England and Wales High Court (Administrative Court) Decisions

1. LORD JUSTICE ROSE: There will be unapproved transcripts of these judgments available at the conclusion of delivery. Laws J will give the first judgment.

2. In these proceedings for judicial review brought with leave granted by Lightman J on 19th February 1997 the applicant seeks a declaration that Article 3 of the Supreme Court Fees (Amendment) Order 1996 ("the 1996 Order") is ultra vires section 130 of the Supreme Court Act 1981 and unlawful.

3. The applicant is unemployed, has no savings, and receives income support of £57.90 per week. He wishes to bring proceedings for malicious falsehood and libel. Much detail of his prospective claim is given, but I do not consider it necessary to go into any of it for the purpose of resolving the issues raised on this application. Legal aid is not available for actions wholly or partly in respect of defamation, and the applicant seeks to bring the proceedings as a litigant in person. Time for bringing such proceedings will expire very shortly. With effect from 15th January 1997 the 1996 Order amended the Supreme Court Fees Order 1980 ("the 1980 Order") so that it now provides as follows in the following material respects. The fee of £120 for issuing a writ, which was prescribed by the 1980 Order, becomes a minimum fee for issuing a writ for claims limited to £10,000 or less (Article 6(b)). The fee for issuing a writ where no monetary limit is specified is £500 (Article 6(b)). More pertinently, Article 3 of the 1996 Order repeals provisions contained in Article 5(1) and (3) of the 1980 Order which relieved litigants in person who were in receipt of income support from the obligation to pay fees, and permitted the Lord Chancellor to reduce or remit the fee in any particular case on grounds of undue financial hardship in exceptional circumstances.

4. It is said that the applicant is in consequence unable to issue proceedings, as he cannot afford to pay a fee of either £500 or of £120. Not only is legal aid not available for proceedings in relation to defamation, by virtue of section 14(1) of, and paragraph 1 of Part II of Schedule 2 to, the Legal Aid Act 1988. In addition the applicant cannot sue in the County Court. Section 15(2) of the County Courts Act 1984 provides:

5. And section 18 provides:

6. The applicant's evidence shows that his prospective defendants will not consent to his claim being brought in the County Court.

7. In addition to the facts pertaining to the applicant himself, the court has evidence from his solicitor, Mr Grosz, and also from Miss Ashton of the Public Law Project, describing other categories of case where persons on very low incomes are prevented by the terms of the 1996 Order and in particular Article 3 from taking process in the courts. The principal categories are certain types of debt and housing cases. They include by way of example a person on income support who cannot afford the £10 fee to apply to set aside a default judgment, and another person on income support threatened with eviction as a consequence of possession proceedings by her landlord's building society who cannot afford the £20 fee to be joined in the proceedings as an interested party. The respondent has not put in any evidence in reply to this material, partly because it was served late and partly because Mr Richards for the Lord Chancellor says it is irrelevant. I see no reason not to accept what is said in these affidavits. In my view, it is clear on the evidence before us that there is a wide-ranging variety of situations in which persons on very low incomes are in practice denied access to the courts to prosecute claims or, in some circumstances, to take steps to resist the effects of claims brought against them.

8. The actual or purported vires for the 1996 Order is to be found in section 130 of the Supreme Court Act 1981 which provides:

9. All four Heads of Division, as well as the Treasury, concurred in the making of the 1996 Order. The argument as to its vires asserts no want of necessary formality, nor that the language of section 130 does not appear on its face to permit what has been done. Rather the primary submission is that there exist implied limitations upon the Lord Chancellor's power to prescribe the fees to be taken in the Supreme Court. Section 130 does not permit him to exercise the power in such a way as to deprive the citizen of what has been called his constitutional right of access to the courts. Such a constitutional right (a notion which will itself require further elaboration) is said to derive from two sources: the common law, and Article 6 of the European Convention on Human Rights ("ECHR").

