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The Queen on the application of David Burrows v Lord Chancellor [2006] EWHC 251 (Admin)

This was an application to apply for a judicial review of the recent increases in court fees as introduced by the Family Proceedings Fees (Amendment) Order 2005. The claim was brought by David Burrows, a specialist family lawyer from Bristol. Permission was refused.

CO/32/2006

Neutral Citation Number: [2006] EWHC 251 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2

Tuesday, 10th January 2006

B E F O R E:

MRS JUSTICE COX

THE QUEEN ON THE APPLICATION OF DAVID BURROWS (CLAIMANT)

v

LORD CHANCELLOR (DEFENDANT)

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THE CLAIMANT APPEARED IN PERSON

MR S KOVATS (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT

J U D G M E N T

(As Approved by the Court)

Crown copyright©

1. MRS JUSTICE COX: In his claim form, issued against the Lord Chancellor on 4th January 2006, the claimant, David Burrows, a practising solicitor advocate and specialist in family and child law, seeks permission to apply for Judicial Review of the Family Proceedings Fees (Amendment) Order 2005, made and laid before Parliament on 20th December 2005 and due to come into force on 10th January 2006. He seeks, in addition, interim relief in the form of a stay of the Order pending the court's decision on the application for permission.

2. After considering the papers and the issues raised on 4th January, and given the urgency of the matter, I directed an oral hearing on notice to the defendant after the claimant had lodged the material he sought to rely upon, most of which was not included in the papers which were then before me. That oral hearing took place yesterday, 9th January, in Court 37. Having considered the claimant's bundle of documents and having heard submissions from Mr Burrows, appearing in person, and from Mr Kovats, on behalf of the Lord Chancellor, I refused permission to apply. Timing constraints, given the length of the oral hearing and the requirements of Court 37, led me to give judgment, giving full reasons for the decision, at 10am today as follows.

3. Mr Burrows, who practises in Bristol, has specialised in family and child law for most of his practising career and more recently he has specialised particularly in ancillary relief and child support law. He is a member of the Law Society's Children Panel and a member of Resolution, formally the SFLA.

4. It is not in dispute that, on 23rd September 2005, the Department of Constitutional Affairs (DCA) issued a consultation paper entitled "Civil and Family Court Fee Increases", setting out proposals to increase court fees in order for Her Majesty's Court Service (HMCS) to meet its cost recovery targets for the current financial year and beyond. It was expressly stated in the introduction to that paper that the underlying fee policy and the principle of the need to recover costs were not in issue. Rather, the scope of the consultation was limited to whether the particular fee increases proposed were "most apt to meet the need to cover more of our costs". In these circumstances the consultation was "not intended as a full public consultation but is limited to statutory consultees and other key stakeholders". The statutory consultees are those listed in Section 92(5) and (6) of the Courts Act 2003, namely the Lord Chief Justice, the Master of the Rolls, the President of the Family Division, the Vice Chancellor, the Head and Deputy Head of Civil Justice and, in relation to civil proceedings, the Civil Justice Council. Mr Burrows accepts that, during the consultation period, which closed on 18th November 2005, some two hundred consultees were sent a copy of the paper, which was in addition placed on the DCA website. The claimant himself became aware of the paper towards the end of November 2005. It was made clear in the introduction that the duration of the consultation period was eight weeks "because one of our objectives is to increase fee income to cover costs in the current financial year".

5. In his response of 5th January to the claimant's pre action protocol letter of 23rd December 2005, the Lord Chancellor, through the Treasury Solicitors, stated that there were in fact some 50 responses to the consultation, including a response from the statutory consultees. All of these responses have since been shown to the claimant. After taking these responses into account, the Lord Chancellor decided, subject to two exceptions, to proceed with the fee increases proposed, one such increase being on presentation of a divorce petition, where the fee is to be increased from £210 to £300. The two exceptions were these: firstly, the Lord Chancellor decided not to introduce at this stage a proposed increase from £210 to £380 in the fee for an application for ancillary relief, having regard to the concerns expressed by the consultees about the size and timing of the proposed increase. Secondly, he decided not to pursue the proposed increases in the fees for issuing lower value monetary claims. The letter of 5th January from the Treasury Solicitors also referred to two major reviews which are to be undertaken during 2006 as part of the DCA longer term strategy for reforming the system of court fees. There will be what is described as "a fundamental review of the system of exemptions and remissions to ensure that it adequately protects access to justice and is operated consistently". In addition there is to be a review of the structure of the fee system: that is the point at which the fees are charged, the key objective being said to be "to achieve a closer match of income and cost drivers, in particular through the introduction of trial fees in larger civil cases", and it is intended "both to make the system fairer as between different types of litigant, and make it easier to ensure that costs and funding remain in balance as workload changes". The Lord Chancellor decided to proceed with the proposed increases, subject to the two exceptions referred to, and the Order sought to be reviewed in this claim was, as I have said, made and laid before Parliament on 20th December 2005, due to come into force on 10th January 2006.

