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EVERYDAY LAW: Hearing fees and justice

Cecil McCarthy, [email protected]

EVERYDAY LAW: Hearing fees and justice

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IN BARBADOS, court fees in the Supreme Court are usually paid by adhesive stamps which are placed on the documents on filing and cancelled by the particular officer of the court. The current fee schedule has been in place since April 1982.

Under the schedule, for fees ranging from $30 to $70 (in the case of a divorce application), a litigant could initiate civil or family proceedings in the High Court.

Since these fees have been in place for over 30 years, it is fair to say we subscribe to the view that the public benefit justifies having a civil justice system that it is fully funded by the taxpayers.

In last week’s article, I mentioned that in England and Wales fees in civil and family matters are charged with a view to ensuring that taxpayer subsidies are kept to a minimum and to ensure the courts are adequately resourced.

I also had a look at the system employed in Australia which also has a justice system that enjoys a good reputation. The fee system there also places a strong emphasis on user fees, which include not only fees for commencing legal proceedings but hearing fees. Their fee system also requires corporations to pay greater fees than individuals.

The result of the schedule is that more resources can be used to support the legal system.

Access to justice

The truth is that like Britain, we can no longer afford all aspects of the welfare state which I submit, in our context, embraces the current regime of fees in the civil courts.

In Canada, United Kingdom and in Australia, much discussion has taken place about the question of access to justice as resources for legal aid have been cut and fees increased for court users.

Surprisingly, in our situation little has been said about providing for the operation of the courts, even though it is obvious that those costs would have increased with the construction of a new Supreme Court Complex as well as the increase in criminal and civil cases before the court, and the introduction of new civil procedure rules.

The issue of access to justice is a real one, and care must be taken to ensure that any new model for funding the administration of justice does not compromise the right of access to justice, which is a fundamental aspect of the rule of law.

Indeed, only last year in the landmark case of the Trial Lawyers Association of British Columbia v British Columbia (Attorney-General), legislation in British Columbia was struck down as unconstitutional on the basis that hearing fees prescribed by the legislation infringed upon the constitutional right of access to justice.

No adjustments

In most jurisdictions court fees are kept under review and adjustments made based on the need  to fund the costs of the judicial system. In Barbados, we have not made any adjustments to court fees over the years and, as a result,

the increased costs of the operation of the court system have been funded by the taxpayers.

Personally, I prefer a funding model that requires users of the courts to pay a greater share of the costs of the system.   

Consideration should also be given to the institution of hearing fees which could become effective after two hearing days to encourage more judicious use of court time.

A model that requires users to pay substantially more fees will have to permit fees for qualified applicants to be reduced or exempted on the basis of hardship or lack of means. 

I also believe that a change of the model of funding requires some study and consultation with stakeholders.

• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected]