less than £1,085 per calendar month, there will be full remission—more with children—and there are also provisions for partial waiver. Capital will be taken into account, but this excludes the principal dwelling-house and compensation payments and pensions. The waivers are more generous for those over 61. In suggesting that access to justice will be denied, one should bear in mind all those factors When dealing with the top end of claims, the original consultation, as has been said, suggested a higher figure—twice the figure of £10,000. After consultation the Government changed their mind about that and listened to the consultation. The arguments about recoverability apply likewise. But, of course, the larger the claim, the less significant the court fees will be as a proportion of the prospective expenditure The quality of our judicial system, of which my noble friend Lord Phillips is rightly proud, is very high, and I am sorry that the noble Lord, Lord Howarth, at least in terms of access to justice, feels so little faith in it. Certainly I do not understand him to be criticising our judges in any way. The quality of justice is, of course, a significant attraction to litigants and will, I suggest, continue to be an attraction. The Government bear in mind the possibility, where there is a choice of jurisdiction, of New York, Singapore or Dubai, but are satisfied, having consulted widely, that this is a reasonable and proportionate increase for these large claims Mention has been made of arbitration, and even mediation. Where arbitration is an option, it has to be borne in mind that you have to pay for the arbitrator’s services. Here, were a case to go the entire distance, the judge is provided, as it were, as part of that court fee. In those rare cases where a case goes to trial, frankly, the fee for the use of court premises, court infrastructure and the services of a high-quality judge is very good value indeed. Then there is the 90% below £10,000, where there is no difference. Those are the smaller claims. Those with smaller pockets, perhaps, will have to pay no more than they already pay. How do we get to 90%? The information comes from Her Majesty’s Courts and Tribunals Service, which states that 90% of claims are for less than £10,000. That is currently the case and the basis on which we reach that figure The noble Lord, Lord Beecham, mentioned employment tribunal fees, as indeed he did at Questions last week. We estimate that the employment tribunal fees will generate about £10 million per annum, and our current forecast is that income is broadly in line with expectations. I share the view of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on the fees for employment tribunals. The question of personal injury claims was raised by the noble Lord, Lord Beecham, and other noble Lords. Conditional fee arrangements have been changed as a result of the LASPO Act, but "after the event" insurance still exists and the "after the event" insurance market still exists. In appropriate cases where an insurer thinks that a claim has merit, it enables court fees to be incurred, which are, as I said earlier, recoverable from the other side The noble and learned Lord, Lord Brown, asked why we considered the possibility of making higher fees for commercial claims. We did, and we considered the responses and reduced the figure because we bear in mind that a balance has to be struck between trying to recover some of the money that we think is expended and attracting potential litigants. We did not seek judicial consent; that is a matter for the Government. The question that I was asked during Oral Questions by the noble and learned Lord, Lord Mackay, was about whether the judges had been consulted. He also suggested that he had experienced the possibility of them being judicially reviewed in connection with this. I think noble Lords might agree that, ultimately, the Government are accountable for these matters, and it would be somewhat invidious for judges to have to decide things. They are, of course, entitled to have their opinions taken into account and they have expressed them, as a number of noble Lords have said, in pretty firm terms It was said, I think by my noble friend Lord Phillips, that there is no mention of justice in Section 180 of the Anti-social Behaviour, Crime and Policing Act; but he will have seen from the statutory instrument that Section 92 of the Courts Act refers specifically to considering access to justice.