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R (Burrows) v Lord Chancellor [2006] EWHC 251 (Admin)

Permission to apply for judicial review of fees order refused.

R (Burrows) v Lord Chancellor [2006] EWHC 251 (Admin)

Queen's Bench Division: Cox J (10 January 2006)

Summary
Permission to apply for judicial review of fees order refused.

Background
The claimant, a practising solicitor advocate and specialist in family and child law, sought permission to apply for judicial review of the Family Proceedings Fees (Amendment) Order 2005. In September 2005, the Department for Constitutional Affairs (DCA) issued a consultation paper – by sending it to approximately 200 consultees and placing it on the DCA website – 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'. The consultation period ended on 18 November 2005, and the claimant became aware of the paper towards the end of November.

Taking the responses to the consultation 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 was to be increased from £210 to £300. The two exceptions were, first, 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; and, secondly, he decided not to pursue the proposed increase in fees for issuing lower-value monetary claims.

The claimant contended that the Lord Chancellor had acted unreasonably and without regard to the duty of fairness in four separate respects, two of which raised procedural issues and the other two raising substantive criticisms of the Order: as to the procedural matters, the claimant complained that the Lord Chancellor had 'ignored the response to the consultation process prepared by the Law Society'; and, further, that he had introduced the new fees shortly before Christmas, when 'adjustment to his new scheme and time for response to it is minimal'. As to the substantive criticisms, the claimant submitted that the Lord Chancellor had introduced or perpetuated a scheme of fees for family proceedings which was regressive, and the increases to be brought into effect in the Order did not reflect, as in civil proceedings, the amount of the claim and the cost to the taxpayer of claims proceeding to each stage.

Judgment
Held, refusing permission to apply on all counts, that there was no basis for the claimant's procedural challenges to the 2005 Order; and the substantive grounds of challenge were also unarguable.

The claimant's comparison with similar civil proceedings fees was held to be inappropriate; 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 the complainant's 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.

The judge also commented that the procedural issues raised by the claimant would be more appropriately dealt with as part of two major reviews to be undertaken during 2006 as part of the DCA's longer-term strategy for reforming the system of court fees.

Read the full text of the judgment here