On 9^th March 2015, the Civil Proceedings and Family Proceedings Fees (Amendment) Order 2015 came into force in England and Wales and introduced ‘enhanced’ court fees – enhanced in the quantitative but not the qualitative sense. The Lord Chancellor, Chris Grayling, has added yet another crowning jewel to his arsenal of justice-axing statutory instruments. 

Mr Grayling’s power to prescribe fees above the cost of providing the court services was provided by the deceptively innocuous section 180(1) of the Anti-social Behaviour, Crime and Policing Act 2014. In the House of Lords debate, former Justice of the Supreme Court Lord Brown rightly lamented that “one problem with a Bill that stretches to 186 clauses and 11 schedules and occupies 232 pages of the Queen’s printer’s copy is that, at least by the time that Clause 180 is reached, this House’s scrutiny powers begin to wane”.

A civil claim with a value of between £10,000 and £200,000 would be 5% of the value of the claim. Claims of £200,000 or above would attract an upfront court fee of £10,000, as would claims without a specified value (e.g. claims for PSLA damages or injunctions). This is a staggering 576% increase. Such fees will, in Lord Pannick QC’s words, “inevitably, in practice, deny access to the court for many traders, small businesses and people suing for personal injuries”.

Ironically, Mr Grayling remarked at the Global Law Summit that the best way for this country to stay as a “centre of legal excellence” is by “remaining firmly rooted in the principles of Magna Carta that have served us so well to date”. Given that clause 40 of Magna Carta states that “to no one will we sell, to no one will we deny right or justice”, Mr Grayling has demonstrated how to pay no more than lip-service to the “core principles agreed 800 years ago [which] are still the heart of the legal values and traditions of this country” – Humpty Dumpty words.

It is disconcerting that the reform went ahead despite the “deep concerns” raised by the Lord Chief Justice and other members of the judiciary. The Civil Justice Council similarly pointed out that the sweeping reform has proceeded on a “poor evidence-base” without proper consultation or impact assessment. Mr Grayling has clearly not learned his lesson since the court last year found his consultation exercise on criminal legal aid arrangements to be “so unfair as to result in illegality”.

The Law Society has already issued a pre-action protocol letter for judicial review. The enhanced fees would not stand up to scrutiny. It is a blatant violation of Article 6 of the ECHR (right to fair trial) – Strasbourg has held in Kreuz v Poland (2001) that a court fee of 6-7% of the value of the claim was disproportionate.

Withdrawing from the ECHR is no answer at all. Steyn LJ observed in Ex parte Leech [1994] QB 198 that access to courts is so important that “even in our unwritten constitution it must rank as a constitutional right”. Indeed, this is not the first time a Lord Chancellor’s imprudent fees have been challenged in court.

In R v Lord Chancellor, Ex parte Witham [1998] QB 575, the court declared a similar Order increasing court fees ultra vires, stressing that “the common law provides no lesser protection of the right of access to the Queen’s courts than might be vindicated in Strasbourg”. Laws J held at [24] that “the executive cannot in law abrogate the right of access to justice, unless it is specifically so permitted by Parliament… The class of cases where it could be done by necessary implication is, I venture to think, a class with no members”.

Rose LJ similarly concluded at [31] that “there is nothing in the section or elsewhere to suggest that Parliament contemplated, still less conferred, a power for the Lord Chancellor to prescribe fees so as totally to preclude the poor from access to the courts. Clear legislation would in my view be necessary to confer such a power and there is none.”

Fortunately, there is no such express wording in section 180(1). Thus, Mr Grayling has two alternatives – return to a genuine respect for Magna Carta, or prepare for imminent defeat in court.