Proposals for the revision of fees for civil business

A NI Court Service consultation

November 2006

Introduction

Law Centre (NI) is a non profit provider of legal services to advice agencies in Northern Ireland and to disadvantaged individuals. It provides a specialist legal service (advice, representation, training, information and policy comment) in five areas of law: immigration, social security, community care, mental health and employment law. The services are provided to almost 500 member agencies.  Members include local Citizen Advice Bureaux, independent advice agencies, local solicitors, trade unions, social services, probation offices, constituency associations of local political parties, libraries and other civic organisations.

Law Centre (NI), a limited company and a charity, operates under a waiver agreement with the Law Society of Northern Ireland, allowing it to employ solicitors. The company directors of the Law Centre are members of its management committee, which is elected by its membership, together with some appointed members. Law Centre (NI) legal advisers consist at present of nine solicitors with Northern Irish practising certificates, three employed barristers who previously practised in England or in Northern Ireland, three specialist advisers who are not legally qualified and a para-legal.

We welcome the opportunity to comment on this consultation paper on fee changes.  Below we make some general comments followed by our response to the consultation questions.  Given the nature of our work, we have chosen to comment only in relation to some of the questions posed for consultation.

General Comments

Providing there is no adverse impact on access to justice, we recognise that it is important to reduce the deficit between the cost of civil business and the fees which, for 2004 – 2005, showed a disparity between costs and fees of approximately 22%.  We note that the intention is to recover 97% of costs (leaving a 3% deficit) in the future.  In general terms, we are concerned, however, that in the case of some charges, there is a disproportionate increase as compared with the patterns of increase from 1998 (i.e. 10% in 1998; 10% in 2002 and 3% in 2004).  Where there is a significant increase in the level of fees, it is important that there is flexibility to depart from the general principle of payment of fees in advance and permit payment by instalment.

Given that the focus of our work is on promoting social justice, we strongly support the principle that fees should not prevent access to justice and should make appropriate provision for litigants of modest means.  This is particularly important given that the financial eligibility test for legal aid has not kept pace with inflation and consequently, the proportion of the population eligible for legal aid has considerably reduced over a period of years. Moreover, the requirement for a great number of those eligible for legal aid to make an individual contribution to legal costs can create significant hardship for those pursuing a claim.   For those just above the legal aid eligibility threshold, it is important that the possibility of proceeding to litigation, as necessary, should remain open.  The current power to remit fees in exceptional circumstances involving hardship, in addition to the coverage provided by legal aid, is important and we look forward to sight of the benefit entitlement and income level criteria that will be applied in these circumstances.  We are pleased that applications arising from domestic violence related matters will be taken out of the charging regime altogether.

Response to Consultation Questions

Consultation Question 1: Please indicate which fees you think should be set a different level.  What levels do you advocate and what are the reasons for your views?

A number of fees have been subject to significant increases.  We note, for example, that the fee for notice of motion for judicial review where application for leave has been granted is set to increase from £52 – £200 (approximately a fourfold increase).  A significant increase is also envisaged in the court of appeal costs for filing a notice of appeal or case stated from £180 - £500.  In the magistrates court the fee for a written application for case stated has increased more than tenfold from £9 to £100. 

We comment below on the new adjournment fee. 

These are significant increases and we are concerned that the levels of fees set for some business may limit access to justice for some groups of people.  We would question whether some of the proposed increases represent a proportionate response to the objective to the realised, to address the deficit level between the costs of civil business and the fees generated. 

Consultation Question 2: Are there any particular changes proposed that you strongly support or oppose?  What are your reasons?

The small claims court has been an important vehicle for accessible resolution of disputes.  We note that in some cases, the fee has almost doubled (from £16 - £30 for claims not in excess of £150) for applications to small claims.  While the increases in fees in the small claims court are modest in terms of the amounts, it would be unfortunate if an increase in fees were to limit access to justice for any individual.  Even small increases in costs may amount to a significant financial burden for some groups of people.  It may be argued, therefore, that consideration should be given to freezing the fees in relation to applications for small claims and the resource deficit in respect of the work of the small claims court met by the projected overall increase in costs for all civil business. 

We recognise that it is important in the interests of the judicial process that adjournments are properly managed and we note that a new fee has been set for an adjournment application in relation to cases listed for hearing when adjournment is sought within four weeks of the hearing date.  We also note that there will be judicial discretion to waive all or part of this fee.  We would wish this discretion to be exercised with flexibility where an adjournment is unavoidable.   

Consultation Question 5: Do you consider that the internet offers a potential for improving access to justice and would lower fees encourage you to use online facilities?

We note that the Court Service is committed to improved efficiency and therefore control of costs through investment in new technology.  We support this commitment.  The Law Centre makes some use of electronic communication in relation to judicial review and we would consider further use of online facilities, where appropriate, in the interest of cost-saving. 

Conclusion

While we recognise the imperative to reduce the current deficit between the overall cost of civil business and the fees paid for same, we believe that promoting access to justice must be the overriding consideration informing the approach to any increases in the fees for conducting civil business.  We trust that you find these comments helpful and look forward to feedback on the outcomes of this consultation exercise.

For further information about this response contact:

Policy Unit, Law Centre (NI), 124 Donegall Street, Belfast, BT1 2GY

Tel: 028 90 24 44 01  Fax: 028 90 23 63 40  Textphone: 028 90 23 99 38