10. Mr Richards' skeleton argument for the Lord Chancellor does not grapple with the question whether the common law recognises such a thing as a constitutional right, or, if it does, what it means. His approach to what has been called the "access to justice" issue is a conventional one. It may, of course, be none the worse for that. This is how it is put:

11. The last sentence is plainly right; and it suggests the unspoken question, what is the precise nature of any constitutional right such as might be outwith the power of government, acting under a provision such as section 130, to abrogate?

12. The common law does not generally speak in the language of constitutional rights, for the good reason that in the absence of any sovereign text, a written constitution which is logically and legally prior to the power of legislature, executive and judiciary alike, there is on the face of it no hierarchy of rights such that any one of them is more entrenched by the law than any other. And if the concept of a constitutional right is to have any meaning, it must surely sound in the protection which the law affords to it. Where a written constitution guarantees a right, there is no conceptual difficulty. The State authorities must give way to it, save to the extent that the constitution allows them to deny it. There may of course be other difficulties, such as whether on the constitution's true interpretation the right claimed exists at all. Even a superficial acquaintance with the jurisprudence of the Supreme Court of the United States shows that such problems may be acute. But they are not in the same category as the question: do we have constitutional rights at all?

13. In the unwritten legal order of the British State, at a time when the common law continues to accord a legislative supremacy to Parliament, the notion of a constitutional right can in my judgment inhere only in this proposition, that the right in question cannot be abrogated by the State save by specific provision in an Act of Parliament, or by regulations whose vires in main legislation specifically confers the power to abrogate. General words will not suffice. And any such rights will be creatures of the common law, since their existence would not be the consequence of the democratic political process but would be logically prior to it. I shall explain in due course what I mean by a requirement of specific provision, a concept more elusive than it seems.

14. Mr Duffy for the applicant cited a number of authorities to support the proposition that access to the courts is a right of a kind such as I have sought to describe. Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909 was a decision of their Lordships' House whose facts were far distant from those of the present case. It concerned the reach of the High Court's power to control the conduct of arbitrators. But at 977D-E Lord Diplock said this:

15. It is to be noted that many of the cases cited in Miss Ashton's affidavit before us concerns not plaintiffs, but defendants, whose access to the court has in effect been barred by the provisions contained in Article 3 of the 1996 Order.

16. I would at this stage make two observations about the impact of this reasoning upon the issues this court must decide. First, Mr Richards submitted that the present case is not analogous to a situation where access to the court is directly interfered with, as by placing impediments upon a litigant's communications with his solicitor. I do not understand how that can be so. In Leech a general rule-making provision was relied on as authorising a regulation which permitted the censorship of a prisoner's correspondence. Nothing in the Prison Act (or the rule) made specific reference to the position where a prisoner was communicating with his solicitor. Here likewise, section 130 makes no specific reference to the position where a person is prevented from access to the court because he cannot pay the fee prescribed by the rule. If anything the present case is a fortiori the Leech case: it was not the consequence of the rule there under assault that the prisoner was disabled from going to court altogether. Secondly, as the passage I have cited shows, the Court of Appeal accepted (given the ratio in Raymond) that the right of unimpeded access could be abrogated by a necessary implication arising from the words used in the relevant primary legislation. But the Court of Appeal held that the general words of section 47(1) of the Prison Act did not suffice on that basis. As it seems to me there is a question what is meant by 'necessary implication' in such a context; and I think it is the same question as what is meant by the requirement, which I have suggested would be mandatory if we are to have any conception of constitutional rights, for a specific permissive provision before a statute may be held to allow abrogation of a constitutional right by the executive. To this I shall return.

