FAILURE TO PAY THE CORRECT COURT FEE DOES NOT LEAD TO STRIKING OUT OF AN ACTION

The decision in  Lewis -v- Ward Hadaway [2015] EWHC 3503 (Ch)  has led to considerable interest (and it has to be said) some hyperbole and opportunistic applications. The case is often misunderstood. In Bhatti -v- Ashghar [2016] EWHC 1049 (QB) Mr Justice Warby refused to strike out a case where the incorrect court fee had been paid. Issuing with an incorrect fee was held not to be an abuse of process. If the defendant wanted to rely on limitation then it had to be pleaded and the matter tested at trial in order that the court could assess whether the claimant had a response both to the court fees argument and the issues in relation to limitation generally.

” [defendant’s counsel] has not pressed the allegation of abuse of process. That was an appropriate recognition of the fact that, in the light of the authorities on which he himself relies in support of his limitation argument, the abuse of process line had no realistic prospect of success”

THE CASE

The claimants claimed damages of some £1 million following an abortive real estate transaction. Shortly before the trial date the defendant made an application to strike out. Shortly before the application it became clear that the defendant were making an allegation that the action was statute barred on the grounds that the correct court fee had not been paid.  The defendant had not, however, pleaded a limitation defence.

THE ARGUMENT THAT A FAILURE TO PAY THE CORRECT FEE WAS AN “ABUSE OF PROCESS”

It was recognised that an argument that failure to pay the correct fees was not, in itself, an abuse of process.

19. Before me Mr Brittain has persisted in the allegation of deliberate understatement of the claim that was made by the first defendant in his witness statement. But he has not pressed the allegation of abuse of process. That was an appropriate recognition of the fact that, in the light of the authorities on which he himself relies in support of his limitation argument, the abuse of process line had no realistic prospect of success. I therefore need only address the limitation argument.

THE LIMITATION ARGUMENT

The judge considered that an underpayment had taken place and considered both the rules and previous case law in detail.
“34. These authorities appear to identify a clear principle by which the court is to determine whether a claim has been “brought” for the purposes of stopping the limitation from running, the principle being that a claim is only brought for those purposes when the party concerned has done all that is in his power or to set the wheels of justice in motion. If he has done that, then the risk of any failing on the part of the court is cast upon the court and the opposite party. Doing all that is in one’s power often, and perhaps ordinarily, involves proffering the correct fee to the court office at the same time as presenting the claim form and the applicable Particulars of Claim. In Page and in Lewis, a failure to do that led to the failure of the claim. It is however possible in principle that a failing on the part of the court at that stage of the process might lead to the claim being brought for limitation purposes, even though the correct fee was not paid. If, for instance, the court assumed the burden of calculating the appropriate fee and made an error, for which the claimant was in no way to blame it might, in appropriate circumstances, be said that the claimant had done all that was in his power or, to adopt the words of Mr Male QC, all that he reasonably could do to bring the matter before the court in the appropriate way.
35. I am satisfied that Mr Brittain is correct to submit that in each of the present cases there was underpayment of the fees due on issue, for these reasons. First, the assessment of what was a correct fee must be based on the documents presented to the court at the time of issue, that is to say the claim form and, if it is available, Particulars of Claim. One must take the claim to be as stated in those documents. Secondly, the money claim for this purpose must include any interest on a claim for a specified sum, because the Statutory Instrument so provides. Therefore, the interest on the liquidated claims in these cases must be included. Thirdly, the inclusion of a non-money claim, even one as generalised as in this case, for “further or other relief” of an unspecified nature, appears to me to trigger an obligation to pay the £480 provided for by paragraph 1.5 of the schedule. In the Aslam claim therefore, the fee should have reflected the liquidated claim, the interest on that claim, and the unliquidated claim. The aggregate of these, as pleaded, plainly exceeded £150,000, so the additional £200 should have been paid. Since further and other relief was claimed another £480 should have been paid. I accept therefore that there was an underpayment of about £680. In the Rashid claim a further £480 should have been paid, because of the claim for further or other relief.
36. I am also satisfied that the limitation period for the pleaded claims in contract has expired. Mr Challenger initially conceded this. He then rowed back somewhat, but in the end I am satisfied that the causes of action alleged for breach of contract had arisen (subject to any applicable provisions of the Limitation Act) by the time of the last payment in each case, which was February and July of 2009, or in any event more than six years ago. The breaches alleged are failure to pass on to the developers “forthwith”, monies paid over by the claimants for that purpose, and the failure to acquire the properties in question.
37. I do not however propose to grant summary judgment on either of the contract claims, for these reasons: (1) the limitation period has never been pleaded; (2) this basis for seeking summary judgment was not explained in the application notice of 10th February; (3) nor was it raised in the defendant’s evidence served on 3 rd March 2016, or at least not in any clear way; (4) it was first raised in a clear and coherent way in the skeleton argument for this application, which I am told was first served shortly before the hearing before the Master; (5) Mr Brittain has been unable to offer any adequate justification or excuse for the fact that the point has been raised for the first time at such a late stage; in this context I note that the Court of Appeal decision in Page dates back to 2012; (6) in all the circumstances I do not consider that the claimants have had a full, fair and reasonable opportunity to assess and canvass the issues arising from the argument advanced; I recall that Mr Challenger had to ask for copies of the authorities relied on as the argument was proceeding this morning; (7) I bear in mind also that the limitation argument is not put forward as a complete answer of the claims but only as an answer to the claims in contract. In all these circumstances I consider there are compelling reasons why the issue of limitation should be addressed at trial and not now.
38. There are in principle two ways in which the claimants could address the matter at trial in a better way than has been possible today. First, they could do so factually, by addressing the factual issue of whether they did everything in their power, or everything that they reasonably could, to issue proceedings in the proper way. In the course of argument Mr Challenger asserted that what in fact happened was that the necessary formal documents were taken to court, accompanied by a blank cheque, and that the assistance of the court was sought in order to identify what the appropriate fee sum was. There is no evidence about that before the court today, and it would be inappropriate to proceed on that basis. But in substance Mr Challenger was seeking an adjournment to enable that issue of fact to be dealt with. As I have indicated, in principle it seems to me still open to the court to conclude that an error of this kind does not lead to the conclusion that the action has not been brought for Limitation Act purposes. It might be argued that there was a proffer of the correct fee. Against the background I have set out, it seems to me that in this case I ought to make provision enabling the claimants, if so advised, to adduce evidence on that factual issue.
39. Secondly, the matter could be addressed legally, by considering the issues raised by the authorities relied on in greater depth than has been possible at this hearing. I raised in the course of argument the possibility that there might be some room for the application of the provisions of s.32 of the Limitation Act 1980. It is the claimants’ case that they did not discover the wrongdoing of which they now complain until some time after it was committed. I have not begun to explore with counsel whether there is any merit at all in these lines of thought but the fact remains that, in everyday language, the claimants have to some extent been “bounced” by this unpleaded point.
40. In the light of those considerations, subject to argument, I propose to give directions allowing the defendants to amend to plead limitation, with the claimants to have permission to make consequential amendments to their reply shortly after that. I propose to give permission to the claimants to serve a witness statement or statements dealing with the factual issues that I have identified and, if amendments are made, any disclosure should be given simultaneously with the service of the witness statement(s)”

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