THE DANGERS OF GETTING THE COURT FEES WRONG: IF THE FEES ARE NOT RIGHT – YOU HAVEN'T ISSUED
If proceedings are being issued at the last moment then it is imperative that the correct fee is lodged at court. A failure to send the correct fee will mean that proceedings are not properly issued. This post looks at the decision in Page –v- Hewetts on the question of issuing and paying the correct court fee and the burden of proof there is on a solicitor attempting to establish that proceedings have been sent to the court.
PAGE –v- HEWETTS
The decision in Page –v- Hewetts  EWHC 2845 is another decision in what appears to be an on-going legal saga. The action had been remitted to the Chancery Division by the Court of Appeal in order that there could be a factual analysis of whether the claim was brought within the six year limitation period. This included an analysis of whether the claim form had been sent, received and whether the appropriate fee was paid.
THE APPOPRIATE TEST
The claimant argued that a claim form and fee had been sent to the court in December 2008. The court had no record of receiving these.
Mr Justice Hildyard made it clear that the burden of proof that they were sent lay with the claimant:
“… 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. Upon proof of that to the requisite standard, any delay should not rebound to the disadvantage of the litigant. But the burden was and is on the Claimants to show that they had indeed done what was required of them.”
WHY THE CLAIMANT DID NOT SUCCEED
The judge carried out a close analysis of the evidence of the Claimant’s solicitors as to the facts of this case and their own normal practice. He observed that there were shortcomings:
“Had Cavershams a record of posting or delivery, or firm proof of delivery
into the DX of the particular documents, this risk would have been overcome. Without such a record, and having regard to the gaps and frailties of the evidence, and the uncertainties inherent in the passage of time when there is no contemporaneous documentary record, the risk is real and uncovered.
37. In my judgment, the Claimants have not discharged the burden upon them: they have not persuaded me that it is more likely than not that the documents claimed to have been sent on 3 December 2008 arrived at the court and went astray there. Put shortly, Cavershams had no system to record sending; the court does have a system of recording receipt, and none is shown. Nothing the witnesses have said is such as to displace these basic points,…”
FAILURE TO PAY THE FEE
The claimant had a supplementary argument. The Court definitely did receive some documents on the 6th February 2009 which, the claimant argued, was within the limitation period. However the fee sent was £990 and not the £1,390 required by the Chancery division.
The judge had to determine whether the claim for relief included a claim for money. He found that it did and the cheque sent was short by £400.
THE CONSEQUENCE OF FAILURE TO PAY THE FEE
The judge considered an argument the failure to pay £400 was a small error. However he found that it was the claimant that took the risk.
“56. It is, in a way, concerning that the fate of a claim should depend upon the miscalculation by such a relatively small amount of a court fee. I have considered whether it is so de minimis that the Court should not take it into account, or make some exception or allowance.
57. However, as I read Lewison LJs judgment in the Court of Appeal, the rationale of treating the receipt by the court of the required documents as sufficient and as transferring to the court the risk of loss or delay thereafter (see paragraph 31 of Lewison LJ’s judgment) is that it is unfair to visit such risk on a claimant after he has done all that he reasonably could do to bring the matter before the court for its process to follow Lewison LJ expressly described what had to be established by the Claimants: that the claim form was (a) delivered in due time to the court office, accompanied by (b) a request to issue and (c) the appropriate fee. In my judgment, the failure to offer the appropriate fee meant that the Claimants had not done all that was required of them; and they had left it too late to correct the error, which was a risk they unilaterally undertook.”
The claim was not, therefore, brought within the limitation period.
THE JUDGMENT IN THE COURT OF APPEAL
The judge was making decisions based on the guidance given by the Court of Appeal at
Lewison LJ stated:
“29. When an action is “brought” for the purpose of the Limitation Act 1980 is, in my judgment, a question of construction of the Act. It is not a question of construction of the CPR, let alone a question of construction of a Practice Direction. The CPR (and perhaps the Practice Direction) may inform the construction, but the question remains: what does the Act mean?
- In Barnes v St Helens Metropolitan Borough Council  EWCA Civ 1372  1 WLR 879 Tuckey LJ (with whom Arden and Lloyd LJJ agreed) said:
“I start simply by looking at the words used in the statute and the Rules. I approach them by expecting to find the expiry of a limitation period fixed by reference to something which the claimant has to do, rather than something which someone else such as the court has to do. The time at which a claimant “brings” his claim form to the court with a request that it be issued is something he has to do; the time at which his request is complied with is not because it is done by the court and is something over which he has no real control. Put another way one act is unilateral and the other is transactional. Looked at in this way I do not agree with the judge or Mr Norman that in this context the verb “to bring” has the same meaning as the verb “to start”. The 1980 Act can perfectly properly be construed so that in the context of the CPR a claim is brought when the claimant’s request for the issue of a claim form (together with the court fee) is delivered to the court office. Paragraph 5 of the Practice Direction gives sensible guidance to ensure that the actual date of delivery is readily ascertainable by recording the date of receipt.” (Emphasis added)”
He went on to state:
“Taken literally, the ratio of Barnes v St Helens Metropolitan Borough Council is that once the claimant has delivered his request for the issue of a claim form to the court office, he has “brought” his action. If Mr Last’s evidence is correct, Messrs Page did that in the present case.
- However, literalism is not fashionable, so it is also necessary to consider the policy that underpins the decision. Tuckey LJ dealt with this too. He pointed out that this meant that a claimant had the full period of limitation within which to “bring” his claim; and that it would be unjust if he had to take the risk that the court would fail to process it in time. It does not seem to me that the reason why the court fails to process the request in time alters the justice of the case. If it is unjust for the claimant to take the risk that the court staff are on strike, it seems to me to be equally unjust for him to have to take the risk that a member of the court staff might erroneously put his request in the shredder or the confidential waste, or that his request is destroyed by flood or fire in the court office, or is taken in a burglary. Each of these might be reasons why the court failed to process the request in time. Essentially the construction of the Act that this court favoured in Barnes v St Helens Metropolitan Borough Council is based on risk allocation. The claimant’s risk stops once he has delivered his request (accompanied by the claim form and fee) to the court office. PD 7 cannot, in my judgment, alter the correct construction of the Act.”
LESSONS TO BE DRAWN
1. This is an object lesson of the very real dangers of leaving issue to the very last moment. A small error or misunderstanding in the calculation of the fee could mean the action fails altogether.
2. It is prudent to have a means of documenting outgoing post to demonstrate that letters had been sent.
3. It is important to calculate fees correctly, particularly if you are issuing at the last moment.
A copy of the new fees order introduced on 1st July 2013 can be found here http://civillitigationbrief.wordpress.com/2013/07/01/new-court-fees-after-the-1st-july-2013/
(Remember that fees change regularly and these may not be the fees that prevail at the time you read this post, always check before issue).
LINKS TO CASES
- The decision of the Court of Appeal can be found here http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2012/805.html&query=page+and+hewett&method=boolean
- The decision of Mr Justice Hildyard can be found here http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Ch/2013/2845.html&query=page+and+hewett&method=boolean