In a recent High Court decision, a Court upheld the lower Court’s decision to refuse to issue a Claimant’s claim due to the fact that they underpaid the Court issue fee by £24.
In Peterson v Howard de Walden Estates  EWHC 929 (KB), the Claimant had sought to issue a claim on 22 March 2022 at the Central London County Court, shortly before the expiry of limitation for the claim. The Claimant’s solicitors attended the Court office to issue the claim, but due to construction work at the Court building were unable to attend the normal issue desk, and instead left the claim form at the counter with a covering letter, instructing the Court office to deduct the issue fee of £308 from their account.
Unfortunately for the solicitors, they had not known that the issue fee had increased to £332 the previous September. The Court returned the claim form in the post by 30 March 2022 and notified the solicitors of the correct fee. However, by this time, limitation to issue the claim had passed.
The solicitors therefore issued an application to the Court pursuant to both CPR Part 3.9 (relief from sanctions) and CPR 3.10 (where the Court has a general power to rectify matters where there has been an error of procedure).
At the first hearing, the parties conceded that CPR 3.9 was not relevant as there had been no sanctions from which relief was being sought.
In relation to CPR 3.10, the Recorder determined that he did not have the jurisdiction to make the order requested. This was because there had not been any failure by the Court to comply with a rule or practice direction and indeed, the Court were not at fault at all. They had been quite entitled to refuse to issue the claim due to the incorrect issue fee being paid. Further, the Court confirmed that CPR 3.10 and the Court’s case management powers only came into force once proceedings had been commenced and this would only start once the claim had been issued. As no claim was issued in this case, CPR 3.10 had not been invoked.
The Claimant appealed but the High Court rejected the appeal, on similar grounds to that of the Recorder in the lower Court. The High Court confirmed that the correct Court fees were a matter of public record, and the rise in the issue fee had been known for around six months prior to the attempt to issue the present claim. Further, whilst the Claimant had been entitled to issue the claim at the last possible opportunity, if they had perhaps sought to issue a week earlier, they would not have encountered the same problem as they may have had time to remedy the defective issue fee before limitation expired.
The High Court confirmed that ‘an error of procedure does not include a failure to pay a Court fee needed to initiate proceedings where the requirement to pay that fee does not derive from the Civil Procedure Rules or any other rule of direction…’
They further commented: ‘The error was not a failure to comply with some requirement laid down in the CPR. Instead it was a failure to take a step which the Lord Chancellor had required to be taken before the court staff would issue a claim form’ (namely pay the correct fee).
Whilst the decision may appear harsh on the Claimant, the Court determined that if they had allowed the claim to be issued, this would have prejudiced the defendant, through no fault of their own.
A number of lessons can be taken from the Court’s decision. Always check (and double-check) the issue fee required to issue the claim, particularly if you are close to limitation. If in doubt, review the latest version of the EX50 (Fees in the Civil and Family Courts) guidance on Court fees, which is maintained on the government’s website. If further in doubt, contact the Court where you are intending to issue the claim to check the correct issue fee.
On the basis of the above, the Court have determined that their case management powers, including applications for relief from sanctions and applications to remedy an error of procedure, will only apply once proceedings have been commenced, which means once a claim has been issued.
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