LONDON SOLICITORS LITIGATION ASSOCIATION

Response to Consultation Paper CP(L) 24/05 on Civil and Family Court Fee Increases

INTRODUCTION

The London Solicitors Litigation Association (LSLA) is over 50 years old and represents the interests of a wide range of litigators in London handling a broad range of civil and commercial litigation. Through its 950 solicitor members and strong links with a wide number of professional bodies, it represents nearly all civil litigation practices in London. The LSLA operates through a Committee of some 15 members, which includes members of the Civil Justice Council, Civil Procedure Rules Committee, Law Society Civil Litigation Committee and local Law Societies. The Association has a long track record of responding to consultation papers, and has drawn on a wide range of views in responding to the current consultation paper.

Given our membership base, our interest in the consultation paper is inevitably directed primarily to the section on civil proceedings. We therefore leave it to others better qualified than ourselves to comment on what are on their face a number of extremely high increases in some fees applicable in magistrates' courts and family proceedings.

1. The target of HMCS continues to be to recover 100% of the total cost of civil proceedings. We have pointed out previously that the function of the courts is to regulate the conduct of society as a whole and it therefore seems inappropriate for the entire cost to be borne by those who may, willingly or otherwise, become litigants.

2. This is of particular significance at a time when the volume of cases in the civil courts continues to decline, and the DCA has explicitly stated a policy of seeking to reduce the number of cases. We fear that the principle of providing access to justice has already been given a lower priority, and the insistence on 100% cost recovery in all circumstances can only accelerate that process.

3. The availability of arbitration as a dispute resolution mechanism, and the concerted efforts of other jurisdictions to provide alternative fora for the handling of commercial disputes, mean that the courts themselves are operating in a competitive environment. The legal services sector is a significant invisible export earner, but we have seen no evidence that the potential losses to the economy from pricing ourselves out of the market are taken into account when considering the levels of fee increases.

4. We have pointed out last year in our response to the Civil Court Fees Consultation Paper CP10/04 that the concept of "full cost recovery" is an artificial one, where items such as notional interest on the value of assets utilised by HMCS are taken into account in the computation of "costs". It may well be that on a proper analysis of full cost recovery, it has already been achieved without the necessity for any further increases.

5. Most of all, we are concerned that the increases currently proposed cannot be viewed in isolation, but are a further step down a slippery slope towards making court users bear increasingly burdensome court fees. In principle, if the present proposals achieve 100% cost recovery, no more than inflationary increases will be required in the future. Yet we note the reference in the consultation paper to the possible "introduction of trial fees in larger civil cases". We understand that a further consultation paper on this subject may be issued next year, to which we will respond in more detail, and we trust that any such consultation process will be fully transparent and pay proper regard to the responses received. We cannot over‑emphasise the deleterious effect which any such proposal for trial fees will have on the attractiveness of the Supreme Court as a forum for litigating major disputes. One of the few positive benefits that we could see in the present proposals would be if they served to put an end once and for all to the concept of introducing trial fees, but we fear this is not the intention.

FK SJ Article

NLJ Article

Private actions in competition law July 2012