Assuming that those people responsible for the hike in court fees are not utterly stupid (a large assumption), there must be some other motivation for the increase. There are a number of possibilities, but I do not accept the proffered one that the courts service must pay for itself. This is clearly a pipe dream.
Only the very rich and corporations will not be deterred from issuing claims by the level of fees. Such claims tend to be more complex in nature and last longer. Therefore, the likely result of the increases is to restrict courts to considering long and expensive cases.
There is, of course, the suggestion that the increase is motivated by the idea that either solicitors will bear the rise in fees (possibly in major firms, but wholly impractical for most of us), or that it will drive claims into alternative dispute resolution.
It worked in the employment tribunal, goes the logic, so why not in the court?
It might achieve the desired result. But I expect the outcome will be many fewer claims in total and lower damages paid to clients. Pre-action ADR is only likely to work if the parties know that in the event that ADR does not resolve the claim, formal proceedings will follow. If the prospective defendant knows that, in reality, proceedings are unlikely if ADR fails, why should they bother to settle at all?
Furthermore, in the event that there is a major switch to ADR, clients will have to fund their claims through a damages-based agreement. No sensible defendant will agree to bear the claimant’s costs if they do not have to.
Then there is the problem that for low-value claims, the prospective claimant may be unable to find a lawyer at all, as the proportion of expected damages the solicitor is allowed to take may be less than their costs. I do not have a problem with individuals having to present their claims themselves, but where is the equality of arms? The defendant will always have their lawyer.
The answer to this conundrum can be found in the repeated reference by politicians to the ‘litigation culture’. They consider that people who sue are bad people. By raising court fees to such an extent that litigation is no longer a practical proposition for many clients, they have at a stroke prevented all those bad people and their rapacious lawyers from bringing those nasty (and, of course, wholly unjustified) claims against poor innocent victims forced repeatedly to pay out for unmeritorious claims.
The reality, of course, as anyone working at the coalface knows, is that there are many good claims which will now simply be squeezed out. I have some difficulty in accepting that the government does not know this.
Someone has made a decision that access to justice is now a qualified right against which must be set the contents of the public purse. The only societies which accept that, under some circumstances, it is appropriate to deprive a citizen of their right to argue their case before a court are totalitarian states.
What next? ‘Let’s kill all the lawyers?’
Howard Shelley, KJ Conroy & Co, Birmingham
