STRUCK OUT FOR FAILURE TO PAY THE TRIAL FEE? WELL YOU MAY NOT BE: COURT ORDERS THAT MAY NOT COMPLY WITH COURT RULES

When the rules committee re-introduced the concept of “automatic striking out” into the rules it was always going to cause problems. A case can be automatically struck out for failure to pay the trial fee in time.  However some Court orders compelling payment of court fees may fail to comply with the rules. I am grateful to my colleague at Hardwicke, Daniel Gatty,  for bringing my attention to his article on this topic on the Hardwicke website. Daniel has given me permission to cannibalise his article for the purpose this blog.

AUTOMATIC STRIKING OUT FOR PAYMENT TO PAY TRIAL FEES

CPR 3.7A1 imposes an obligation on a claimant to pay a trial fee.

(1) When the court notifies the parties in writing of the trial date, the court must also send a fee notice to the claimant.

(2) That notice must give a “trial fee payment date”.

(3) If the claimant does not make payment (or make an application for remission of fees) by the trial fee payment date then the action is automatically struck out.

THE TRIAL FEE PAYMENT DATE

Many courts give notices of trial date well in advance of the trial date.  The notices often give a trial fee payment date well in advance of the trial fee payment date.

However the “trial fee payment” date is actually set by the rules.

CPR 3,7A1 gives a definition of trial fee payment date.

(e) “trial fee payment date” means the date by which the trial fee must be paid, calculated in accordance with the Fees Order 2008;

THE FEES ORDER 2008

Para. 2.1 in column 1 of the table at Sch. 1 to the Civil Proceedings Fees Order 2008 as amended (“the Fees Order 2008”) sets the trial fee payable and provides:

‘Where notice of trial date or trial period is given by the court 36 days or more before the trial date or the Monday of the first week of the notified trial period, fee 2.1 is payable at least 28 days prior to the trial date or the Monday of the first week of the notified trial period.’

When less than 36 days’ notice of the trial date is given, the Fees Order 2008 states that the trial fee is payable “within 7 days after the date on which such notice [of the trial date] is given”.

THEREFORE

  1. When the court gives 36 days (or more) notice of the trial date the trial fee must be made “at least 28 days prior to the trial date”.
  2. If there is less than 36 days notice the fee must be paid within 7 days after the date of the date on which the notice must be given.

DANIEL’S CASE

Daniel reports on a decision in Reading County Court where a district judge was considering a case where the fee was ordered to be paid some months before trial.

“…  the fee notice specified a trial fee payment date approximately four months before the trial was to begin.  The claimant did not pay the trial fee by that date but paid it more than 28 days before the trial (or would have done had payment not been refused by the court office on the ground that the claim was struck out under CPR 3.7A1).  In an ex tempore judgment, District Judge Harrison held that the claim was not struck out: the fee had been paid in time even though payment was sent after the date stated in the fee notice because the rules do not give the court a discretion as to when the trial fee payment date should fall.  When the trial is listed more than 36 days ahead of time, the trial fee payment date is set by the Civil Proceedings Fees Order 2008 (as amended) at 28 days before the first day of the trial.  The court does not have the power to set some earlier date in a fee notice; it is failure to pay by the date calculated according to the Civil Proceedings Fees Order 2008 that triggers the strike out, not failure to pay by an earlier date specified in a fee notice. “

THE SUCCESSFUL ARGUMENT

Daniel sets out the argument in detail.

