Going to court can be very expensive. Being represented at court involves paying for a solicitor or barrister’s time at court, and the preparations for any hearing. However, it could be argued that litigants are not paying the full cost of the court proceedings.
This is because the contribution that the parties pay to the court’s running costs is minimal. An application to the court for a financial order as part of a divorce incurs a court fee of £255. That application fee does not even come close to the cost of providing a judge, court staff and court premises for a case lasting months, including up to three court hearings, one of which – the trial – could last anywhere from half a day to several days, potentially weeks in a difficult big money case. If any applications are issued within that application (e.g. an application for an expert witness to be instructed to provide a report), there would be another fee payable of £155. If an agreement is reached during the case, there would be another fee of £50 to pay to ask the court to consider and approve an agreed financial order. That’s it.
Similarly, an application to the Family Court for a child arrangements order to decide where children live and how much time they spend with each parent is equally very cheap. A court fee of only £215 gets you judges, magistrates, court legal advisers, court staff and court buildings for up to three hearings in straightforward cases; a First Hearing Dispute Resolution Appointment, followed by a Dispute Resolution and then finally a trial. Again, the trial can take anywhere between half a day and days on end. In complex cases there can be repeated hearings until eventually a final order can be made. All of this costs just £215. If any applications are issued within those proceedings, such an application for an interim order, then there would be a fee payable of £155, but this also doesn’t come anywhere covering the actual cost incurred by the court.
Interestingly, the one area where the Family Court may actually turn a profit is undefended divorce proceedings. The court charges a fee of £550 for an undefended divorce. It is increasingly an administrative rather than a judicial process, with the bulk of the work being done by court staff and legally qualified assistant justices’ clerks, and minimal involvement by an actual district judge. The actual cost of processing the divorce was reported a few years ago to be a lot lower than the actual cost to HMCTS (I have been hunting in vain for a link to show, this; if I can locate one, I will post it then). This may have changed now that the court is transitioning to an online divorce system, with no-fault divorce on the way.
In 2015, when justifying a rise in court fees, the Ministry of Justice argued that it was necessary as running HMCTS cost £1 billion more a year than it received in income (there are differing reports online about this; the justice minister may have been using the old-fashioned British definition of a billion; i.e. £100 million. It’s an awful lot however you measure it. A billion here, a billion there, soon you’re talking real money…)
Ever now and again, someone will argue that court users should pay a court fee that accurately reflects the actual cost to HMCTS of running the Family Court and delivering justice to litigants. The probate service (which is part of HMCTS) recently very nearly introduced fees designed to more accurately reflect the actual size of the deceased person’s estate. These changes would have increased probate fees from £155 to a maximum of £6,000, depending on the size of the estate. Thankfully, the government had second thoughts.
People who suggest that the Family Court should charge higher fees point out that multi-billionaires pay the same tiny court fee as someone on a low income (although it is worth noting that people on very low incomes can qualify for a fee exemption or remission).
Not surprisingly, people facing court proceedings (and their lawyers) don’t like that idea. Litigation is already very expensive. I advise many clients who are facing an application to the court for a financial order that my fees are likely to be between £5,000 and £20,000 plus VAT, possibly more. The last thing that those clients want is to also pay a court fee of thousands of pounds, rather than one for £255.
Such a significant increase in court fees would be a disaster. People who need to go to court already face incurring enormous expense in legal fees paid to their lawyers. Those lawyers all work for private businesses; if they don’t charge a realistic fee for their services, they will go bust. Some people, of a left-wing persuasion, may find the idea of making a profit in these circumstances unpalatable, but there are a very many firms of solicitors and fierce competition among them ensures that solicitors’ charging rates are competitive, and also realistic.
A rise in court fees would prevent some people from obtaining justice. It would deter many of them from seeking justice in the first place. It would encourage even more people to represent themselves at court, which just serves to make the delivery of justice even slower and more difficult for the court to provide. Spouses would struggle to seek a fair share of the assets and maintenance in the event of a divorce. Parents would be unable to obtain orders allowing them to see their children or deciding where their children shall live. None of that would be good for society as a whole.
Of course, a rise in court fees might encourage people to avoid using the court other than for the most difficult of cases. Regrettably there are probably a large number of cases in court which could be resolved in a better and more constructive manner. Negotiation, collaborative law, mediation and arbitration are frequently much better and cheaper ways to resolve a family dispute. However, there will always be some people who need a judge to decide matters for them. My view is that it is better to attract clients to these areas by emphasising their advantages, rather than driving them away from court by imposing swingeing fee increases. Unwilling participation in alternatives to court does not help couples reach agreement.
26 January 2020
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