Lack of response for fee payment
14. Mr L complaints that HMCTS failed to respond to his questions about whether he could pay the court fee after the deadline. He told us he asked many times but never got a response.
15. We can see that this point has not been addressed in HMCTS’s complaint responses. We asked it why it did not respond to Mr L’s question. It told us that on 21 November 2022 the claimants had also filed a contempt of court application against Mr L. The case was re-listed before the judge on 16 January 2023. It said the judge was made aware of both applications even though one (Mr L’s) had not been sealed. It said Mr L sent many emails to the court and had the application been passed to the fees office as it should have been, he could have paid the fee at any time. It said that as the judge was aware of his application, this did not affect the hearing.
16. We can see from Mr L’s complaints alone, that he specifically asked HMCTS if he could pay the court fee after the deadline. But, in both the stage one (7 December 2022) and stage two (13 December 2022) HMCTS complaint responses, it did not answer this question and instead said it was Mr L’s responsibility to pay the fee. It is not until its final complaint response that it acknowledged it should have contacted him to take the court fee payment. But, it still did not address whether he could have made the payment after the deadline. We also recognise that HMCTS’s final complaint response was sent after the case had been settled.
17. Our Principles of Good Administration say that organisations should be customer focused. This means they should deal with people helpfully, quickly and sensitively, bearing in mind their individual circumstances. They should respond to customers’ needs flexibly including, where appropriate, co-ordinating a response with other service providers.
18. We appreciate that Mr L sent many emails to the court, but, in our view this is not a reasonable explanation for not responding to his questions. His contact shows how important it was to him for his case to be heard by a judge. Not getting an answer to his question represents a lost opportunity to him. HMCTS’s service fell short of our Principles and this is a failing. We will consider the impact later in this report.
Court fee
19. Mr L complains that HMCTS failed to contact him as requested to take payment for his contempt of court application. This meant that court costs of about £8,500 were awarded against him.
20. In its letter dated 31 January 2023, HMCTS says:
‘I’ve checked all the available information and it’s clear from the form you submitted that the court ought to have contacted you. This is an unacceptable oversight and I’m very sorry for the distress you’ve experienced. I’m also sorry that in our previous responses we gave you incorrect information when we said it was your responsibility to contact us to pay the fee. I would like to offer you a goodwill (ex gratia) payment of £250 in recognition of our error and the frustration and inconvenience it has caused you.’
21. It is clear from the evidence that HMCTS accepts its actions were wrong. It should have contacted Mr L to take the court fee and it did not do this. We will look at how this affected Mr L.
22. Based on the evidence we have seen in the court orders, the judge’s decision to award costs against Mr L was based on the fact that he had not paid the relevant fee for the hearing. It seems that Mr L had to defend himself against the cost order as a direct result of HMCTS’ fault, rather than any other factors.
23. Mr L told us that throughout his previous court case and his contempt of court application, he represented himself and planned to continue doing this had the failing not happened. Because of the amount of costs awarded against him and the seriousness of the situation he now found himself in, he felt he had no option but to get legal help to defend them. He told us that what he wanted was for his contempt of court application to be heard, regardless of the outcome, but this did not happen because of HMCTS’s failing.
24. Mr L told us his barrister was preparing to go to court, but, he got in touch with the claimant to try and explore the possibility of a settlement which they agreed to. At a hearing on 16 January 2023, the settlement was reached. We can see from the consent order that the settlement included the claimants paying £1,000 to charity, Mr L complying with the court order from the earlier case and no costs were to be paid by him for the contempt of court application. He says he does not believe he would have reached this settlement without legal help.
25. We have considered everything Mr L told us about his reasons for getting legal assistance. It is clear he was faced with a large court order that he felt was unfair and the only way to challenge this was in court. It is our view that this was a reasonable decision for Mr L to make, given the situation he found himself in through no fault of his own. We cannot say what the outcome of the hearing would have been had it gone ahead. We are persuaded that Mr L would not have needed to get legal advice if the costs had not been awarded against him.
26. Mr L told us that as well as being affected financially by the legal fees, he also experienced stress and anxiety. He told us that during this time his late wife had advanced breast cancer and he had to take time away from her care to defend a costs order caused by HMCTS’s error.
27. Our Principles for Remedy say, ‘Where maladministration [fault] or poor service has led to injustice or hardship, public bodies should try to offer a remedy that returns the complainant to the position they would have been in otherwise. If that is not possible, the remedy should compensate them appropriately’. Our Principles also say, ‘The public body should consider how the circumstances of the case have affected the complainant in all ways. Even if an offer of remedy is not legally required, the public body should consider whether it has acted fairly and how its decisions have affected the complainant’.
28. HMCTS has already offered Mr L an ex-gratia payment of £250 in recognition of its error and the frustration and inconvenience caused to him. But, we do not think this is in line with our Principles for Remedy because it does not put Mr L back in the position he would have been in had the error not happened. We also do not think the payment offered fully recognises the stress Mr L felt at an already difficult time. We have made recommendations to put this right for Mr L by increasing the ex-gratia payment and to also reimburse his legal fees.
29. Mr L wants a reimbursement of his first court application fee because he does not feel he received the service he paid for. He told us the first hearing was only paused due to a technicality and once the further fee was paid, the hearing was to continue.
30. Court fees relate to the administration and costs of HMCTS processing the application and arranging a hearing. Mr L paid his first court fee and a hearing was listed for 21 October 2022. Our decision is he received the service he paid for. In that hearing the judge ordered that he submit another application and pay another fee, this is where the process has fallen down. We realise Mr L’s view on this and we understand why he feels the first court fee should be refunded. For the reasons given, we do not agree with Mr L on this point and we are not recommending the court fee is reimbursed.