Senior -Milne v Secretary of State for Justice

A requirement that a litigant subject to a civil restraint order pay a modest fee before seeking permission to appeal is not, in itself, incompatible with Article 6. A restriction on access to a court is permissible where it pursues a legitimate aim, is proportionate, and does not impair the essence of the right of access. The fee’s impact must also be assessed in the individual case, including its amount, the applicant’s ability to pay, the scope of the restraint order and any refund mechanism.

The claimant was subject to a limited civil restraint order made in ongoing County Court proceedings. He sought judicial review of the requirement in paragraph 10 of Schedule 2 to the Civil Proceedings Fees Order 2008 that he pay the prescribed fee before seeking permission to appeal the order. Permission was granted on the fee issue alone. The claimant contended that the fee requirement was incompatible with Article 6, both generally and as applied to him.

1. Claim refused. Paragraph 10 of Schedule 2 to the Civil Proceedings Fees Order 2008 was not incompatible with Article 6.
2. The right of access to a court may be subject to regulation. The restriction must preserve the essence of that right, pursue a legitimate aim and bear a reasonable relationship of proportionality to that aim. The principles summarised in Forsdick v Bhamjee [2004] 1 WLR 88 were applied.
3. The fee requirement pursued a legitimate aim. It encouraged a vexatious litigant to consider carefully whether to make an application and recovered part of the court service’s cost. The fee was £80, whereas the average cost of such an application was £285. The requirement was proportionate and was not a revenue-generating restriction requiring particularly rigorous scrutiny.
4. The fee was modest and refundable if permission was granted. The claimant’s restraint order controlled satellite applications but did not prevent him pursuing the underlying County Court claim. The essence of his Article 6 right was therefore preserved.
5. The claimant had provided no independent evidence that he could not pay. Receipt of Jobseekers Allowance did not establish inability to pay. The requirement merely required him to risk £80 on the merits of an application, a burden ordinarily faced by litigants.

The application for judicial review was refused.

This was a first-instance judicial review. Permission was granted on the fee issue alone. The claimant’s other grounds were rejected, and permission to appeal on those grounds was refused and certified as totally without merit.