17. The next case was R v Secretary of State for the Home Department, ex parte Wynne [1992] QB 406. The Court of Appeal was there concerned with the circumstances in which prison authorities might be obliged to secure the attendance of a prisoner at court in order to prosecute a case brought by him. The court dismissed the prisoner's appeal against the decision of the Divisional Court, though the reasoning of their Lordship differed. However they granted leave to appeal to the House of Lords. The prisoner had refused to make a formal application to the prison governor for his production at court as was required by section 29(1) of the Criminal Justice Act 1961. The imposition of such a requirement could not conceivably be said to infringe any fundamental right, and in any case it was imposed by main legislation. Accordingly, as their Lordships' House found, the application was doomed to failure. Indeed their Lordships considered that leave should not have been granted by the Court of Appeal (see per Lord Goff of Chieveley at [1993] 1 AER 574, 578b, with whom their other Lordships agreed). The case is thus of interest, with respect, only for the competing obiter dicta in the Court of Appeal upon the merits of requiring the prisoner, had he made his formal application to be conveyed to court, also to pay or contribute to the cost of taking him there. Lord Donaldson MR referred to Article 6 of the ECHR at 418E-F and indicated his view at 423H that "the minister should be very careful to ensure that the sum payable is one which is reasonable in the light of the prisoner's ability to pay". He said at 424A: "There can be no balancing of the interests of justice against the cost to public funds." Staughton and McCowan LJJ expressed themselves differently, essentially holding that the minister enjoyed a discretion as to the conditions under which a prisoner should be produced at court in order to conduct litigation in person. In the House of Lords, Lord Goff, while holding that the appeal was inopportune, considered that such problems as arose in connection with the production of prisoner litigants at court might be resolved by various practical means. With deference I do not consider that this case offers any substantial assistance upon the issues which we must decide. All that in truth emerges from it is that a prisoner has no settled, certainly no absolute, right to be brought to court for the purpose of conducting litigation in person; so much, I apprehend, Mr Duffy would not deny.

18. Mr Duffy next went back in time to the case of In re Boaler [1915] 1 KB 21, a decision of the Court of Appeal which was concerned with the then statutory provisions relating to vexatious litigants. The question was whether a person prohibited under the Act from instituting 'legal proceedings' was thereby prevented from bringing criminal proceedings by laying an information before a magistrate. The court held by a majority that he was not. I need, I think, cite only two short passages at pp 36-37 from the judgment of Scrutton J (as he then was) who was in the majority:

19. Mr Richards says that this case was about an ambiguity in the statute, as to the meaning of the term "legal proceedings"; and he cited passages from their Lordships' judgments to show that that was the basis upon which the court proceeded. I agree, for it is quite plain, that the court was concerned with what meaning should be accorded to "legal proceedings", there being more than one available. But the principle which the case vouchsafes is that the citizen's right of access to the courts is not to be cut down save by clear words. And this, again, seems to me to engage the question what is the quality, required by the common law, which a statutory provision must possess if its lawful effect is to abrogate the right to justice.

20. Mr Duffy referred next to the recent decision of the Court of Appeal in R v The Radio Authority, ex parte Bull , of which a transcript has been provided to us. The question was whether on the proper construction of section 92(2)(a)(1) of the Broadcasting Act 1990 the British section of Amnesty International had been lawfully prohibited by the relevant regulatory authority from advertising on the radio. The subsection prohibits such advertisement where the potential advertiser's objects are "wholly or mainly of a political nature". Lord Woolf MR held (p.17E) that the statutory provision constituted a restriction on freedom of communication, and referred to the ECHR; and (at 18B) he said that the words "wholly or mainly" should be construed restrictively, so as only to apply the statutory restriction "to bodies whose objects are substantially or primarily political". In the event the court dismissed Amnesty's appeal.

21. This case is some grist to Mr Duffy's mill, but Mr Richards would have no difficulty in accepting the broad proposition that a statute which interferes with freedom of expression is to be strictly construed. I doubt whether, for present purposes, this authority has any longer reach.

