Pricing out the punter? John Bolch on court fees reform

Family | 20 Mar 2014 6

A headline I read this morning appeared to have nothing whatsoever to do with family law, but it got me thinking about how the future could look for people wishing to commence litigation of any type, including family law. And a pretty bleak picture it is too.

The story was about an enormous drop in employment tribunal claims since the introduction of fees for employment tribunals last summer. According to the Ministry of Justice, the number of claims received by tribunals for the period October to December 2013 was 9,801, a reduction of 79% compared to the same quarter in 2012.

Prior to the 29th of July 2013 there were no fees payable on applications to employment tribunals. Since that date applicants have had to pay one fee when issuing their application and a further fee if the application should go to a hearing. Depending upon the type of claim, the total fees could amount to as much as £1,200. With fees like that, it’s no wonder that many people can’t afford to go to the tribunal.

Of course, it’s a great scam for the government. They kill two birds with one stone – simultaneously bringing in some income and reducing the cost of the system, as fewer claims mean less need for tribunals.

How is all of this relevant to family law? Well, as regular readers will know, the Ministry of Justice is presently consulting upon the reform of court fees. One of their proposals is to increase the fee payable upon the filing of a divorce petition from £410 to £750. This is what they euphemistically call an ‘enhanced fee’, and is about three times their estimate of the cost of uncontested divorce proceedings.

How can such a fee be justified? The nice people at the Ministry say this:

“…we believe that divorcing couples would be prepared to pay a higher fee to complete the dissolution of the marriage. We believe that it is right that those who can afford to pay more should do so to ensure that the courts are properly funded.”

I’m sorry? Who would be ‘prepared to pay a higher fee’? I can’t think of anyone. As for the second part of their argument, the suggestion that everyone who is getting divorced can afford to pay more is just absurd. The fact of the matter is that, notwithstanding that some people on low incomes are exempt from paying fees, such a fee will mean that many people will simply not be able to afford to get divorced.

So, is the experience of the employment tribunal a vision of things to come for family law? The proposal to increase divorce fees is being opposed by many (not least the judiciary), but it could still happen. Imagine the misery that would be caused if three-quarters of those who wanted to get divorced could not afford to do so.

I know that times are still hard, and that there is still a huge deficit in government spending, but pricing people out of access to justice is surely not the way forward. As we all know, if you can’t afford to enforce your rights, then you effectively don’t have any.

 Photo by NoHoDamon via Flickr

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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    1. Andrew says:

      Well, yes, or then again, No.

      It is a historical accident that there are no fees payable in the Tribunals. And if you claim to be the victim of discrimination in any field except employment you have to put your hand in your pocket and pay the court fee – unless you are fees-exempt and that applies in the Tribunal too.

      The fees may be too high – that is another issue – but the need to back what you say with cash is an effective rubbish filter. I once acted for an employer in a discrimination claim, and duly filed five witness statements as per order of the Chairman as we then called them. The Claimant then issued firve further claims against the witnesses, the employer, and me, alleging victimisation.

      In due course they were struck out, but why should my client have been put to the expense of dealing with them?

      In die course the original claim failed but of course without order as to costs. One of these days a court is going to say that the regime under which an employee can bring a claim which if successful leads to compensation with no cap, so that the employer has in practice to be represented, but cannot get his costs back if he succeeds, is not a level playing field. Costs should follow the event and Claimants should if the Defendant requires provide security by insurance; the premium to be recoverable from the Defendant if the claim succeeds.

    2. Melissa says:

      “The fact of the matter is that, notwithstanding that some people on low incomes are exempt from paying fees, such a fee will mean that many people will simply not be able to afford to get divorced.”

      Those who remain on low incomes can still submit an EX160, but unless they’re in receipt of passported benefits, isn’t there the risk that clients who are in work but on low incomes may have to pay a proportionately larger percentage of the petition fee?

      Regarding the increase in fee, I have mixed views. £750 is, depending on both your perspective and also your disposable income, the equivalent of seven good nights out, or perhaps a latest state of the art mobile phone or tablet, or a weeks holiday. What price the chance to be able to move on with your life?

    3. Stitchedup says:

      “What price the chance to be able to move on with your life?”

      Such an over used. mis-used and over valued expression – “moving on” with your life doesn’t have to mean jacking your relationship/marriage in just because you’ve hit a rough patch.

    4. Melissa says:

      I couldn’t agree more. The point I was trying to make is that some will protest about paying the fee, but will easily throw money away on other things. It’s a question of priorities. For some, the chance to be able to have a clean break and move on will be worth foregoing other things for a while.

    5. Andrew says:

      Melissa: You will know that there is talk about “decriminalising” the failure to buy a TV licence.

      I have sat in the magistrates’ court and seen means form from people who have not got a licence but have Sky or satellite or whatever (and are think enough to admit it, but that’s another story) which leaves you wondering where they were when the Almighty was handing out brains and a sense of priorities.

    6. Luke says:

      “Melissa: You will know that there is talk about “decriminalising” the failure to buy a TV licence.”

      Quite right too in my opinion, often relatively poor people are continually harassed, and because they do not understand their rights end up being convicted in the courts even if they are not watching BBC channels !

      The whole thing is wrong, and now we know how corrupt the BBC is one can only call it a disgrace.

      I used to support the BBC as an anomaly that works, but I should have known better, the BBC has effectively been unaccountable for decades and we all know what you end up with in those circumstances…

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