A few days could make all the difference for those involved in issuing civil claims in the courts of England and Wales. If you sue someone this week and claim £200,000, you will have to pay a court fee of £1,515. On Monday, that fee goes up to £10,000. So expect a busy Friday.

We knew this was coming, of course. I wrote in January about planned fee increases of up to 600%. Owen Bowcott explained the background earlier this week. However, the story bears closer analysis because of what it tells us about the attitude of the political parties and the role of parliament.



Asking the House of Lords to approve the increased charges in a debate on Wednesday night, Lord Faulks, the justice minister, referred to them as “enhanced fees”, which he defined as “fees that are set above the costs of the proceedings to which they relate”. This is surely government doublespeak: the normal meaning of enhance is to improve or intensify — not merely to increase.

Faulks reminded the dozen or so peers who were in chamber that parliament had given the lord chancellor the power to prescribe fees above costs in the Anti-social Behaviour, Crime and Policing Act 2014. He argued that the increases would bring in a much-needed £120m for the courts.



Labour did not force a vote on the issue. From the front bench, Lord Beecham merely urged the government to examine the implications of their proposals in greater detail. In a Commons committee last month, Andy Slaughter MP said there was “nothing fundamentally objectionable” in increasing fees beyond full cost recovery.

It took an independent peer to held the government to account. Lord Pannick QC recalled that Chris Grayling, the justice secretary and lord chancellor, had said last week that he was “incredibly proud of our legal heritage”.

Now, Grayling was introducing a change that would do “incredible damage to the legal heritage because it will impede access to justice”.

The power to increase fees above cost had certainly been given to the lord chancellor by parliament. But Grayling’s draft order was “plainly not” a fair, reasonable or proportionate exercise of that power, said Pannick. “For litigants to have to pay such substantial sums in advance of bringing a legal claim will inevitably, in practice, deny access to the court for many traders, small businesses and people suing for personal injuries… Unscrupulous debtors will be far less likely to pay up if they suspect that their creditor cannot afford the court fees.”

Pannick recalled a scathing letter in which senior judges told Grayling his draft impact assessment made “some very sweeping and, in our view, unduly complacent assumptions about the likely effect on the volume of court claims issued and access to justice of the proposed fee increases”. By deterring litigation, Pannick predicted, the increase would raise much less than the expected £120m.

The well-respected peer ended his speech with a peroration that deserves quoting in full.



Mr Grayling’s period of office has been notable only for his attempts to restrict judicial review and human rights; his failure to protect the judiciary against criticism from his colleagues; and the reduction in legal aid to a bare minimum provision. Yesterday, Mr Grayling lost yet another judicial review claim, this one overturning the regulations which authorise legal aid for judicial review cases only after permission has been granted to bring the proceedings. Now for his finale before the general election Mr Grayling is undermining basic access to justice in the courts, by seeking to make money from small businesses which simply want to enforce their contractual rights and from victims of personal injury seeking to obtain compensation from the wrongdoers. That is not a legal heritage of which anyone could be proud. If you wrap yourself in Magna Carta, as Mr Grayling sought to do last week at the Global Law Summit, you are inevitably and rightly going to invite scorn and ridicule if you then throw cold water over an important part of our legal heritage.

Responding to the debate, Faulks said that “litigation is very much an optional activity”. He added that before suing, you needed to be pretty sure you would win and that the defendant would pay up. If the claim were successful, court fees would be paid by the defendant.

Pannick disagreed and said: “For many people — those suing for debts or to recover compensation for personal injury — litigation is often a necessity to keep your business alive or to maintain any quality of life.”

On this occasion, though, the crossbencher had no chance of defeating the government. He withdrew his amendment and the fee order was agreed.



Yet that is not the end of the story. Pannick was optimistic that “the courts will inevitably add this order to the long list of Mr Grayling’s regulations which have been declared unlawful in the past three years”. The Law Society, with the support of other lawyers’ representative bodies, is intending to seek a judicial review of the increases.

The most eye-catching of its grounds is that “the proposals would be tantamount to ‘selling justice’ contrary to the principles of Magna Carta”. Here, the argument is presumably that fees intended to cover the cost of specific court services are fine but fees intended to cover court services more widely are unlawful.



This is a tricky subject, not least because the initial cost of issuing proceedings is the same whether a case is tried or settled. But it is hard to see that introducing so-called enhanced fees was the intention of section 29 of Magna Carta 1297 which, as it appears on the statute book, says “we will sell to no man… either justice or right”. In any event, the statute must be taken to have been amended by the 2014 Act. The Law Society’s other arguments are more promising, though.



What conclusions can we draw? That governments must make hard decisions in time of austerity. That opposition parties much prefer the government to take the blame rather than come to power and take similar decisions themselves. That the House of Lords has an important function in drawing public attention to what governments would rather the public did not pay attention to. That the Lords depends on the initiative of high-minded and independent peers to help it fulfil that role. And that, on the whole, the public has very little interest in what is being done in its name.

