Amidst controversy, the fees for issuing English High Court proceedings are expected to increase in March 2015.

The fee increases, unveiled on 16 January 2015, follow a paper setting out the UK Government response to a consultation on the reform of court fees1.

The UK Government objectives of the enhanced fees are to ensure that the English courts are adequately resourced and to help reduce the burden of taxpayer subsidies currently paid to the court system. The increased court funds generated are also expected to be reinvested to assist with the costs of ongoing modernisation and improvements.

However, concerns about the proposal to increase the costs of litigation have been raised at a high level.

In a letter published on 2 February 2015 in The Times newspaper from the President of the Law Society and other distinguished industry heads, the Government are accused of making the decision to increase costs based on “scant evidence” and without full consultation. In addition, the authors argue the proposal risks damaging the UK’s reputation as a global leader in commercial dispute resolution.

The Law Society, the representative body for over 166,000 solicitors in England & Wales, has also set out its detailed response to the enhanced fees proposal saying that these are unacceptable and will restrict access to justice2.

The enhanced fees proposals

Under the existing regime, the maximum fee for issuing a claim is currently £1,920 for a “money claim”, applying to claims valued at more than £300,000.

Table 1: Existing fees comparison with expected enhanced fees

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As a result of the new measures, the maximum fee is set to increase to £10,000 for all claims valued above £200,000.

For claims above £10,000 (which account for 90% of all money claims) and below £200,000, the new fee is 5% of the claim amount.

By way of illustration, the new fee to issue a claim in the amount of £100,000 is £5,000 (i.e. 5% of £100,000), whilst the current fee is £1,115.

The available data suggests that the uplift will apply to many of the claims brought before the Commercial Court. 60% of all Commercial Court cases currently have a value of over £300,000 and 16% have a value of over £1,000,000.

A slightly increased fee for issuing a court application, from £155 to £255, has also been announced. This new fee would, for example, apply to “on notice” applications to obtain an Order granting the provision of security for a Defendant’s costs, or an application to obtain an Order compelling a party to disclose documents relating to the issues in dispute.

Critics of the proposals argue that a downside to the new scheme is the frontloading of fees which are payable on issuing a claim (the payment of £10,000 for a claim above £200,000 will arise at the time of filing the claim form). This means that it will become more expensive to issue protective proceedings in order to avoid a time bar, for example.

The measures, if they proceed, will be implemented by the Civil Proceedings and Family Proceedings Fees (Amendment) Order 2015 and are anticipated to generate an estimated £120 million per annum to be reinvested into the English court system.

The Ministry of Justice has also launched a consultation seeking views on new proposals to raise fee income from possession claims and general applications in civil proceedings. The consultation period for these new proposals closes on 27 February 2015.

Court modernisation and improvements

While there are critics, the new fee increases are seen as part of wider efforts to modernise and improve the efficiency of the court system for the benefit of participants.

These initiatives include:

  • The opening of the Rolls Building in central London: for the first time, the Rolls Building brought under one roof the Chancery Division, the Admiralty and Commercial Court and the Technology Court. It is regarded as the largest specialist centre for the resolution of financial, business and property litigation anywhere in the world and boasts full wi-fi technology and ‘super-courts’ for large high-value disputes as well as multi-party cases. These include recent high profile cases such as Berezovsky v Abramovich[2012] and more recently Otkritie Investment Management Ltd & Ors v Urumov & Ors [2014], a case involving an alleged fraud worth US$175 million, 19 defendants and a hearing that lasted 46 days over six months, with over 20 witnesses giving evidence by videolink.
  • Technological advances: in civil matters, it is already possible to file many documents by email, including key documents such as the Particulars of Claim, Defence and Acknowledgment of Service. However, a new system for “e-justice” – the electronic filing of claims and online payments – is also in the pipeline for High Court “multi-track” claims (i.e. high value claims), possibly to be implemented later this year in October.

    To encourage electronic filing, discounts of 10% will apply to fees where the claim is initiated electronically using the Secure Data Transfer facility or Money Claims Online, although it is understood that this discount may not apply for claims of £100,000, or above.
  • Rationalisation: as part of the drive towards improved efficiency, staff numbers have already been cut by 3,500 since 2010.

Although the emphasis of the new proposal is for increased funding of these initiatives to come from litigants and not the taxpayer, the good news for litigants is that the Government is unlikely to introduce daily hearing fees for commercial proceedings. This remains one of the significant differences between the English High Court and other major alternative dispute resolution forums, such as the LCIA and LMAA.

Cost advantages of the English High Court

Further cost advantages offered to English High Court litigants include the following:

  • No hourly fees: the Judge’s costs are included as part of the fixed court fee. Time spent by a Judge hearing the dispute, or dealing with interim applications, is not charged to the parties. An arbitrator will tend to charge an hourly rate, which will vary.
  • Low administration costs: again these are included as part of the fixed fee. By comparison, both the ICC and LCIA charge administration costs.
  • No advance deposit: both the ICC and LCIA commonly require an advance deposit for the anticipated arbitrators’ fees and administrative costs. It is not unheard of for LMAA arbitrators to require security for their costs, which is an express entitlement under the terms of the LMAA Rules.

Conclusion

It remains to be seen how the Government responds to the calls for it to reconsider, but we shall report further when there are developments.

Table 2: Fees Comparison Table for a Claim of US$1 million 
Note: this table is for indicative purposes only, all fees referred to are subject to change and should be verified with the relevant administrative body. It also does not include the costs of a party’s legal advisors or third party disbursements, such as expert fees.

Click here to view table