A magisterial rebuttal

The ageing BBC sitcom Yes Minister still serves as a handy primer for those who wish to interpret the tortuously deliberate and routinely euphemistic language of the Establishment. Two of mandarin perm sec Sir Humphrey Appleby’s most withering epithets when asked to evaluate a minister’s policy proposal are ‘original’ and - worse - ‘imaginative’.

‘The other killer,’ minister Jim Hacker confides to his diary, is ‘novel’.

‘Novel’ is an adjective that appears more than once in the senior judiciary’s critique of the government’s court fee reform proposals. I would like to believe there is an element of unconscious - perhaps even conscious - homage here. For the judges’ forensic deconstruction of the plans would not disgrace Sir Humphrey himself. It is a beautifully wrought document and I enjoyed reading it; not something I often say about communiqués from HM Judiciary.

But it is a sobering document too. How worrying that our finest judicial minds consider themselves obliged to explain to ministers what actually underpins the rule of law in a properly functioning capitalist democracy. ‘Access to justice 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 freemarket economy,’ they write.

The tone is that of an exasperated Oxbridge Don attempting to enlighten one of his dimmer undergraduates: ‘The state is therefore under a duty to provide effective access to justice, irrespective of the state’s ability to secure full cost recovery.’

Unimprovably put, you might think. But, as the judges acknowledge, Grayling et alia simply do not accept this. Indeed the proposals are predicated on a ‘view that recourse to the courts is a matter of discretionary spending by those who can afford to and should pay its full cost’. Demotic translation: ‘Justice in the courts is for them what can pay for it.’

Whether you agree with some of the proposals, or none (and the senior judiciary is not invariably hostile), a document as shoddy and disingenuous as Court Fees: Reform Proposals should not have been circulated for learned consumption.

The howlers, contradictions and lacunae are manifold. So the Ministry of Justice’s ‘clearly inadequate’ research was undertaken by the consultancy directly involved in developing the plans; and extended to 18 phone calls. This ‘research’ is therefore fatally compromised and practically worthless.

Moreover, those who drafted the document do not seem to know how the courts actually work, or what ‘commercial proceedings’ comprise.

Take the courts housed in the Rolls Building. The consultation document blithely asserts that cases there ‘often involve large multinationals or wealthy individuals’, when there is no statistical evidence to support this. Indeed, as the judges patiently explain, a significant majority of cases almost certainly involve UK-based SMEs and individuals of modest means.

We are invited to conclude that the consultation’s authors have absorbed too many lurid tales of Eastern European oligarchs arriving in convoy at Fetter Lane and struggling to find parking spaces for their blacked-out people carriers: ‘The intense publicity surrounding cases involving very rich individuals should not lead anyone to think that the great majority of individuals involved in litigation in the Rolls Building fall into that category or anything like it.’

On to paragraph 52 of the response. Many cases properly brought in the Queen’s Bench Division are effectively indistinguishable from those brought in the Rolls: eg claims by investment bankers for payment of bonuses worth millions are brought in the QBD, as are claims against professionals including solicitors arising out of commercial transactions.

‘There can be no obvious justification for charging such claimants a lower fee than is required of an individual bringing a similar negligence claim against solicitors but arising out of a property transaction, the usual venue for which would be the Chancery Division,’ the judges point out.

In summary, the senior judiciary calls for a ‘public debate’ on fundamental issues arising from the consultation: how providing access to justice and the rule of law for everyone can be reconciled with the proposition that the courts should be financed only by those who use them; and the principle of cross-subsidy (by civil court users of family court users, and where other users compensate for fees remitted where people cannot to afford to pay).

This is a vain hope, I fear. Public policy just isn’t done that way any more. As we have seen time and again, ministers are none too keen on any public debate that is not helpfully refracted through the pages of the reactionary tabloids. Judges are ‘fatcats’ too, after all.

Paul Rogerson is Gazette editor-in-chief