Payment of the incorrect court fee; does it give rise to a limitation defence? (Answer: almost certainly not)

Wells v Wood, Lincoln County Court, HHJ Godsmark QC 9 December 2016, 2016 WL 07330089

 

Introduction

In the professional negligence case of Lewis v Ward Hadaway [2015] EWHC 3503 (Ch); [2016] 4 W.L.R. 6 several claims were held to be statute barred as a result of underpayment of court fees.

Lewis has generated no small amount of enthusiasm on the defendant side and anxiety on the claimant side.  These reactions have proved misplaced.

Subsequent reported attempts to deploy Lewis have not been successful.  The most recent of these, Wells v Wood, makes clear that the scope for its application in personal injury cases is vanishingly small.

Lewis

In this case the claimants (as in their solicitors) delivered the claim forms to the court just before the expiration of the limitation period.  However, they deliberately understated the value on the claim forms in order to defer paying the full court fee (which, had they decided not to serve, would never have been paid).  They subsequently amended shortly before service to reflect the claims’ true value, paying the appropriate fee at that later time.

Mr John Male QC held that, although this conduct constituted an abuse of process, it would be disproportionate to strike the claims out on that basis.  This was notwithstanding that the same solicitors had been subject to heavy criticism by other judges in earlier cases for precisely the same practice.

However, the same discreditable behaviour led to some of the claims being subject to summary judgment on the basis that the failure to pay the appropriate fee meant that they had not been brought within the limitation period.

The distinction between proceedings being “brought” rather than “issued” is important.  The issuing of proceedings is an act of the court.  Bringing proceedings is an act of the claimant preparatory to the court issuing them.  Proceedings can therefore be brought on a date earlier than that upon which they are issued.  See CPR PD 7A 5.1:

5.1 Proceedings are started when the court issues a claim form at the request of the claimant (see rule 7.2) but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is ‘brought’ for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date.

The general effect of this was confirmed in Barnes v St Helens MBC [2006] EWCA Civ 1372; [2007] 1 W.L.R. 879.  The Court of Appeal held therein that where a claimant took the steps required to enable the proceedings to be started that was sufficient.  It reasoned that expiry of the limitation period was fixed by reference to something that the claimant had to do, rather than something which someone else such as the court has to do.  Once the claimant had taken all reasonable steps to set the process in motion, the risk of any delay was transferred to the court and not visited upon the claimant.  Therefore, if a claimant established that the claim form was delivered in due time to the court office, accompanied by a request to issue and the appropriate fee, that was sufficient to stop the limitation clock running.

In Lewis it was held that, although the claim form was delivered in due time to the court office, accompanied by a request to issue, it was not accompanied by the appropriate fee. Paying “the appropriate fee” did not cover the payment of a fee in circumstances where the act of payment was an abuse of process.  This followed Page v Hewetts Solicitors [2013] EWHC 2845 (Ch); [2014] W.T.L.R. 479 where it was held that the underpayment of the court fee due to inadvertent miscalculation precluded a claimant from arguing that proceedings were brought before they were issued. A fortiori, by adopting a manner of fee payment which was an abuse the claimants had not done all that they reasonably could do to bring the matter before the court for its process to follow so that the claimants’ risk would cease.   Therefore, those claims in which proceedings were not issued before limitation expired were statute barred notwithstanding that the claim forms were delivered to court before the expiry date.

Subsequent Cases

The first reported case in which Lewis was deployed, Bhatti v Asghar [2016] EWHC 1049 (QB); [2016] 3 Costs LR 493, was inconclusive. The claimant brought claims for breach of trust, breach of contract and misrepresentation. The damages claimed were a little under £1 million.  Proceedings were issued close to the expiry of the limitation period for the breach of contract claims. The defendants applied for summary judgment or the striking out of the breach of contract claims but did not set out the basis upon which this was sought until 3 weeks after the application notice had been served.  This was only shortly before the hearing of the application, which was itself only a month before trial was due to be heard (and 18 months after proceedings were issued).

The basis for the applications, as eventually stated, was that the claimants had not paid the correct court fees, with the result that the action had not been properly brought and the limitation period for the breach of contract claims had expired.  They submitted that the first claimant should have paid an additional £680 and that the second claimant should have paid an additional £480.

