As anyone who’s flown budget will know, it’s the “extras” where they get you. Whether it’s priority boarding, a window seat or those neck cushions that (if anything) make sleeping more uncomfortable, a section of the market will always pay more for an improved service, however marginal the improvement.

Until now the court service has been off-limits to private interests or attempts to make litigation profitable for the courts (HMCTS currently runs an annual £1bn loss). Courts have instead set uniform fees (based on the nature and/or value of the proceedings) for a uniform service.

That may be about to change as a result of proposals being developed by McKinsey & Co on behalf of the Ministry of Justice.

The debate over the privatisation of courts in England and Wales escalated on Monday after the Guardian published a letter from the Lord Chief Justice, Lord Judge to Chris Grayling MP, in which he raised serious reservations about the plans. But while opponents of the reforms talk apocalyptically about end of the independent judiciary, the reality is likely to be far more subtle, yet no less significant.

Just as budget airlines use multiple price structures to harnesses the varying willingness of their customers to pay more for a differentiated service, might this not be achieved in the court service without trespassing on the independence of the judiciary or offending the rule of law? The key is in the division of powers between the administration of the courts (by HMCTS) and the administration of justice (by the judiciary).

Take for instance the issue of “delay”, the single greatest complaint of the average County Court, (other than the Blackhole known as the post room): The practice of listing hearings and organising a judge’s ‘box work’ is largely, if not entirely, the court staff’s domain. What is there to stop the MoJ introducing a “Premium” and “Basic” Part 7 procedure? A system of tiered court fees which dictate the priority to be given to a particular case: The higher the fee, the faster the case is processed and brought on for a hearing.

And there are other perks courts could *conceivably* offer the well-heeled litigant:

  • Early morning, evening or weekend listings
  • A shorter court day or a longer lunch break
  • The right to interim hearings by telephone
  • A guarantee that the case will not be vacated by the court
  • Reserve a judge

These moves do not obviously affect the independence of the judiciary but may affect the quality of justice received by litigants and, just as importantly, their perception of that justice. As ever, the devil will be in the detail.