06
Sep
21
Articles, Travel & Cross Border Claims
The Weekly Roundup: the ABBA Edition

As everyone knows, we at 1 Chancery Lane can’t resist a Dancing Queen, and it was with no small degree of excitement that we approached ABBA’s newly released tracks. We won’t spoil the experience for those of you who haven’t heard them yet by reviewing them here; suffice to say that this week’s Roundup finds us in nostalgic mood. But, as the dear old Romans used to say, times change, and we change with them, and it seems that the Ministry of Justice is going to raise court fees, which the Ministry points out have not been increased since 2016. Goodness! Five years! Will this increase pave the way for five-yearly reviews of fixed costs and guideline hourly rates, we wonder? Meanwhile, boffins at the Berkeley Research Group have been researching the psychological impact of hearing cases remotely rather than in person; their conclusions should inform the decision-making of those considering whether to apply for remote or in person hearings.

 

Money, Money, Money: are Court Fees set to Rise?

Earlier this year the Ministry of Justice opened a consultation on its proposal to increase a whole raft of court fees for users which had apparently remained unchanged despite increases in inflation and other costs since August 2016:

“This proposal aims to increase some court fees in line with historical inflation dating from August 2016 to April 2021, or the year the fee was last amended (capped at August 2016). This is to ensure that those who can afford to pay for the service continue to do so at a rate that is more comparable with the increased costs of providing these services. These proposed increases reflect historic inflation and therefore do not amount to an increase in real terms.”

It was pointed out that, at current levels, and notwithstanding the requirement on those who are able to pay fees when approaching the court, fee-revenue covers less than half of the running costs of HMCTS, with the tax-payer having to bring up the short-fall.

“Whilst the increases outlined in this proposal will not remove the need for the taxpayer to subsidise the system in part, they will reduce the taxpayer contribution required to ensure that our courts and tribunals have the necessary funding to deliver their important services and ensure access to justice for all. This is even more important as we look to recover from the impact of Covid-19”

It was also proposed that the fee-waiver thresholds would be proportionately increased.

The results of the consultation, which ran from 22nd March 2021 to 17th May 2021, showed that 61% of respondents opposed the increases both on grounds of timing, it being (let us hope) the tail-end of the Covid pandemic, and on grounds of the poor quality of service provided by HMCTS.

Despite this opposition, however, the Ministry of Justice has now given notice that the fee increases will go ahead nonetheless:

“The government believes there is a strong justification to proceed with increasing certain court fees and the HwF income thresholds by inflation.”

It went on:

“The proposed increases reflect historic inflation and are therefore not an increase in real terms. The income generated from these proposals will go towards the running cost of HMCTS and will ensure that the courts and tribunals can continue to deliver access to justice for all.”

The increase in 129 individual court fees will range across civil, family and magistrates courts and also have an impact on the Court of Protection. It is estimated that the fee increases will raise between £23 and £29 million per annum for HMCTS, dropping to £20-£25 million once fee-remissions are taken into account. The proposed monthly income thresholds to be eligible for help-with-fees will move to £1,170 (from £1,085) for single people and to £1,345 (from £1,245) for couples.

Interestingly, it was conceded that it was not really possible to estimate what impact the fee increases would have on court user-volume, but that “even allowing for initially lower volumes, we expect the proposed changes to increase fee income.”

As to complaints as to the quality of service provided by HMCTS, it was accepted that frustrations might sometimes arise, but pointed out that the proposed increases were simply intended to cover rising costs (sounds like a cop-out to me – Ed.).

About the Author

Dr Russell Wilcox was called to the Bar in 2000, and before joining chambers enjoyed an illustrious career in academia. He was an associate member of McNair Chambers in Qatar, where he worked on a number of large-scale cross-jurisdictional commercial disputes and on international arbitral proceedings, and acted as disclosure counsel in Athenasios Sophocleus & Others v Secretaries of State for Foreign and Commonwealth Affairs and Defence, relating to the actions of the Colonial Administration in Cyprus during the Cyprus Emergency of 1956 to 1959. He now accepts the full range of work undertaken by the travel team at 1 Chancery Lane.

 

Take a Chance on Teams: the Psychological Impact of Remote Hearings

Since the beginning of the Covid-19 pandemic, we have all had to adjust to the increased use of remote hearings. Whilst it was not entirely unusual pre-pandemic to have an interim hearing by way of telephone, it was not commonplace for trials or inquests, for example, to take place wholly by way of video. As those frequent readers of the Weekly Roundup are aware, although remote hearings have presented a number of benefits to court users, they are not without some challenges.

A recent report by the Berkeley Research Group entitled “The Psychological Impact of Remote Hearings” makes for interesting reading. The report considers the views and experiences of lawyers, expert witnesses and psychologists of remote hearings, across jurisdictions. Overall, the experiences of remote hearings of those interviewed were “largely positive” and “exceeded expectations”. In particular, the efficiencies and savings in terms of time and money were noted by all participants. Further, those interviewed indicated a preference for hearings to be either fully remote or fully face-to-face, rather than hybrid.

However, cross-examination techniques deployed by barristers were perceived by participants to be “significantly less effective” in a virtual courtroom, which may not make for entirely surprising reading. Further, in my experience, the solemnity of the proceedings can occasionally appear to be lost in a virtual courtroom, particularly when all participants, including the judge, are appearing from home. Other participants noted the disadvantages in staring at a screen, which was seen as being less engaging than appearing in a physical courtroom.

One suggestion made by psychologists to reduce any unconscious bias from judicial decision making in remote hearings was to withdraw video from proceedings altogether, to allow any judgment to be based purely on speech. However, this suggestion would give rise to a number of concerns and does not appear realistic. If judges and lawyers could not see witnesses giving their evidence, they would not be able to see if they were being influenced or coached, or if they were alone. Such an approach would arguably be dangerous.

Despite the concerns raised by participants, the report notes that the majority of participants did not consider that the outcomes of proceedings in a virtual courtroom were any different. In light of that, although some issues in remote hearings may need tweaking, they are likely to be here to stay.

About the author

Ranked by the Legal 500 2021 as a Rising Star, Dominique Smith was called in 2016 and has a busy practice in travel law. She undertakes work for both Claimants and Defendants in package travel claims, contractual disputes, and other related claims. Dominique has a particular interest in cross-border clinical negligence claims and regularly appears in the Coroners’ Courts.

 

…And Finally…

In the next in our series How To Get The Most Out Of, this week will see Sarah Prager discussing with Matt Gatenby, of Travlaw, How To Get The Most Out Of Your Client. In what promises to be an interesting session for both clients and their representatives they will be grappling with what clients want and what they need (and whether these might be different concepts); taking instructions; giving advice (welcome and unwelcome); keeping clients and yourself informed; and providing a full service. Register here for the opportunity to make your views known and to see what Sarah, Matt and the other participants have to say on the topic.

Written by or involving: Russell Wilcox, Dominique Smith

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