6. The claimant stresses that he accepts, for the purposes of his application, and despite his personal opposition to the principle, that the Lord Chancellor is entitled to adopt the position that justice should be paid for entirely by those who seek it. In his written grounds the claimant contends, however, that the Lord Chancellor has acted unreasonably and without regard to the duty of fairness in four separate respects, two of which raise procedural issues and the other two raising substantive criticisms of the Order. Dealing first with the procedural matters, the claimant initially complained, in ground 2, only that the Lord Chancellor had "ignored the response to the consultation process prepared by the Law Society" and further, at ground 4, that he had introduced the new fees shortly before Christmas, when "adjustment to his new scheme and time for response to it is minimal".

7. In his written comments and skeleton argument, however, and in his oral submissions before me, the claimant sought to broaden his attack under this heading, following his consideration of the 50 responses. He submitted that there was no evidence that the Lord Chancellor had in fact consulted the Master of the Rolls, the President of the Family Division or Vice Chancellor and further that there was no evidence of the thought processes undertaken by the Lord Chancellor, following consultation and no explanation as to why he appears to have taken so little account of the responses of his consultees, including some trenchant comments as to the proposed increases by two senior circuit judges.

8. Notwithstanding the claimant's scepticism as to the timetable for the introduction of the increased fees, the available evidence showed that this consultation paper was put out in September 2005, with copies being sent to all the statutory consultees as listed in Section 92, and to 12 other stakeholder bodies and to the consultees who had responded to the 2004 fees consultation; see page 5 of the paper at page 41 of the bundle.

9. In addition, in argument Mr Kovats drew my attention to the written response received from the Lord Chief Justice dated 23rd November 2005, which was clearly a response submitted by him expressly on behalf of all the senior judicial members of the Judicial Executive Board, whose members, of course, include the Master of the Rolls, the President of the Family Division and the Vice Chancellor. I have already referred to the limited scope of his consultation, which sought views only on the extent to which the particular increases proposed were most apt to enable HMCS to reach its cost recovery targets and not in relation to the underlying fee policy and the principle of the need to cover costs. In relation to that aspect, I should note the statement on page 3 of the paper, at page 39 of the bundle, that the proposed package would increase fee income by about £50 million in a full year and that, in the higher courts, it would enable the HMCS to achieve the target of 100 per cent cost recovery for civil proceedings and to move "towards our target for family proceedings of 66% recovery (discounting exemptions and remissions) by 2007 08."

10. Given the limited scope of the consultation and the indication of two major reviews forthcoming during 2006, it is in my judgment unarguable that this was not a proper consultation exercise; or that the appropriate bodies were not consulted; or that the consultation proceeded upon an unreasonable or irrational basis, either in substance or in relation to the timetable required; or that the Lord Chancellor failed to have regard to the responses received. It seems to me that a number of the points sought to be raised by the claimant in connection both with the procedural and substantive challenges will be more appropriately raised in the course of the forthcoming reviews, during which the Lord Chancellor has indicated that there will be consultation. There is, in my view, no basis for the claimant's procedural challenges to the 2005 Order.

11. I turn therefore to the substantive criticisms. Initially, in his written grounds, the claimant contended that the Lord Chancellor had introduced or perpetuated a scheme of fees for family proceedings which is regressive, which is out of line with similar civil proceedings fees and which is unfair to petitioners and other applicants. The main thrust of his written complaint is that the increases to be brought into effect in the Order do not reflect, as in civil proceedings, the amount of the claim and the cost to the taxpayer of claims proceeding to each stage. The majority of the costs of the proceedings are to be raised on a divorce petition, the fee for which is to be increased from £200 to £300, although in administrative terms the cost of issuing a divorce petition is relatively minimal. The main costs always arise in later ancillary relief proceedings. There is then, he says, no attempt to gear the cost of the proceedings to the resources of the individual petitioner or applicant or to the amount of time spent by the court in dealing with it. Thus the claimant gives an example of a couple whose incomes are minimal, though above the fee exemption level, and who may occupy only half a day before a district judge, who will pay exactly the same ancillary relief fee as a couple whose assets are substantial and whose ancillary relief claim might occupy five or six days before the High Court.

12. In his oral submissions, the claimant sought first to concentrate on what he describes as a substantial increase in the petition fee itself, of which he is particularly critical but which has not been expressed as a ground of challenge in his claim. During oral argument, he summarised that his complaint was based essentially upon what he submitted was an unreasonable and unfair imbalance between the petition fee, in respect of which the administration was relatively straightforward and undemanding on resources, and the ancillary relief fee, which will always involve more by way of administration and court time, and yet which has not been increased.

