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Senior Judiciary questions subsidy of family courts by civil court users

Justice system should not need to be self-financing, say senior judges in court fees response

The Senior Judiciary has published its response to the Ministry of Justice's consultation paper 'Court Fees: Proposals for Reform'.

Within their response, the senior judges note that the civil courts are fully self-financing, while the family courts run at a very substantial deficit. The judges say that there is no good reason for treating the civil and family courts as a single system because their functions are quite separate.

The judges say:

"The issue that must be faced and debated, although not raised explicitly in the Consultation Paper, is whether it is right that parties in civil proceedings should pay more than the costs of the civil courts in order to fund the deficit in the family court system.
If, as all agree, it is essential in the public interest to provide a family justice system, and it cannot be fully self-financing, should the cost be found from society at large or from a charge, essentially by way of taxation, on those who need to bring claims in the civil courts?"

In respect of the subsidy of family courts, the response concludes:

"In summary, the proposals, particularly the novel concept of enhanced fees, give rise to major issues of policy which require public debate:

(i) How is the position of the courts in providing access to justice for all and maintaining the rule of law for the benefit of all to be reconciled with the proposition that they should be financed only by those who actually use them?

(ii) Should those who use the civil (non-family) courts subsidise those who use the family courts?

(iii) Should fee remissions for those who cannot afford to pay fees be financed by other users of the courts?

These are issues of policy which it will be for Parliament to decide, but we are concerned that they should be openly acknowledged and explained so that there can be a fully informed debate about them."

The judges also criticise the research on which the proposals are based:

"The research so far undertaken by the MoJ is clearly inadequate to assess the probable consequences of both the Costs Recovery and Enhanced Fees proposals on the ability of parties to afford access to the courts and on their willingness to do so.
The MoJ admits as much in the Consultation Paper and Impact Assessments."

The Senior Judiciary recalls that it has for many years consistently made clear that it does not support the policy of successive Governments that the justice system should be self-financing. It notes that  Sir Richard Scott VC said, this "profoundly and dangerously mistakes the nature of the system and its constitutional function."

The response is here.