The Scottish Government has issued an inquiry entitled Consultation on Scottish Court Fees. This document asks how court fees should be increased in order to achieve full cost recovery.
This is based on the belief that the costs of the civil court system should be borne by court users rather than taxpayers.
It is a sad day indeed that the Scottish taxpayer has become either unwilling or unable to finance a civil court system.
Civil court cases have promoted many learned judgments which have characterised centuries of Scottish legal tradition of which the taxpayer is no doubt as proud as anyone.
The occasions for judicial insight grow with the complexities of modern life – the contractual significance of electronic communication, defamation by anonymous social media, parental identity, rights and duties for children conceived by IVF, and so on. The taxpayer needs guidance in these and other complex issues and should be willing to pay for a system which offers that guidance.
It is also of interest to the taxpayer that the lieges should resolve their differences in the quiet reflection of the courtroom rather than by hostile confrontation in the streets. Surely the taxpayer would not wish to finance essential services on the back of the hardship and misery that brings individuals to the courts for the resolution of their issues.
It was queried also whether a state which provides hospitals free of charge should not also provide a court system subject, at most, to reasonable administrative charges. Again, if the court user is to be charged on a full cost basis who is to judge whether or not he is being overcharged? In other spheres, competition is the mandatory answer. Does this policy not therefore imply that alternative providers of civil court services should be allowed to make their bids for the work? Such providers might achieve greater cost efficiency by allowing occasional interruptions for brief and informative messages from sponsors.
Two examples of fee charging for court services may be instructive. Sometime ago, swingeing fees were introduced for the use of employment tribunals. These fees have resulted in a reduction of approximately 75 per cent in the number of cases raised at employment tribunals. The evidence could hardly be clearer that the fees operate as a barrier to justice.
A more extreme example was the bizarre introduction of cost recovery charges for the use of the criminal courts in England. This meant the convicted person received, in addition to his sentence, a bill for up to £1,200 for their use of the court. It took Michael Gove about ten minutes after his appointment as Secretary of State for Justice to bin that particular venture.
The Scottish Law Agents Society has rejected the proposal that the taxpayer should have no responsibility for the cost of the operation of the civil court system. The government consultation can be accessed at [email protected] until 12 October. One option would be to inform the consultation that the basis of the consultation is misconceived and that none of the options for achieving “full cost recovery” are acceptable.
• Michael Sheridan is Secretary of the Scottish Law Agents Society