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Faculty claims potential illegality in breakeven court fees policy

10 January 2018

Scotland could be operating an illegal regime of charging litigants court fees at a level designed to fund the civil justice system, the Faculty of Advocates has suggested.

In its response to the current Scottish Government consultation on proposed increases to court fees over the next three years, Faculty holds to the stance it has taken since 2008 – that as a matter of principle, the civil justice system should be funded by the state, not litigants.

Ministers plan to impose a general increase of 2.3% with effect from 1 April 2018 to reflect inflationary pressures, followed by further increases of 2% with effect from 1 April 2019 and again from 1 April 2020. This follows average rises of 24% last year – though with wide variations between different courts and stages of process – in an attempt to achieve full cost recovery. The deadline for responses is this Friday, 12 January.

"The fees which it is proposed to increase are ones which the Faculty of Advocates considers unjustified in principle, and which appear to be set without proper evidence as to their effect", Faculty states in its response.

Looking to last year’s Supreme Court ruling, in Unison v Lord Chancellor, that employment tribunal fees were unlawful, Faculty said the court had set out in the clearest terms why unimpeded access to justice was of vital importance to society at large.

"No part of our democratic society could function without our civil law being maintained by the operation of our courts. There is no warrant to shift the cost of the courts entirely onto litigants, when the whole of society benefits from them”, it argues.

"The purpose of the fees regime is to avoid paying for the courts from general taxation. The principle underlying the fees regime is that the user pays. The moral and philosophical justification for this has never been explained. The Faculty of Advocates considers that it cannot be explained."

While the consultation paper notes that the UK Supreme Court held that fees paid by litigants can, in principle, reasonably be considered to be a justifiable way of making resources available for the justice system and so securing access to justice, Faculty states that “That is no justification for a regime aimed at recovering the whole cost of the courts, or as much of the cost as possible, from litigants rather than the taxpayer.

"In fact, one can infer from the judgments in Unison v Lord Chancellor that the UK Supreme Court would be likely to find such a fees regime illegal and ultra vires.

"It should be noted that in Unison v Lord Chancellor there was no need for conclusive evidence that the fees in question had prevented people from bringing claims. It was enough to make a fees regime unlawful that there was a real risk that persons would effectively be prevented from having access to justice."

The submission continues: "It appears that the Scottish Government has done no research into the affordability of the fees regime now in force, either prior to its introduction or subsequently. Prima facie, then, the fees regime may be illegal and ultra vires because of its aim; and even if that is not so, there appears to be no way of demonstrating that the fees in the regime are 'set at a level that everyone can afford, taking into account the availability of full or partial remission'."

Click here tio view the full response.

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