Applying Page and Lewis, Warby J held that an action was only “brought” for the purposes of limitation where a claimant had done all it could to set the claim in motion, including paying the court fees. However, the Judge also noted that, in principle, a failure by the court itself could result in a claim being brought without the correct fee if court staff had made an incorrect calculation which was not the claimant’s fault; in that case the claimant would have done all it could reasonably do.

Because the defendants had not raised limitation in their Defence or in their written application, the claimants had not had the opportunity to address the issue of whether they had in fact done everything in their power to bring the claim and to produce any evidence to show that the miscalculation of court fees had been the court’s fault. Accordingly, the defendants’ application was dismissed and the question of whether the failure to pay the correct fees meant that proceedings had not been brought for the purposes of limitation was left for the trial.

There is no report of the subsequent trial.  The matter presumably settled.  Given that the earlier application was in fact dismissed, Warby J’s remarks as to the scope of Page and Lewis must be obiter.

An argument that an amendment to increase the value of the claim fell foul  of limitation in light of Lewis was dismissed in Glenluce Fishing Co Ltd v Watermota Ltd [2016] EWHC 1807 (TCC); [2016] 5 Costs L.RThe claimant issued professional negligence proceedings close to limitation.  The amount claimed was c.£69,000.  The court fee appropriate to that amount was paid.  The Particulars of Claim served after the expiry of limitation pleaded damages of £162,000.  The claimant sought permission to amend the value on the claim form to reflect this, volunteering to pay the increased fees.  The defendant resisted this amendment on the basis that the higher court fee should have been paid on issue and that as a result the amendment was outside the limitation period.

Mr Roger Ter Haar QC allowed the amendment.  He held that, insofar as the amendment produced a new claim, it was not a new cause of action but merely an alteration to an existing head of claim.  There was no prejudice to the defendant. There was no abuse of process.

The deputy judge’s reasoning is instructive.  At [39] he expressed scepticism at the result in Page, supra:

 Some might find it surprising that because of a bona fide error by the claimants’ solicitors as to the calculation of a court fee by a few hundred pounds, the claimants found themselves unable to pursue a claim which they contended was worth six figures, thus being thrown onto the tender mercies of a battle with their solicitors and the professional indemnity insurers behind those solicitors – this in a case where the whole basis of their claim was that they had been wrongly treated by their previous solicitors.

 In respect of limitation, he observed at [40] that “In the context of claims where the claimants had deliberately flouted the rules of court, that decision is understandable”.  However, he then said at [47] that Page, Lewis and Bhatti had:

… developed a somewhat hard edged principle as those cases have been applied at first instance whereby a claimant whose lawyers miscalculate the fee due, or absentmindedly pay the wrong amount, may cause a claimant to lose his or her right to bring an otherwise meritorious claim to court. At present it seems that the fact that the Defendant has suffered no prejudice and indeed may receive an unexpected benefit finds no place in the principle, and there appears to be no relief from sanction available from the court. It may be that as this principle is discussed and developed in future cases, those hard edges will be softened.

Unsurprisingly, then, he was unwilling to extend this principle to applications to amend.

An even more ambitious argument was advanced in Dixon v Radley House Partnership [2016] EWHC 2511 (TCC); [2017] C.P. Rep. 4.  It was argued here that, following Lewis, that an amendment to increase the value of the claim gave retrospective rise to a limitation defence even when proceedings had been issued in time.

Mr and Mrs Dixon brought professional negligence claims against the defendants.  They delivered claim forms seeking damages of less than £50,000 together with the appropriate court fee for that amount. The court issued proceedings.  In respect of some, but not all, of the causes of action limitation had not yet expired by the time of issue.  The Particulars of Claim subsequently served claimed increased damages.  The claimant sought permission to amend the value on the claim forms to reflect this, volunteering to pay the increased fees.  The defendants sought permission to amend their defences to plead limitation relying upon Lewis.

Stuart-Smith J refused permission on the basis that the proposed amended defences had no real prospect of success.   He observed at [24] that:

 Neither defendant alleges that the claimants’ behaviour was abusive procedural conduct. It follows that, if the defendants are right, any and every claimant who has issued proceedings without paying the fee that may retrospectively be seen to be appropriate for the claim it articulates, either at the time of issue of proceedings or subsequently, has failed to stop time running for the purposes of [limitation].

