Court Fees, Access to Justice and Freedom of Information

On Monday new tables of fees enter into force for the Sheriff Courts and Court of Session in Scotland.  The new table of fees is necessary because of the new Simple Procedure that is coming into force next week to replace the Small Claim procedure and to partially replace the Summary Cause procedure in the Sheriff Court.  It would appear that the Scottish Government has used this opportunity to increase some other fees as well.

The other increases are part of the Scottish Government’s aim to get “full cost recovery” in the civil courts; that is, that so far as is possible those who litigate in Scotland’s civil courts fully fund the cost of running those civil courts.  I have grave misgivings about such a policy for access to justice (and I am not alone in that view).  This blog has, in recent times, moved more towards the field of Information Law and to that extent, I am going to look at these latest court fee rises in the context of Freedom of Information appeals.

In Scotland, under the Freedom of Information (Scotland) Act 2002, if a person is dissatisfied with how a public authority has handled a FOI request they can make an application to the Scottish Information Commissioner (SIC).  The SIC has the power under the 2002 Act to make a decision as to whether the public authority has complied with the Act, and if not, she has the power to state what steps the public authority must take in order to comply with the act (including to order that the public authority release information to the requester).  If a requester or public authority is unhappy with the Commissioner’s decision there lies a right of appeal (on a point of law) to the Court of Session.

The Scottish appeals procedure differs vastly from the appeals procedure under the UK Freedom of Information Act, where a right of appeal (on both fact and law) exists to a specialist First-Tier Tribunal and then on to the Upper Tribunal and the Courts (on a point of law only).  There is currently no charge for lodging an appeal with the First-Tier Tribunal, nor for any step of process or a hearing.  That is not the case in Scotland.

Unless the party bringing the appeal is in receipt of Civil Legal Aid, there are court fees to be paid.  The appeals are also dealt with under Chapter 41 of the Rules of the Court of Session and go straight to the Inner House.  For those who are unfamiliar with the Scottish court structure, the Court of Session is split into two “houses”.  The Outer House hears cases at first instance and is usually presided over by a single Senator of the College of Justice; while the Inner House is the appellate court and hears appeals from the Outer House as well as other courts, tribunals and regulators (such as the Sheriff Appeal Court and the Scottish Information Commissioner).  Appeals from the Inner House are (with permission) to the UK Supreme Court; the Inner House is therefore Scotland’s supreme Civil Appellate court.  In the Inner House, at least three of Scotland’s most senior judges will sit to hear the appeal.

On 28 November, the Court Fees (Miscellaneous Amendment) (Scotland) Order 2016 shall enter into force.  Schedule 1 to that Order sets out a new table of fees in the Court of Session.  Paragraph 1 in Section B of the Table sets a new fee for lodging an “Appeal, application for leave or permission to appeal, summons, or other writ or step by which any cause or proceeding, other than a family action, is originated in either the Inner or Outer House (to include signeting in normal office hours)”.  The new fee is set at £300, up from £214.  So, in order to lodge your appeal against a decision of the SIC the Appellant (whether an individual or public authority) needs to stump up £300.  The Respondent (who is the SIC) will also have to pay £300 (again, up from £214) to lodge their Answers to the Appeal.

There may be other fees to pay along the way, depending on the procedure that ends up taking place; however, when it gets to the hearing of the appeal, the costs start to mount up significantly.  Each party (appellant and respondent) will be required to pay £500 (up from £239) per 30 minutes (or part thereof).  Therefore, a hearing that lasts a full court day (roughly 5-6 hours) will result in a court fee of between £5,000 and £6,000; and that is before solicitors’ fees and the fees of Counsel are added.  This is an astronomical figure.  It is not paid by anyone in receipt of legal aid (and legal aid is available for FOI matters in Scotland), but you do not have to be very well off not to qualify for legal aid.

This represents a significant barrier to accessing justice.  These are sums of money that most middle earners will struggle to get their hands on, even if they attempt the appeal as a party litigant (which given the complexity and sometimes archaic nature of the Court of Session Rules is no easy task).  When it comes to the question of FOI, it only strengthens my belief that appeals against decisions of the SIC should be to a lower court or tribunal in the first instance.

There is a much more fundamental point however; the civil courts should be accessible to everyone.  The level that court fees are rising to (and they are going to continue to rise over the next few years as the Government moves towards “full cost recovery”) presents a very real barrier to justice.  The Scottish Government accepted that fees represent a barrier to justice in respect of the Employment Tribunal fees set by the UK Government (and has pledged to abolish them when the power to do so comes to the Scottish Parliament in the near future).  However, the Government seems happy to continue with a policy of full cost recovery (that was, admittedly, started under the Labour/Liberal Democrat Administration that left office in May 2007).  It is a flawed policy that will place a very real barrier to the courts for very many people.  That, is a tragedy for justice and for democracy.

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