22. We were referred also to certain passages in de Smith Woolf and Jowell on "Judicial Review of Administrative Action", which is of course the recently published 5th edition of Professor de Smith's distinguished book, edited and to a considerable extent re-written by Lord Woolf and Professor Jowell; though it certainly retains the qualities of de Smith's original work. The authors say at paragraph 5-017:

23. Mr Duffy relied also on the jurisprudence of the ECHR, and referred to Golder v United Kingdom 1 EHRR 524, Airey v Ireland 2 EHRR 305, Andreas and Paraskevoula Andronicou and Gregoris and Yiolanda Constantinou v Cyprus (a decision of the Commission, of which a print was provided), and The Republic of Ireland v The United Kingdom 2 EHRR 25. For my part I do not find it necessary to refer to these cases, since I consider that the issue may correctly be resolved by reference to the substance of our domestic law. As regards the ECHR jurisprudence I will say only that, as it seems to me, the common law provides no lesser protection of the right of access to the Queen's courts than might be vindicated in Strasbourg. That is, if I may say so, unsurprising. The House of Lords has held the same to be true in relation to the right of freedom of expression: Attorney-General v Guardian [1987] 1 WLR 1248 per Lord Templeman at 1296F-1297F, Attorney-General v Guardian (No 2) [1990] 1 AC 109 per Lord Goff at 283-4, and Derbyshire County Court v The Times [1993] AC 534 per Lord Keith of Kinkel at 551F-G. I cannot think that the right of access to justice is in some way a lesser right than that of free expression; the circumstances in which free speech might justifiably be curtailed in my view run wider than any in which the citizen might properly be prevented by the State from seeking redress from the Queen's courts. Indeed, the right to a fair trial, which of necessity imports the right of access to the court, is as near to an absolute right as any which I can envisage.

24. It seems to me, from all the authorities to which I have referred, that the common law has clearly given special weight to the citizens's right of access to the courts. It has been described as a constitutional right, though the cases do not explain what that means. In this whole argument, nothing to my mind has been shown to displace the proposition that the executive cannot in law abrogate the right of access to justice, unless it is specifically so permitted by Parliament; and this is the meaning of the constitutional right. But I must explain, as I have indicated I would, what in my view the law requires by such a permission. A statute may give the permission expressly; in that case it would provide in terms that in defined circumstances the citizen may not enter the court door. In Leech the Court of Appeal accepted, as in its view the ratio of their Lordships' decision in Raymond vouchsafed, that it could also be done by necessary implication. However for my part I find great difficulty in conceiving a form of words capable of making it plain beyond doubt to the statute's reader that the provision in question prevents him from going to court (for that is what would be required), save in a case where that is expressly stated. The class of cases where it could be done by necessary implication is, I venture to think, a class with no members.

25. It follows that I would reject Mr Richards' submission that there is no vires argument here, and that the only question is whether the 1996 Order transgresses Wednesbury bounds. Section 130 contains nothing to alert the reader to any possibility that fees might be imposed in circumstances such as to deny absolutely the citizen's right of access to the Queen's courts. Mr Richards says that the 1996 Order contains or implies no such absolute bar; other factors may bear on the impecunious litigant's position, in particular the possibility of assistance by way of legal aid, which, if granted, pays the court fees. But there is no legal aid for a defamation plaintiff nor, in effect, from many others affected by the 1996 Order.

26. Mr Richards submitted that it was for the Lord Chancellor's discretion to decide what litigation should be supported by taxpayers' money and what should not. As regards the expenses of legal representation, I am sure that is right. Payment out of legal aid of lawyers' fees to conduct litigation is a subsidy by the State which in general is well within the power of the executive, subject to the relevant main legislation, to regulate. But the impost of court fees is, to my mind, subject to wholly different considerations. They are the cost of going to court at all , lawyers or no lawyers. They are not at the choice of the litigant, who may by contrast choose how much to spend on his lawyers.

27. In my judgment the 1996 Order's effect is to bar absolutely many persons from seeking justice from the courts. Mr Richards' elegant and economical argument contains an unspoken premise. It is that the common law affords no special status whatever to the citizen's right of access to justice. He says that the statute's words are unambiguous, are amply wide enough to allow what has been done, and that there is no available Wednesbury complaint. That submission would be good in a context which does not touch fundamental constitutional rights. But I do not think that it can run here. Access to the courts is a constitutional right; it can only be denied by the government if it persuades Parliament to pass legislation which specifically - in effect by express provision - permits the executive to turn people away from the court door. That has not been done in this case.

