Courts: Resourcing and Staffing

Lord Trevethin and Oaksey Excerpts

Thursday 14th July 2016 Lords Chamber

[Lord Trevethin and Oaksey (CB)]

I respectfully congratulate the noble Baroness on her exceptionally powerful and informative speech on a problem which, when it arises in the course of the trial process, is capable of completely derailing things. I declare an interest as a practising barrister. I, too, rise with some trepidation in following a string of noble and learned Lords, some of whom I have harassed from the Bar.

One aspect of The Rule of Law identified by the late Lord Bingham in his amazing book of that name is:

“Means must be provided for resolving, without prohibitive cost or inordinate delay, bone fide civil disputes which the parties themselves are unable to resolve”.

In the context of a discussion of the Legal Aid and Advice Act 1949, Lord Bingham cited this passage in support of the general proposition that the state should ensure access to justice:

“Just as the modern State tries to protect the poorer classes against the common dangers of life, such as unemployment, disease, old age, social oppression, etc., so it should protect them when legal difficulties arise. Indeed, the case for such protection is stronger than the case for any other form of protection. The State is not responsible for the outbreak of epidemics”—

and so on—

“But the State is responsible for the law. ... It is therefore the duty of the State to make its machinery work”.

Writing in 2010, Lord Bingham expressed concern about the changes in the late 1990s that, in substance, replaced legal aid with a structure that permitted conditional fee agreements and “after the event” insurance in respect of costs liabilities, which allowed successful claimants to recover the retrospective uplifts and premiums from the unsuccessful party.

Since then, as all the lawyers in the House will know, things have changed radically. In 2013, the structure that permitted the recovery of uplifts and premiums was swept away in accordance with the recommendations in the report of Lord Justice Jackson. Over the course of the 2010 to 2015 Parliament, the Government pursued a policy aimed at decreasing the net cost of the Courts and Tribunals Service through the introduction of, and increases in, various fees and charges. In its December 2013 consultation paper, the Ministry of Justice stated:

“Providing access to justice remains the critical objective”.

However, it also stated that those using the court system would be,

“expected to meet the cost of the service where they can afford to do so, and for certain types of proceeding would be expected to contribute more than the cost”.

The last phrase is rather remarkable, because it appears to amount to a concession that, in certain circumstances, litigants would be overcharged for what the state appears to regard as a sort of commercial service.

There is an obvious tension between access to justice and the imposition of a liability to pay substantial fees on the users of courts and tribunals. The new charging regime should itself be considered in the context of the major changes to funding arrangements, which are themselves very widely regarded as impairing access to justice. How do things presently stand? May I, in the time I have left, make one or two specific points that occurred to me as I read some of the available material?

The most contentious part of the new charging regime concerns fees for applications to employment tribunals. This subject will be debated in more detail in your Lordships’ House in a few days’ time. I want to make a few observations about it now, in the belief that certain issues that arise may be illustrative—I hope they are not—of a more fundamental problem. The fee structure introduced in 2013 in relation to employment tribunals differentiates between type A and type B claims, the latter being more complex than the former. In broad terms, it costs £400 to take a type A claim to a hearing before the tribunal and £1,200 to take a type B claim there. I have not been able to find anything emanating from the ministry—I may have missed it—to tell one how these figures were arrived at or to dispel the suspicion that they may have been plucked out of the air.

Access to justice is supposedly protected by a fee remission scheme. The applicant must first complete a not entirely straightforward form and there is a two-stage test. Disposable capital of £3,000 operates as an immediate disqualification. The point has been made to the Commons Justice Committee, which reported on court and tribunal fees about a month ago, that a significant number of applicants will have been made redundant or dismissed shortly before the making of the application, and may well have received a payment which would cause them to fail the disposable capital test. A single person who is not disqualified by that test must have a gross monthly income of no more than £1,085 to obtain full remission.

What may have been the consequence of introducing this charging regime? It is clearly established, in cases where the problem is considered and elsewhere, that there has been in broad terms a 70% reduction in applications to the tribunal since the introduction of these charges. The lawfulness of the charges has been challenged in judicial review proceedings. I will say nothing more about that, because it is travelling to the Supreme Court later this year, save to note that the main reason for the dismissal of the case in the Court of Appeal was the absence of clear evidence that individual potential applicants had been unable to afford the charges. The court described the overall picture of a large reduction in the number of claims as troubling. There is a certain irony in the fact that the ministry prevailed in that litigation because of a shortage of hard evidence, in that it began a review into the introduction of charges in this field in the summer of 2015. The ministry said that the review would be completed at the end of 2015 but it has not yet published the review, so far as I know.

The Justice Committee’s report makes moderately alarming reading. It recommends a substantial reduction in the fees, among other things. In the time available, I will pick out one point which particularly struck me. The Council of Employment Judges reported that many judges now hear no money claims at all. In this context money claims are typically claims for unpaid wages, notice pay, holiday pay and so on. The sums at stake tend to be relatively small, on one view—a few hundred pounds or so—but very significant to the individual concerned who may, to borrow a phrase, be just managing and whose life may be a struggle.

Let me try to move away from the dry stuff in the MoJ paperwork about meeting the costs of the service and imagine how things might look to someone who thinks that he or she is owed a few hundred pounds by their employer. There will be no access to legal advice. Obtaining fee remission is far from straightforward, if possible at all. Filling in the form in itself will deter quite a few. In many cases, remission is not available. The claimant then faces the prospect of paying about £400 to make good a claim which might be for the same sort of sum. This is a bet at even money, so to speak. However, 40% or thereabouts of employment tribunal awards are not fully enforceable so it is a bet at even money in circumstances in which the counterparty may not pay out at all.

Then, there is the daunting prospect of appearing unrepresented before a tribunal. In these circumstances, it is entirely unsurprising that the introduction of charges is deterring potential applicants. It may in theory be the case that the applicant could afford, just, to pay the charge but in the real world the claim will not be brought. This, your Lordships may think, is not acceptable. If the Government sought to legislate to remove the right of employees to bring small money claims of this nature, there would be outrage, but these charges may be regarded as substantially impairing and in many cases effectively removing that right, through the side or back door.

I have a number of other points with which I want to vex and harass the Minister. However, I am keeping an eye on the clock and am worried about strictures from that part of the House, so I shall have to attempt that exercise outside the Chamber.

Before I sit down, I respectfully echo, from the unlearned Bar, as it were, the many tributes which have been paid to the Minister by noble and learned Lords. I am very sorry to have detected, I think, that the noble Lord may be moving on. This House will be very much the poorer; he will be the richer.