Burrows, R (on the application of) v Lord Chancellor

A consultation on increased court fees is lawful where its scope is clearly defined, the appropriate statutory consultees are consulted, and the decision-maker has regard to the responses. A claimant cannot use judicial review of a new fee instrument to challenge an existing fee structure or pursue an alternative policy that was outside the consultation. A challenge to a fee charged to the legal aid fund is unarguable where it is payment for an HMCS service and both relevant budgets are administered by the same department. Costs of an oral permission hearing should not ordinarily be awarded against an unsuccessful claimant absent exceptional circumstances.

David Burrows, a solicitor specialising in family and child law, sought permission to challenge the Family Proceedings Fees (Amendment) Order 2005 and applied for a stay pending determination of permission. The Order increased certain family proceeding fees, including the divorce petition fee, after an eight-week consultation involving statutory consultees and other stakeholders.

The claimant alleged inadequate consultation, unfair and irrational fee increases, and an unreasonable charge for detailed assessment of legal aid bills. Permission was refused after an oral hearing. The court also considered the defendant’s application for costs and the unresolved question whether a statutory instrument could be challenged before expiry of the parliamentary negative-resolution period.

1. Permission and interim relief. Permission to apply for judicial review was refused and the requested stay was refused. The grounds of challenge were unarguable.
2. Consultation. The consultation was limited to whether the particular increases were apt to meet HMCS cost-recovery targets. Its defined scope did not require reconsideration of the underlying policy that court users should contribute to costs. The consultation was proper in substance and timing. The statutory consultees listed in Courts Act 2003, section 92, were consulted through a response from the Lord Chief Justice on behalf of the Judicial Executive Board, and the Lord Chancellor had regard to the responses received. Wider objections could be raised during the announced reviews of exemptions, remissions and the fee structure.
3. Substantive challenge. The complaint that the fee structure was regressive or unfair did not establish irrationality. The alleged imbalance between divorce petition and ancillary relief fees already existed under the previous regime, while the Order did not increase the ancillary relief fee. The existing structure was outside the consultation. Comparison with civil monetary claims was inappropriate because the amount in issue in ancillary relief proceedings may be unclear or unascertainable.
4. Legal aid assessment fee. The increased fee for detailed assessment of legal aid bills was a charge for an HMCS service. The fact that it was payable from the legal aid budget did not make it unreasonable or unlawful, particularly since both HMCS and the legal aid fund were financed by the DCA.
5. Parliamentary procedure. The court left undecided whether judicial review could be brought against an instrument made under section 92 before the expiry of the 40-day negative-resolution period under Courts Act 2003, section 108, because the claim failed on its merits.
6. Costs. Applying Mount Cook Land Ltd v Westminster City Council [2004] 2 ECR 405, the court refused the defendant’s costs of attending the oral permission hearing. The urgency, Christmas vacation and the claimant’s limited access to relevant documents did not amount to exceptional circumstances warranting that order.