28. Mr Duffy advanced certain further arguments. I do not think it necessary to go into them.

29. I would allow this application and grant the relief sought, which is a declaration that Article 3 of the 1996 Order is unlawful.

30. LORD JUSTICE ROSE: I agree. By section 130 of the Supreme Court Act 1981, Parliament conferred on the Lord Chancellor a simple power, subject to the concurrence of the Treasury and judicial Heads of Division, to prescribe Supreme Court fees.

31. There is nothing in the section or elsewhere to suggest that Parliament contemplated, still less conferred, a power for the Lord Chancellor to prescribe fees so as totally to preclude the poor from access to the courts. Clear legislation would in my view be necessary to confer such a power and there is none.

32. Accordingly, this application succeeds and we shall make the declaration sought.

33. MR DUFFY: My Lords, I apply for costs?

34. MR RICHARDS: My Lords, I cannot resist the application.

35. MR RICHARDS: My Lords, I have an application for leave to appeal. I think I need to say this in support, that this is a case of obvious importance giving rise to a major question of constitutional principles as to the nature of the rights, which are in issue here, and the question of whether, in what circumstances, provisions of this kind are subject to an implied limitation.

36. MR DUFFY: My Lords, on the issue of whether leave to appeal should be granted, that is, of course, a matter for your Lordships. In several cases of high public interest and importance, but where the court was clear as to the conclusion, leave has been denied. I mention, just by way of example, the Pergau Dam case and the contrary Coventry Airport and Dover Harbour Board cases. We acknowledge that this is the first time this particular statutory power has to be dealt with and, therefore, leave the matter in your Lordships' discretion.

37. MR JUSTICE LAWS: If you had lost, nobody's feet would have touched the ground before you would have been asking for leave to appeal.

38. MR DUFFY: My Lords, our concern is, if your Lordships are minded to grant leave, that the position of Mr Witham ought to be protected. I understand from my learned friend that there will be, in the interim, no obstacle to him issuing his writ. The time is to expire very shortly on the 15th. Should he, having issued the writ, though notwithstanding the further fees to which he may become liable (and those are dealt with in Mr Grosz' affidavit at pages 19 and 20), and the only question about legal aid not being continued, we would ask that if leave is granted it would be on the condition that the Respondent should not seek costs but, indeed, should bear the costs if legal aid is not available to allow Mr Witham's argument to be put forward.

39. MR RICHARDS: There are two points, my Lords. First, with regards the effect of the Order, my understanding is that your Lordships have granted a declaration that the Order is unlawful. It is equivalent to certiorari. Therefore, fees cannot now be charged in the circumstances that are defined in the original 1980 Order. That simply defines ----

40. LORD JUSTICE ROSE: It defines Article 5(1) and (3).

41. MR RICHARDS: Yes, so far as concerns the provisions relevant to this case. As regards to costs of the appeal, in my submission it is not appropriate to impose a condition as to costs with a grant of leave. Costs will be in the discretion of the Court of Appeal at the end of the day. In my submission, that is the right basis for the matter to be considered in the light of the circumstances.

42. MR DUFFY: My Lords, there is nothing further.

43. LORD JUSTICE ROSE: We shall refuse leave to appeal.

44. MR DUFFY: My Lords, finally, may I ask for a certificate of legal aid taxation?

45. LORD JUSTICE ROSE: I would have thought you had it without us saying anything. If we need to say anything you may have it.

46. MR DUFFY: My Lords, may I, on behalf Mr Witham, thank your Lordships for the speed with which you dealt with this matter.

47. MR JUSTICE LAWS: As my Lord has said, there are copies available. There are some typing errors for which I apologise.