What price justice? Proposals for paying Judges by the hour

On 10 January 2006 the Department for Constitutional Affairs (DCA) issued a statement in respect of its plans for increasing court fees. Its plans resurrect the proposal for Hourly Trial Fees.

Government policy is that fees should normally be set to recover the full cost of a service although there are cases where a service recovers less than full cost. Some court users are exempt from paying court fees (generally those on means tested benefits) or court fees are remitted in cases of hardship. Other services (family proceedings) are subject to subsidy. However the latest proposals from the DCA indicate that the government is determined to recover more of the costs of running the court service from those who are using the courts for commercial business, rather than from the taxpayer.

The government’s determination to increase revenues from court fees appears unassailable. The question (which was the subject of a consultation paper in May 2004) is how the increases should be applied. In addition to general increases in fees for issuing claims in the High Court, the 2004 consultation paper also proposed a new Hourly Trial Fee for trials in the High Court and Appeal Court.

Hourly Trial Fees became one of the most controversial proposals to come out of the 2004 consultation. Significant numbers of respondents to the consultation were strongly opposed to the idea. As a result the introduction of these fees was deferred to allow time to agree best practice and procedure.

The 10 January 2006 statement indicates that Hourly Trial Fees will be introduced in order to “achieve a closer match of income and cost drivers, in particular through the introduction of trial fees”.

The 2004 consultation document set out its proposals for Hourly Trial Fees and indicated that each hour or part hour of the trial or appeal would be charged at £200. It then provided a series of options as follows:

• Option A which sets a limit of £2000 on fees charged for all claims. If the trial requires less than 10 hours of court time the unused balance of the £2000 is returnable.
• Option B which sets a lower limit of £1000 for personal injury claims and a higher limit of £3000 for other claims. Again, unused balances are returnable.
• Option C which in effect would charge by reference to the actual number of hours required, by way of a deposit payable up front (calculated by reference to the estimated length of trial) followed as necessary by a top up fee if the case overruns.
• Option D which abandoned the idea of an hourly rate but added £100 to the cost of issuing all claims above £15,000 in value.
• Option D was the preferred option of respondents to the consultation. It appears that their views have not been accepted by the DCA.

Hourly Trial Fees are controversial because the length of the trial (and therefore its cost) is not within the control of the litigants. The time taken (as reported in the Response to Consultation document) is affected by the speed of the judge, whether the judge has had time to read into the case before trial, the experience and expertise of the judge, the speed of the advocates, the “gamesmanship” of the advocates, the vagaries of witnesses, the efficiencies or otherwise of the court service and litigants in person. It is also thought that Hourly Trial Fees may well act as a deterrent to the use of the court system, to the detriment of the community. In addition, such fees would be relatively ineffectual at raising revenue because so many claims settle before trial.

Nevertheless if the DCA statement bears fruit, Hourly Trial Fees will be introduced.
A further consultation is promised for later on this year with proposals being brought into force not before April 2007.

This article first appeared in our Construction and development legal update Spring 2006. To view this publication, please click here to open it as a pdf in a new window