The importance of paying the correct issue fee

In what appears to be the first High Court authority on this point, the Court confirmed in Peterson v Howard de Walden Estates [2023] EWHC 929 (KB) that a failure to pay the correct issue fee was not an error of procedure within the scope of CPR 3.10 but rather an error for which the court had no power to remedy.  Consequently the claim was a nullity and further proceedings were time-barred.

In this case, the claimants had failed to pay the correct issue fee and the court declined to issue the proceedings.  The Claimant did not learn of the position until the statutory deadline for the issuing of proceedings in the case had passed.

It was determined that CPR 3.10 was not concerned with matters occurring before the commencement of proceedings (although it can be used to remedy defects of form in proceedings once commenced) and that powers to remedy under CPR 3.10 were only concerned with events after proceedings had been commenced.  The court considered that this view was supported by CPR 3.10(a) which refers to the invalidity or otherwise of "any step taken in the proceedings" (emphasis added).  Whilst it was considered that CPR 3.10 should be read widely, it did not extend to a claimant’s error failing to pay a court fee derived from a fees order made by the Lord Chancellor, to initiate proceedings rather than a rule under the CPR and that an error of procedure for the purposes of CPR 3.10 should be limited to an error in procedure established by the CPR (or potentially by equivalent procedural provision).

Notwithstanding this, the Court decided that even if there was discretion, it was not appropriate to exercise it in this case given the claimant had sought to issue at the last moment and relied on an outdated fee scale.

The case is a stark reminder to ensure that the correct issue fee is paid when issuing a claim and, where possible, for a claimant to not leave the issuing of claim to the eleventh hour in order to ensure that any problems can be dealt with in a timely way without risk of such a claim being time-barred.

Posted on 06/06/2023 by Ortolan

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