Court fee increases deny access to justice

Family Law|June 22nd 2016

“We share the concerns which have been expressed to us about the increase in the fee for bringing a divorce petition. £410 is already an enhanced fee: a further increase to £550, which is approximately double the cost to the courts of providing the service, is unjustified. It cannot be right that a person bringing a divorce petition, in most cases a woman, is subject to what has been characterised in evidence to us as effectively a divorce tax. We recommend that the increase in the divorce petition fee to £550 be rescinded.

Following the publication of the House of Commons Justice Committee report on Courts and Tribunals fees I wanted to say a few (more) words of my own on the subject of the recent steep rise in court fees. Before I go on I admit that nothing I am about to say has not been said before, but the issue of access to justice is so important that these things need repeating.

I will begin with the divorce fee. The quotation above is the committee’s conclusion regarding the increase in the fee from £410 to £550. As the committee points out, the fee has been referred to as a tax on divorce, as the average cost to the ‘system’ of divorce proceedings is considerably less than £550. The cost was calculated to be £270 as at January 2015, and surely it hasn’t increased much since then – in fact, wasn’t the centralisation of divorce intended to decrease cost? Whatever, charging more than it costs clearly amounts to a tax, with the surplus going into the government’s coffers. The whole concept of court users being taxed is abhorrent. No one wants to go to court, and in this instance, no one wants their marriage to break down but, as the President of the Family Division Sir James Munby pointed out, there is no alternative if you want your marriage dissolved.

But it is not just that it is a tax. The most important thing about the increase is that it prices many people out of access to justice. Yes, there are fee remissions available for the poorest off, but there are many people caught ‘in the middle’, who are financially ineligible for a remission but who aren’t sufficiently well off to afford to pay such fees. As I believe I have said here before, I remember when I was practising having one client who was in tears because she couldn’t afford the court fee to issue divorce proceedings – and the fee was much less then than it is now. Goodness knows how many people now find themselves in that desperate situation.

The committee (which includes a majority of members who belong to the party of government – or one of the parties – that brought in the fee increases) has agreed with the objectors to the increase in the divorce petition fees, and recommended that it be rescinded. I don’t know what the chances of this are but I hope the government is listening.

Another fee increase deserves a mention here, even though it is not in the area of family law. It is surely an even worse example of pricing people out of access to justice. Prior to July 2013 there were no fees payable upon an application to an employment tribunal. Now an applicant can have to pay up to an eye-watering £1,200. The fees have unsurprising led to a huge 70% drop in the number of cases being brought. Just think about that figure. Yes, some claims that were made previously were probably without merit, but nowhere remotely near 70%. That means that a huge number of people have been denied their statutory right to make a claim against their employer. What is the point of having a statutory right if you can’t access it?

Now, I understand that we live in difficult economic times, and that there is extreme pressure to reduce government spending by having litigants pay for the cost of the operation of the courts. However, there is an essential basic principle here, and the committee sets it out clearly:

“Where there is conflict between the objectives of achieving cost-recovery and preserving access to justice, the latter objective must prevail.”

The court fee increases have quite obviously breached this principle. Access to justice has demonstrably been denied to a substantial part of the population. The possible consequences of this hardly bear thinking about: people trapped in unhappy marriages, people suffering because they can’t obtain justice, people seeking redress by taking the law into their own hands, and so on. These fee increases need to be urgently reconsidered.

The justice select committee report can be found here.

Image by Tom Page via Flickr under a Creative Commons licence

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