A party to litigation inevitably finds themselves subject to increasing costs. Those costs include fees which need to be paid to the Court throughout the proceedings. For example, a Claimant is required to pay an issue fee when initially bringing a claim, a hearing fee before trial and other fees dependant on what is required in the specific case. These fees can be expensive with Court issue fees falling anywhere up to £10,000. It follows that some Claimants or Defendants simply won’t be able to pay the whole or some of those fees.
To mitigate that issue, the Court introduced a scheme in 2013 called “Help With Fees” or “fee remission” to help individuals who find themselves a party to litigation. An individual is able, under the scheme, to make an application to the Court for (1) confirmation that it doesnot to pay the relevant fee or (2) for a refund of a fee that they have already paid, but could not afford to pay at that time. This scheme is open to people who have no savings or investments (or only a small amount), receive certain benefits or are on a low income.
When making an application, the Court makes an assessment on an individual’s eligibility for “Help With Fees”. To assess eligibility, the Court uses two tests – the capital test and the income test.
The capital test is assessed by working out what savings and investments you (and your partner if you have one) have including money in ISAs and other savings accounts, joint savings accounts with a partner, fixed rate or investment bonds among other assets. If you have no savings or less than £3,000 in savings, you would be eligible for “Help With Fees” subject to meeting the income test. If your savings are more than £3,000 then your eligibility is assessed against the amount of the Court fee payable by you. Furthermore, if you (or your partner) are 61 or over and have less than £16,000 in savings, you may be eligible for “Help With Fees”.
The income test is assessed in terms of the money you received in the previous calendar month of you making the application. If your monthly income is less than £1,170.00 plus £265 for each child you have (if you are single) or £1,345 plus £265 for each child that you have (if you have a partner) then you may be eligible for “Help With Fees”. If your monthly income is more than those figures but below £5,170 plus £265 for each child (if you are single) or £5,345 plus £265 for each child (if you have a partner) then you may be eligible for a partial fee remission.
On 7 March 2023, the Ministry of Justice commenced a consultation to seek views on potential key reforms to the “Help With Fees” scheme including: (1) revising the income test for eligibility; (2) revising the policy for calculating when a partial fee remission applies; (3) revising the capital test for eligibility and (4) making amendments to the application process.
On 16 October 2023, the Ministry of Justice published its response to this consultation. The Ministry of Justice have concluded that it intends to:
• Increase the thresholds used for the income test and those thresholds will vary dependent on different families and their circumstances;
• Increase the minimum capital threshold for the scheme, which will allow people to have more capital before they become ineligible for the scheme;
• Increase the age cap from 61 to 66;
• Revise partial fee remissions so that the more that an individual earns, the more they pay towards the relevant fee; and
• Amend the procedure with regard to signing of the forms to allow a party’s litigation friend or legal representative to complete and sign the form on behalf of the party.
The legislation is set to come into force on 27 November 2023. Practically speaking, the changes mean that more individuals will be eligible for “Help With Fees” than under the old tests and that the application process willbe streamlined (in some areas).
Please note any reference to legislation is true as at the date of this article being published. Please always consult the current legislation and/or guidance. If you wish to bring a claim or are involved in litigation, please do not hesitate to contact our solicitors at email@example.com.