Acting to stop harm: the FCA and Appointed Representatives
The 21st March 2016 saw the latest annual increase in Court fees. Last year, on 9th March 2015 court users were subjected to significant increases in issue fees (the fee payable at the point of issuing a Claim Form at Court and starting the litigation process). The fee for a claim estimated to be valued at more than £200,000 increased from £1,515 to £10,000. Despite objections raised at the time the Ministry of Justice proceeded with the increases leaving claimants, and their lawyers, to fund extortionate fees but receiving no greater access to, or service from, the court system in return.
Thankfully, this year the issue fees have not been increased further for claims for damages commenced at the Queen’s Bench Division. This time, however, general application fees have been the subject of substantial increases. An ‘on notice’ application will now attract a fee of £255, an increase from £155. The fee for an application dealt with ‘by consent’ has also increased from £50 to £100. These increases are significantly more than just an increase in line with inflation; they are an attack on Court users and in the context of clinical negligence claimants, an attack on vulnerable individuals of society who has sustained an injury through no fault of their own.
The Ministry of Justice (MoJ), the government department responsible for the Court system, has justified the latest annual increase in Court fees on the basis that as a government department the MoJ is required to share its burden of cost savings in the current austerity measures. They also claim that it is only fair, and just, for Court users to contribute to the running of the Civil Justice System. These comments are not only an attack to access to justice but also short sighted.
At the same time as increasing Court fees, the number of court staff at the Royal Courts of Justice has reduced. It is now a common feature within the corridors housing the Queen’s Bench Masters that Court bundles left by legal representatives with the Masters Support Unit are not delivered on time, or at all! The Masters now ask that bundles for hearings are either delivered in person or submitted by email. Reduction in staff numbers means that there is not sufficient administrative staff to ensure bundles for hearings are placed before the assigned Master in advance of listed hearings. Upon witnessing such maladministration claimants would be forgiven for questioning the level of service they receive for their £10,000 court fee.
The continuous attack on Court fees is misguided, especially in clinical negligence claims, because it is the taxpayer who ultimately pays. If a claim is successful against an NHS Trust it is the NHS Litigation Authority who will pay the Claimant's costs. Essentially, a claimant will incur Court fees throughout the life of the claim and seek reimbursement from the NHS Litigation Authority: a public body funded by taxpayers money. If a publicly funded clinical negligence claim is unsuccessful then the Legal Aid Agency will foot the bill. Viewed in this way, the increases in Court fees are little more than an indirect tax to access the litigation process and a money making exercise for central government.
So what can be done to save expenditure within the court system and encourage greater efficiencies?
A far better approach would be to tackle the delays and inefficiencies inherent within the Civil Justice System rather than simply apply an indirect tax on justice. A pre-action protocol that has teeth to punish non-compliance is essential. Only too often in clinical negligence claims a claimant encounters continued delays on the part of the defendant. A defendant has 4 months within which to investigate a claim and serve a Letter of Response in reply to the claimant’s Letter of Claim. Receiving a Letter of Response within the 4 months is so rare it is almost unheard of. Claimants can be waiting for anything up to 12 to 18 months for a Letter of Response. In these circumstances the pre-action protocol has no teeth. There is no sanction or mechanism in which a claimant can compel a defendant to serve a Letter of Response. Instead, the only option available is to proceed to issue and serve proceedings. Therein lies the problem, if the claimant seeks to embark upon this course of action then a substantial Court fee will be incurred. This forces the parties down a litigious route increasing both costs and the time it will take to resolve the dispute. The opportunity to consider and embark upon alternative dispute resolution is lost.
Early mediation within the clinical negligence field is still frowned upon in some quarters. In a complex clinical negligence case where both parties are investigating early on in proceedings there should be a system that is more collaborative. If issues can be resolved, or at the very least narrowed, before entering the Court system this will no doubt reduce the pressures placed on an already burdened system. Focused or narrowed areas of dispute would lead to less court management of a claim thereby taking up less Court resources. This in turn will free up the Court system to deal with those cases that are truly litigious and cannot be resolved by mediation or another form of alternative dispute resolution.
So the message to the Ministry of Justice: think of creative solutions rather than attacking Court users annually who, if they had any choice, would not be embarking upon the litigation process.
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