 He rejected the argument that the ambit of Lewis was so wide, or should be expanded.  He held at [33]:

 There is no statutory provision, either in the relevant orders or elsewhere, which either states or implies that issued proceedings are in any sense invalid or ineffective if the court issues them in the normal way but having accepted a fee which either is or becomes less, than the proper fee for the claim. It is, in my view, obvious that the payment of fees is primarily the concern of the court, which looks to the payment of fees as a source of revenue.

 He further held that the issue of proceedings stopped time for the purpose of limitation, and the fact that time could be stopped before then under CPR PD 7A 5.1 did not change that.  Page was authority for what a claimant had to do to stop time running before issue.  It was not authority for the proposition that proceedings being issued did not stop time running because the court fee was insufficient.

The deputy judge agreed with the result in Lewis on its specific facts, but held that it did “not say or imply that a non-abusive under-payment of a fee means that the issuing of the claim form by the court is ineffective to stop time running”.  Indeed, in Lewis those claims issued in time survived.  That distinction appeared not to have been taken by the claimants in Bhatti.

That left the causes of action in which proceedings were issued after the expiration of the limitation period.  The question here was whether they were nevertheless brought in time.  That turned on what constituted “an appropriate fee”

The deputy judge observed that Page did not address what would be the position if the relief sought was something other than a single identified liquidated sum (for which the correct court fee could not be disputed).  It was worth pausing to note that this is a point of distinction between Page and virtually all personal injury claims.

The deputy judge was not persuaded that the appropriate fee could not simply be determined by reference to what a claimant had offered and the court had accepted.  He held that the appropriate fee should be that as required by the relevant order (i.e. by reference to the value of the claim).  However, he held at [53-55] that this was not to be judged retrospectively:

 … the “appropriate fee” should be determined by reference to the terms of the claim form that is issued (or, if particulars of claim are issued simultaneously, the claim form and particulars of claim combined) …the fact that the quantum of a claim or claims is subsequently increased is irrelevant to the calculation of the fee payable on issue, assuming always that the claimant’s behaviour is not abusive … In the absence of abusive behaviour, it is not to be determined by reference to claims which are articulated later, whether or not the later claims are ones which the claimant hoped or even intended to bring later at the time of issuing proceedings.

The defendants arguments here therefore failed with a thump.  The judge confirmed in a subsequent costs ruling ([2016] EWHC 3485 (QB)) that he:

 … thought that the point being taken by the defendants on the application was thoroughly bad. Whether it is right to describe it as an unarguable [sic] when Miss Lee manfully argued it for most of the day is another question, but it seems to me that it was as close to being unarguable as one is likely to get

Wells

Mr Wells was injured in a road traffic accident on 27 September 2012. Proceedings were issued 5 September 2015, and thus in time. The claim form certified that the value of the claim was no more than £15,000. Accordingly, the correct fee was £675, but the claimant inadvertently paid only £455. The Particulars of Claim, which were served in December 2015, indicated that damages were expected to exceed £25,000.  The evidence was that this increase reflected difficulties in valuing the claim accurately.  The claimant obtained permission to amend the claim form’s value certificate to £25,000 with effect from 24 April 2016, and paid the increased court fee.  The defendants alleged that failure to pay the correct fee meant that the claim was statute barred even though it had been issued in time.

HHJ Godsmark QC rejected the defendants’ “far-reaching submission” on a number of grounds:

There was no satisfactory explanation for the status of the proceedings if that were the case. There was no suggestion that the claim was invalid for all purposes, only for the purposes of limitation. Thus the suggestion seemed to be that proceedings issued with the wrong court fee are valid unless limitation is pleaded, and therefore in effect voidable at the defendant’s option. This in turn gave rise to the position where there are multiple defendants some of whom plead limitation and others do not.

It was legitimate for a claimant deliberately to decide to limit the value of a claim: Khiaban v Beard [2003] EWCA Civ 358; [2003] 1 W.L.R. 1626 at [13].  If the position changed, on the defendants’ argument such a claimant would be barred from seeking to amend claim or vulnerable to an application to strike out.

The payment of the appropriate court fee was a matter between the paying party and HMCTS.  It was undesirable that it be subject to inter partes scrutiny, possibly at an advanced stage in the litigation or in cases where the fee has been remitted.

In some instances proceedings had to be issued before quantum and thus the correct fee could be ascertained.

CPR 7.2 was clear that proceedings started when the claim form was issued.  Neither the rule nor CPR PD 7A mentioned fees.

