New Court Fees and a Subliminal Message

On Monday 9 March 2015 the government's much talked about increase in court fees came into force.

The rise in court fees is significant.  For claims at £10,000 or above, and below £200,000, the court fee will be 5% of the claim.  For claims above £200,000 the new court fee will be fixed at £10,000. By way of a comparison the highest court fee payable under the old rules was £1,920 so you could say that a five-fold increase is something to get upset about.


There has been much chest-beating, weeping and gnashing of teeth by many lawyers who argue that the increases are too high and will be a barrier to many potential litigants having access to justice.


It is said that if you put your head above the parapet you risk getting it shot off so I may need first aid after you read my views on these changes.


It has to be said that because these increases follow on the back of the replacement of Conditional Fees Arrangements with Damage Based Agreements and a mandatory requirement for cost budgeting, the government is trying to send us a message. But what is that message? Is it that the cost of litigating has got out of control and parties have to find an alternative to the casino gamble that litigation can often be? Is it that the government has been worried that lawyers have encouraged clients to litigate cases which really should have been withdrawn or settled earlier?


For me the court fees are such a small proportion of the overall costs that I can't believe it will be a barrier to a determined party with a good case from litigating and, for me, the message the government is sending is much simpler. Parties should look to alternative means of resolving their disputes rather than simply relying on the state system.


The alternatives are adjudication, arbitration and mediation but of these alternatives the only system of dispute resolution that the Courts continue to encourage through cost sanctioning is mediation.


Will the increase in court fees see an increase in the number of cases being mediated? Time will tell but from discussions I have had with fellow mediators we are all reporting significant increases in the number of cases we are being appointed on, so it does appear that parties are now engaging in early mediation and, if this has been the general intention of Parliament, then its policy appears to be working.


So don't litigate - mediate!!

Peter Vinden

Peter is an experienced professional in the construction industry with particular expertise in quantity surveying and the commercial management of contracting organisations.