Losing fundamental principles of the law: Court fee hikes

The principle of access
to justice forms the cornerstone of the English legal system. Of course, it must be accepted that access comes at a cost; the court
needs to be properly funded, and solicitors should be remunerated for their work. However, in the current drive for austerity there is an increasing risk that this fundamental principle is
being lost.

The staggering increase in court fees earlier this year has been discussed at length by legal commentators, but it is worth reiterating that the increase in fees (of over 500 per cent in some cases) remains, as put by the Civil Justice Committee, 'a matter of grave concern' with 'potentially far-reaching and damaging consequences for access to justice'. Notwithstanding the objections of a number of august bodies, including the Lord Chief Justice, the Civil Justice Council, and the Bar Council, the government remains steadfast in its belief that such a dramatic increase was and remains necessary.

However, from my experience, there has been a marked reluctance for individual litigants or small to medium-sized enterprises (SMEs) to become embroiled in litigation, regardless of the strength of their case. The requirement to outlay large sums at the outset of the litigation process is not something that many parties can either justify
or afford.

The rising costs of litigation, typified by the increase in court fees, make it increasingly important for lawyers to look proactively for innovative funding arrangements to assist clients seeking appropriate redress. This is vital if access
to justice for these parties is to
be preserved. Conditional fee agreements, litigation funding, fixed fees: such arrangements
are not new, but are becoming increasingly utilised by practitioners as clients require more accurate project (and costs) management. Fixed fees in particular are on the rise: this should be encouraged, as such arrangements can be attractive both for clients (who will know what costs to expect) and their lawyers (with fewer write-offs
and disputes over bills).

After the event (ATE) cover
also remains important in post-Jackson litigation. Indeed,
as the costs of litigation continue to climb, so do the risks of losing, making ATE insurance increasingly attractive to individuals and SMEs.

Of course, while civil litigators may have access to inventive methods to assist their clients,
the same cannot be said of our colleagues practising criminal law. The recent boycott of legal aid work in protest of further fee cuts exemplifies the difficulties faced by practitioners seeking
to maintain access to justice for individuals involved in criminal proceedings.

Ultimately, if a party cannot afford to bring a claim before
the court, or defend themselves, whether because of the huge initial costs of commencing proceedings, or because they cannot secure legal aid, that party has no access to justice.

As Jonathan Smithers, the
Law Society president, recently commented: 'There are hard questions to be asked about what price society should be prepared to pay for justice and the very real consequences of not doing so.' From a civil perspective, the difficulties
of maintaining access to justice in this changing market cannot be understated but hands-on project management and innovative fee arrangements
are increasingly vital. SJ

Leigh Callaway is a commercial litigation associate at Irwin Mitchell and a committee member of the junior London Solicitors Litigation Association (LSLA)