“Hence, the date by which the trial fee must be paid calculated in accordance with the Fees Order 2008 is “at least 28 days prior to the trial date”, in a case where notice of trial date is given more than 36 days in advance.  When less than 36 days’ notice of the trial date is given, the Fees Order 2008 states that the trial fee is payable “within 7 days after the date on which such notice [of the trial date] is given”.
Para. 2.1 of Sch. 1 to the Fees Order 2008, it was submitted, does not entitle the Court to set an earlier date for payment than 28 days.  The words “at least 28 days prior to” mean “by no later than 28 days before”.  Similarly, the words “within 7 days after the date on which such notice is given” in the case of a trial listed less than 36 days in advance do not permit the court to set a trial fee payment date of, say, 2 days after the listing notice was given.
CPR 3.7A1(1)(b) requires a fee notice to be sent to the claimant which states the trial fee payment date.  The trial fee payment date is not defined by CPR 3.7A1 as the date stated in the fee notice.  It is defined as the date by which the trial fee must be paid calculated in accordance with the Fees Order 2008.  So, if the date stated is not calculated in accordance with the Fees Order 2008, CPR 3.7A1(1)(e) and 3.7A1(7) have the effect that it is the date by which the trial fee must be paid in accordance with the Fees Order 2008 that triggers the sanction under CPR 3.7A1, not the date misstated in the fee notice.
A reason not to construe the Fees Order 2008 as permitting a court officer to set a date for payment of the hearing fee far in advance of the trial is that the Civil Proceedings Fees (Amendment) Order 2016, which introduced the automatic strike out provisions in their current form, also removed the claimant’s right to repayment of the trial fee if the case should settle before trial.  While there is a risk of the claimant paying a non-refundable trial fee for no benefit when the fee must be paid by 28 days before trial, that risk would significantly increase if the fee had to be paid an unlimited number of months before the trial according to a court officer’s discretion.  That is unlikely to have been Parliament’s intention.”

THE RULES

Sanctions for non-payment of the trial fee by the claimant

3.7A1
(1) In this rule and in rule 3.7AA—
(a ”Fees Order 2008” means the Civil Proceedings Fees Order 2008;
(b) ”fee notice” means a notice of—
(i) the amount of a trial fee;
(ii) the trial fee payment date; and
(iii) the consequences of non-payment of the trial fee;
(c) “trial date” means the date of the trial in relation to which the trial fee is payable, and if the trial in relation to which the trial fee is payable is scheduled to commence during the course of a specified period, “trial date” means the date of the Monday of the first week of that specified period;
(d) “trial fee” means fee 2.1 set out in the Table in Schedule 1 to the Fees Order 20083 and payable for the trial of a case on the multi-track, fast track or small claims track;
(e) “trial fee payment date” means the date by which the trial fee must be paid, calculated in accordance with the Fees Order 2008;
(f) “revised trial fee payment date” means, if an application for fee remission is denied in whole or part, the revised date by which the fee or part of it is to be paid, calculated in accordance with the Fees Order 2008.
(2) This rule applies in relation to trial fees where that fee is to be paid by the claimant and the court notifies the parties in writing of the trial date.
(3) When the court notifies the parties in writing of the trial date, the court must also send a fee notice to the claimant.
(4) The fee notice may be contained in the same document as the notice of trial date, or may be a separate document.
(5) Where an application for full or part remission of a trial fee is refused, when the court sends written notice to the claimant of the refusal, the court must also notify the claimant in writing—
(a) that the claimant is required to pay the full trial fee by the revised trial fee payment date; and
(b) of the consequences of non-payment of the trial fee.
(6) Where part remission of a fee is granted, when the court sends written notice to the claimant of the part remission, the court must also notify the claimant in writing—
(a) that the claimant is required to pay the balance of the trial fee by the revised trial fee payment date; and
(b) of the consequences of non-payment of the balance of the trial fee.
(7) If—
(a) the claimant has had notice in accordance with this rule to pay the trial fee;
(b) the claimant has not applied to have the trial fee remitted in whole or part; and
(c) the trial fee has not been paid on or before the trial fee payment date,
the claim will automatically be struck out without further order of the court, and unless the court orders otherwise, the claimant will be liable for the costs which the defendant has incurred.
(8) If—
(a) the claimant has had notice in accordance with this rule to pay the trial fee;
(b) the claimant has applied to have the trial fee remitted in whole or part;
(c) remission is refused or only part remission of the trial fee is granted;
(d) following the decision on remission, the claimant has had notice in accordance with this rule to pay the full trial fee or balance of it; and
(e) the full trial fee or balance of it (as appropriate) has not been paid on or before the revised trial fee payment date,
the claim will automatically be struck out without further order of the court, and, unless the court orders otherwise, the claimant will be liable for the costs which the defendant has incurred.