I am grateful to Gerard McDermott QC for sending me details from the American Bar Association Journal of a £2.5 million case in Powhattan Circuit Court where a $2.5 million dollar action failed because the court fee was incorrect by $2. There is a danger in assuming that this danger is confined to our American cousins. It could easily happen here.
REMEMBER THAT IF THE COURT FEE IS NOT PAID THEN THE ACTION IS NOT ISSUED
An earlier post in 2013 looked at the case of Page -v- Hewetts  EWHC 2845 (Ch) where it was held that a failure to pay the court fee meant proceedings were not issued and the action was not outside the limitation period.
In the Page case the fee was not paid at all. It is an open question whether payment of an incorrect fee means that proceedings were not “issued”. The judgment refers to the “appropriate fee”
- It is made plain in the judgment of Lewison LJ in the Court of Appeal (see especially paragraph 38) that it was, at this full trial of the preliminary issue, for the Claimants to establish, on the balance of probabilities, that they had done all that was required of them in terms of delivering to the court office the Claim Form, accompanied by a request for issue and the appropriate fee.
SO A TIMELY REMINDER: CHECK & DOUBLE CHECK YOU ARE SENDING THE RIGHT FEE: PARTICULARLY IF YOU ARE RUNNING UP TO LIMITATION
The claimant failed in Page. Not all claimants can rely on section 33. These may not be circumstances where a court can grant relief from sanctions (the proceedings having not been commenced).