Legal Village

Civil court funding: pay as you go?

Posted 12/03/2007 by Ted Greeno

The Government has been contemplating for some time the introduction of hourly trial fees as part of its broader aim to make the civil court system self-funding.

Despite the idea having been hugely unpopular when last raised in a public consultation less than three years ago, the Department for Constitutional Affairs is planning a further consultation on the issue. This is expected imminently.

The message that rings out loud and clear is that the Government is determined to bring in these fees, which some have described as another "stealth tax" – and who is to say that is wrong?

Many feel, not unreasonably, that it is the role of government to provide a civil justice system. The cost of litigation has already increased in recent years following the introduction of the Civil Procedure Rules in 1999 and their front-loaded approach to case preparation. These cost increases threaten to restrict access to justice even further, to the very few who can afford it.

I am not aware of any other country which expects its civil justice system to be funded entirely by those who are obliged to use its courts. To require the civil courts to be self-funding is to forget that the system benefits all in society, not only those who actually have to litigate.

In a legal system that depends on judicial precedent, court cases are the oxygen needed to develop and clarify the law for the public benefit. The development of our commercial and business laws is also crucial to the economy. The success of the City in particular owes much to the stable and predictable legal environment which English law provides and English law itself is often the law of choice for transactions all over the world.

With the costs of litigation rising, arbitration is already on the increase and there is mounting concern in some sectors of the City that the courts are not getting the opportunity to hear cases and make law. The introduction of hourly trial fees is likely further to drive business away and the relatively small revenues raised will be far outweighed by the cost to the country and the economy of stifling the development of the common law.