Wrongfooting the Lord Chancellor: Access to Justice in the High Court

Date01 March 1998
Published date01 March 1998
AuthorRosalind English
Wrongfooting the Lord Chancellor: Access to Justice in
the High Court
Rosalind English*
In 1997, John Witham tried to commence proceedings in malicious falsehood and
defamation as a litigant in person in the High Court.1Legal aid is not available for
actions wholly or partly in respect of defamation. Had he sought to bring his action
before 15 January, he would have been exempted from paying the full writ issue
fee, as he was on income support. As it was, new regulations which came into force
on that date had removed the Lord Chancellor’s power to remit or exempt court
fees in cases of financial hardship and had substantially increased the writ issue
fee. Witham took successful judicial review proceedings challenging these
regulations on the grounds that they were ultra vires and unreasonable.
The case features several issues of increasing predominance in judicial review:
the rise of rights jurisprudence in administrative law; the application of the ultra
vires principle to these ‘constitutional rights’; the extension of justiciability where
access to justice is at stake; and public interest intervention by pressure groups in
the guise of expert evidence.
The grounds for judicial review
The previous Lord Chancellor had the power under the Supreme Court Act 1981 to
increase court fees. On the face of it, section 130 gave him a broad discretion:
(1) The Lord Chancellor may by order under this section prescribe the fees to be taken in the
Supreme Court . . .
Under this power he not only increased the writ issue fee for unliquidated claims
from £120 to £500 but also excluded provisions for exemption from and remission
of fees in the case of non-legally aided persons in receipt of income support, or in
other cases where payment would involve undue financial hardship in exceptional
circumstances. It was this part of the new regulations2which formed the subject of
the judicial review challenge on the grounds of illegality and irrationality.
Since Laws J found for the applicant on the ultra vires argument he did not need
to consider whether the Lord Chancellor had also acted unreasonably. But it was
said that by not taking into account the unavailability of legal aid in defamation
actions, the Lord Chancellor had reached an irrational decision when he removed
the exemption and reduction provisions in the new regulations. His failure to
observe the statutory right of a person to act as a litigant in person3was also
ßThe Modern Law Review Limited 1998 (MLR 61:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 245
*Merton College, Oxford.
1Regina vthe Lord Chancellor, ex parte Witham [1997] 2 All ER 779.
3 Order 5, Rule 6 Rules of the Supreme Court 1965, preserved by section 28 of the Courts and Legal
Services Act 1990.

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