The rules expressly provided for sanctions for non-payment of fees in other circumstances.  In particular, CPR 3.7A provided that if a counterclaim was filed without the appropriate fee the filing remains effective but the counterclaim was vulnerable to being struck out if the notice requiring payment was not complied with.  It would be peculiar if non-payment of fees meant that limitation continued to run on a claim but not a counterclaim.

The judge therefore held at [30] that:

 … a claim form issued by a court and sealed is effective for limitation purposes regardless of the fee paid. Issue of the claim form marks the commencement of proceedings. Such an approach provides certainty as to the date of bringing of proceedings (subject to paragraph 5 of Practice Direction 7A). It also avoids what I regard to be the undesirable potential for satellite litigation surrounding what the appropriate fee would have been in particular circumstances around the time of issue.

 Review of authority did not lead to any different conclusion.  As the judge held at [54]:

In none of the cases has it been concluded that a claim form issued and sealed by the court (regardless of fee paid) is not effective to stop the limitation clock.

The authorities do point to what is necessary to bring a claim before the claim form is issued. What is required is that the Claimant do all in his power to set the wheels of justice in motion (including payment of the appropriate fee).

A claim may be struck out as an abuse of process if there is a deliberate decision to avoid paying the appropriate issue fee. However the finding of such an abuse of process and the courts discretionary reaction to it are quite separate from the limitation status of a claim.

He thus concluded that “the starting of a claim will incorporate the bringing of a claim. I do not accept that a claim form can be issued and thus the claim started without that claim also being brought [for the purposes of limitation].”

On the same basis he held that the underpayment of the court fee did not make any difference:

 In my judgment questions of payment of court fees are primarily between the paying party and HMCTS. Such matters may become of interest to other parties where it is alleged that there is abuse of process or in the particular circumstances of investigating whether a party has done all in its power to set the wheels of justice in motion so as to have brought the claim before issue. It may be that on having a shortfall in payment brought to his or her attention a Judge will stay a claim pending payment of the correct sum but that will be a judicial decision. Otherwise non-payment of the correct fee may well attract the operation of CPR 3.7 and 3.7A with notices being sent giving an opportunity to pay before being struck out.

 The judge further held that:

He was in any event bound by Dixon, which did not conflict with Page and Bhatti.

If he was wrong and there was a conflict, he preferred the reasoning in Dixon.

In any event, even if the claim had been time barred, it would have been equitable to disapply the limitation period pursuant to s33 Limitation Act 1980.

Discussion

It is clear from the above that it will only be in a truly exceptional personal injury case that payment of the incorrect court fee will give rise to a limitation defence. There are several reasons for this.

Firstly, the argument will only even potentially be available when the court has not issued proceedings within the limitation period.  It is thus limited to cases where the claim form is delivered to court before limitation expires but issued afterwards.  This will be a small cohort.

This will be so even if there has been a deliberate or otherwise abusive failure to pay the proper fee.  The egregious features in Lewis of deliberately adopting an unacceptable practice across many cases despite repeated previous judicial criticism are striking and exceptional.    Yet even there the result was only that some of the claims were struck out.  The abuse by itself was not sufficient.  Those claims that were issued in time survived.

Secondly, even in such cases a claimant will not always be precluded from relying on CPR PD 7A to contend that proceedings were brought before they were issued.  This will only be so where there is either abusive conduct or otherwise the fee paid is clearly too low at the time of issue.  That will only rarely be the case in claims for personal injury where damages are inevitably unliquidated and their level subject to dispute and change.   

Thirdly, absent abuse a claimant would often have a good (and in many instances unanswerable) case for relief under s33.   That is an important distinction with claims such as Page where the limitation period was strict and a miss was as good as a mile.  Moreover, even in a non-personal injury claim there might be an argument (not apparently explored in either Page or Lewis) for relief under CPR 3.9 and/or 3.10.

That is not to say that claimants and their advisers should be casual about paying the correct court fee.  It is always unwise needlessly to expose a claimant to a limitation defence, even a weak one.  In particular, when up against limitation, claimants should ensure that there is no disjunction between the court fee and the value on the claim form (and Particulars if issued at the same time).  It also needs to be borne in mind that “up against limitation” in this context means close enough the expiration of the limitation period that there is a risk that Court might not issue proceedings within it.  This needs to take account of the possibility of delays due to administrative failings, lack of resources, strikes and so forth.

That said, save in extreme and exceptional cases, defendants and their advisers would be better off not taking what would be a bad point.