13. The correct position is, however, that the proposed Order makes no change to the existing fee for ancillary relief applications, apparently as a result of the responses received on consultation and concerns expressed, to which I have already referred. The imbalance of which the claimant complains, whilst it may be more marked under the new Order, therefore exists under the present regime, where the fees are the same for both petition and ancillary relief applications, despite the claimant's contention that the ancillary relief application involves far greater administration time and cost. Further, the inequality of treatment as between those couples with few and those with substantial assets, of which this claimant complains, exists currently yet no challenge has been brought to the current fee structure. In any event, the structure of the current fee arrangements was not the subject of the present consultation but will form part of the defendant's review, due to take place during 2006.

14. Finally, the claimant's comparison with similar civil proceedings fees seems to me to be inappropriate. Claim forms in civil monetary claims have to identify the amount in issue between the parties within the specified limits, whereas the amount at issue in claims for ancillary relief in family proceedings will frequently be unclear or even unascertainable on the issue of the relevant application. Whilst the genuineness of this claimant's concerns as a solicitor practising in family law is not doubted, his concerns centred essentially on what he expressed as the unfair hike in petition fees, which he accepted in argument could not itself be the subject of challenge, and the structure of the present fees regime, which was not in any event the subject of the consultation sought to be impugned. A number of Mr Burrows' submissions addressed what, in his own personal opinion, was an alternative and a better way of avoiding unfairness in the fee system, which he was constrained to accept in argument was not of relevance to this application. For these reasons, the substantive grounds of challenge are also, in my judgment, unarguable.

15. The claimant's fourth and final ground of challenge related to legal aid. He contends that, under the new Order, an increased fee is to be charged for a detailed assessment of legal aid bills. This, he contends, is a direct charge on the defendant's legal aid fund which will have a direct consequence on the costs available for distribution to legal aid practising lawyers. As Mr Kovats pointed out, however, this fee is, like other court fees, a fee which is payable for a service being provided by HMCS and it is commonplace for other Government agencies to be required to pay the court fees for the services they receive. Furthermore, both the Community Legal Service fund, or the Legal Aid budget, and HMCS, are funded by the DCA. The department allocates a budget to the Legal Aid fund in the full knowledge that it is liable to pay court fees for HMCS services. The claimant's contention that this fee is unreasonable, so as to enable him to challenge it by way of Judicial Review, is also, in my view, unarguable and, for these reasons, the application for permission is refused.

16. There are two matters I will add for completeness in relation to this claim. Firstly, the defendant took no point in relation to the claimant's standing to bring this matter before the court, although observing, in my view correctly, that the claimant would have no standing to complain about any lack of or inadequacy of consultation concerning the proposed fees on behalf of any individual consultee. Secondly, Mr Kovats raised an issue of broader interest which is this: the challenge in this claim is to a draft statutory instrument prescribing court fees made pursuant to the provisions of Section 92 of the Courts Act. In accordance with Section 108 of that Act, and the negative resolution procedure which applies, Parliament has a period of 40 days after the Order has been laid before them in which to annul it. This raises the question whether an individual, such as the claimant in the present case, can seek to challenge by way of Judicial Review a draft instrument made pursuant to Section 92 before that period of Parliamentary process has come to an end. In the event, however, since I have concluded that the claimant's grounds of challenge are without foundation, it is unnecessary to consider and determine this issue in this claim. The application for permission to apply for Judicial Review therefore fails.

17. At the conclusion of the hearing, Mr Kovats applied for the defendant's costs and asked for a summary assessment in accordance with the statement served. The claimant, while not disputing the particular sums claimed, did contest the defendant's application for costs. Mr Kovats submitted that the claimant's pre action protocol letter is dated 23rd December and the defendant's letter in response was dated 5th January, in which he invited the claimant to consider withdrawing his claim. The letter in response was therefore sent within the time permitted by the rules. The claim form was issued on 4th January and the oral hearing took place on 9th January. Mr Kovats says that this was not a case therefore where the defendant could be said to have sat on his hands and deliberately not filed an acknowledgment of service. The claimant chose to issue the claim and the matter then had to be dealt with orally.

18. I was referred to the decision of the Court of Appeal in Mount Cook Land Limited v Westminster City Council [2004] 2 ECR 405, in which it was held that a defendant who has complied with a pre action protocol and who has filed an acknowledgment of service should generally be able to recover the costs of filing an acknowledgment of service in an unsuccessful claim where permission is refused. I accept in this case, however, the claimant's submission that the court should not order an unsuccessful claimant to pay the costs of the defendant attending an oral hearing and successfully resisting the application for permission, save in exceptional circumstances. Having considered all the factors referred to in the Mount Cook case, and having considered generally the urgency of this application, given the date when the order was to come into force and the intervening Christmas vacation and the time it took for the claimant to have access to the documentation relevant to the claim, in my view insufficiently exceptional circumstances were shown to merit the award of costs claimed by the defendant. In the exercise of my discretion, I therefore refuse the application for costs.

19. MR BURROWS: Thank you very much. Perhaps I should remind the court that I did formally apply for a stay which was refused and perhaps that should be included in the order.

20. MRS JUSTICE COX: Yes, it should be and will be.