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Being stuck and unable to afford it

View profile for Jon Rees
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My oldest son recently became the proud owner of an iPad. The arrangement was Mum and Dad would buy it; oldest son would pay us back using birthday money and pocket money he will earn.

I asked him this morning how he would feel if he discovered the price had gone up to a sum more than 5 times (or 500%) as much as it was. Same iPad, no extra bells or whistles; not a 500% better iPad: the same thing. Just fantastically more expensive.

His answer, ‘Well, I’d be stuck. I couldn’t afford it’.

On Monday 9th March, despite opposition from almost everyone who was aware of the proposals – Judges included – the Civil Proceedings and Family Proceeding (Amendment) Order 2015 will come in to force. True there could be a judicial review, but it would be wrong to hold your breath on that. For the spinal cord injury claims we deal with the cost of issuing a claim in Court will increase from £1,920 to £10,000.

Some claimants might be entitled to a Court Fee Exemption based on their capital savings, investments and their income, but the majority of people we help would have to meet the full £10,000 to advance their claim where it hasn’t been possible to reach agreement with the opponent outside of the Court process.

If you win in Court the opponent can be asked to pay the Court fee and other costs you incur in fighting the claim (this fee hike is not welcomed by either side of the litigation divide). If you lose, your solicitor may well write off his or her fees, your barrister might do likewise. The experts can’t, the Court won’t.

Of course you are likely to have some legal expenses insurance in place to indemnify you in respect of those disbursement costs (and the legal expenses insurance premium may well be operating as a no win no premium arrangement). Doubtless the premium payable there will also now have to increase in light of the increase to court fees. Don’t forget you have to pay the premium from your compensation if you win.

Paying experts’ and Court fees as the case progressed used to be something solicitors would often attend to (within the retainer arrangement), but not many businesses can simply absorb a tenfold increase in court fees. The fee may well be repaid when the case concludes but the cash to pay it must be found as the case is being pursued.

Quick predictions:

1. Detailed analysis of clients’ capital and income situation for possible fee exemption where litigation even more important (see 3 below).
2. Disbursement Funding Agreements will be more prominent. Clients are likely to be asked to pay for disbursements incurred as case progresses. Not many can afford to cover the tens of thousands of pounds that are needed to cover the costs of experts and now court fees in spinal injury cases, particularly where liability is resisted and no interim payment is forthcoming. Interest on potentially tens of thousands of pounds over 2-3 years is not be cheap and is unlikely to continue to be absorbed by the solicitor. Interest charged is at least something that the opponent can be asked to pay where the claim is ultimately successful.
3. A move away from the Courts and towards mediation.
4. Chilling effect on the development of the law, of the clarification of the law and society no longer seeing justice being served.

Magna Carta recognised that everyone should have access to courts and that costs and money should not be an issue if someone wanted to take a problem to the Law Courts.

Eight hundred years later, when it comes to accessing justice and, paying Court fees in particular, aren’t most of us now likely to be stuck and unable to afford it?