Hiked court fees: Confusion, waivers, opportunism

When the revised court fees were rushed into effect in April this year, they were met with a general perception in the industry of being ill-conceived, flawed, and insubstantially evidenced, with only one primary distinguishable result: the replenishing and sustaining of the Ministry of Justice (MoJ) coffers. 

Despite the MoJ’s protestations that the civil justice reforms implemented have reduced unnecessary and adversarial litigation, the majority believe the reforms to be another bar to encouraging settlement.

July also saw the Jackson Reforms exposed, as the High Court abandoned costs budgeting for clinical negligence cases between October 2015 and January 2016, in what must be an acutely embarrassing step for the MoJ. 

Confusion

The changes to the court fees, when brought into force in March, were implemented by the courts in a flurry of pinned-up warnings on notice boards, and ?a general sense that no one had seen them coming. Within a month, I witnessed first-hand that not only had the changes been rushed into place, but in doing so the government failed to properly explain the changes to court staff.

In two identical claims with values of £15,000, two cheques (worth 5 per cent of the amount claimed) at £750 were both sent to major court centres. Within ?48 hours of each other, both cheques were returned. One court claimed the fee was too low, asking instead for £2,500, which was worth 5 per cent of the next bracket maximum of £50,000. The other court returned the fee for being too high, instead incorrectly applying the old fees provisions. 

Unfortunately for both courts the fees were correct, and, on referring the courts to their own guidance for fees (Form EX50 and the Ministry of Justice Enhanced Court Fees Annex B), both cheques were duly accepted. This was the first of a number of such instances I have witnessed, and it would appear the courts’ confusion has yet to resolve.

Waivers

Within three months of their inception the government was forced to waive new court fees for cases involving asbestos-related disease, in what was touted as a landmark decision.

Naturally, the government did not come easily or willingly to the decision, and it required a judicial review to be lodged on the basis that the hiked court fees were not just flawed but outright unlawful. 

The argument was made ?that, under the revised scheme, claimants could face upfront fees of up to £10,000 in claims valued at up to £200,000. For mesothelioma cases, the majority of such cases would ?fall under this remit. 

Notwithstanding that such a fee (no matter the affordability for the claimant) is absurdly and disproportionately high, it was argued that claimants were not likely to qualify for fee remissions as they could recover £15,000 under the Workers’ Compensation Act, and were thus considered of ‘sufficient means’ to pay the fee. 

Facing arguments that such ?an approach was unreasonable, prevented access to justice, and was outright unlawful, the government conceded by the start of July that the fees should not apply to mesothelioma claims, in what was not only an embarrassing concession but a costly one; the government feeling it was in no other position but to pay the claimant’s legal costs of their application, costing £35,000.

Opportunism

A practical example that crossed my desk came in the form of a defendant’s request to extend limitation under section 33 of the Limitation Act 1980. It came as some surprise, given that there was no risk of prejudice to either party, evidential matters were far from complete, and there was more than sufficient time to ?issue without such an application. 

Without seemingly good legal or factual basis, and with the defendant solicitors’ insistence that they had made applications on this basis plenty of times before, the primary argument was made unashamedly and clearly: the application was made to avoid the issue fee. 

No further research was needed, but the recent cases of Clifford Sayers v Chelwood and Chelwood [2012] or AB and Others v Nugent Care Society: GR and Wirral Metropolitan Borough Council [2009] supported that which was already evident. 

Such an application was baseless and, even if made by consent, the claimant would bear the burden of the application, making acquiescing to it an unnecessary risk. 

The test remained as to whether it was equitable to allow such an application, having regard to the prejudice to either side. That an issue fee needed to be paid would not prejudice the claimant working under a no-win no-fee agreement, or ?a defendant insurer. 

The amount of the hiked fees, although galling for all parties, had no bearing on the test. It is both remarkable and alarming, if the insistence that the defendant had ‘done it plenty of times before’ was taken as true, that the hiking of court fees is prompting such applications with any form of frequency. 

It will be both interesting and concerning to see what the coming months, post reforms, will hold. SJ

Chris Neale is a litigation executive at Bott & Co @bottandco www.bottonline.co.uk