SENDING THE FEE WITH THE APPLICATION: FAILURE CAN BE FATAL

I am grateful to barrister Matthew White for sending me details and a copy of the decision of His Honour Judge Lopez in Price -v- Egbert H Taylor Limited (Birmingham County Court 2nd October 2015).

“… there [are] numerous authorities which caution that a party leaving things to the last minute runs a very serious risk. In short, if applications are made at the last minute there may be insufficient time for errors in the application to be corrected. That is particularly important when an extension of time is required. The existence of that obvious risk is important to the running of litigation generally in that it promotes doing things in plenty of time; paying fees with application.”

KEY POINTS

• An application is not made if the relevant fee is not sent with it.
• This had the consequence that the application was not, therefore, made within the relevant time period for compliance.
• Consequently, the action was struck out.

PRACTICE POINTS

• Ensure the fee is sent with any application.
• The age old chestnut: if you leave things to the last minute then you are heading for trouble.

THE CASE

The claimant issued proceedings seven days before the expiration of the limitation period. Prior to the date for service they applied for an extension of time for service of the claim form, Particulars of Claim and Schedule of loss.

• Time was extended to the 25th November 2014.
• On the 17th November 2014 the claimant made a further application to extend time.
• On the 10th December 2014 the court further extended time to the 10th March 2015.
• On the 22nd December 2014 the defendant’s solicitors applied to set aside the order.
• On the 16th January 2015 the case was transferred to Birmingham.
• The court listed the hearing to be heard on the 9th April 2015 and that order was served on the claimant’s solicitors.
• On the 5th March 2015 (within the existing extension) the claimant’s solicitors sent a copy of a further application (the third application)  to extend time to the court.
• However the application was made to Northampton and not Birmingham.
• Further the claimant failed to send the fee of £50.00.
• The application was received at Northampton and marked “no fee enclosed”.
• That application was sent by Northampton to Birmingham County Court who returned it to the claimant’s solicitor on the 18th March 2015 stating that a fee was needed.
• On the 19th March 2015 (outside the extension period) the claimant’s solicitor re-submitted the application with the fee.
• The application to extend time and the application to set aside the original order were heard at the same time on the 9th April 2015.
• The district judge refused the claimant’s application and struck the claim out with costs.

THE DECISION ON APPEAL

The Circuit Judge upheld the decision to strike out the action.

• The application to extend did not include a fee. It was not, therefore, made within the time for compliance with the order. The more generous provisions relating to extensions of time made within time did not apply.
• CPR 23.5 could not be relied upon.

“I find that the Appellant’s reliance on Part 23.5 misunderstands the purpose of that rule which provides that an application is made when received by the Court and not when it is heard or determined by the Court or even when date stamped by the Court. It is not an exception to the general rule that Court fees must be paid. If the application did not have a fee with it was not a properly constituted application – as found by the Learned Deputy District Judge. I accept the submissions on behalf of the Respondent on the point.”

• This was akin to a situation where a  Claim Form is sent with no fee.

” In addition, I accept the submissions on behalf of the Respondent that this was a situation akin to filing a Claim Form with no fee. In that scenario the Court will not issue the Claim Form. In short the claim is issued when it is delivered to the Court with the appropriate fee. The rationale being the purpose that the limitation period and extensions of time are designed to achieve. Further, I accept his submission that by analogy an attempt to extend time without a fee is treated as invalid. Put bluntly, the risk of not filing the right fee when issuing ought to fall on the applicant. Further, there is no difference in principle between the first fee upon issue of the proceedings and later fees necessary in order to apply to extensions of time.”

• The claimant had created difficulties for itself by leaving things to the last moment.

” I accept such a finding seems harsh since the effect of it was that the Appellant claim failed without consideration of the merits of his case due to the failure on the part of his solicitor to pay a Court fee on time. However, as I have already indicated there numerous authorities which caution that a party leaving things to the last minute runs a very serious risk. In short, if applications are made at the last minute there may be insufficient time for errors in the application to be corrected. That is particularly important when an extension of time is required. The existence of that obvious risk is important to the running of litigation generally in that it promotes doing things in plenty of time; paying fees with application.”

OTHER ARTICLES

Matthew’s own article on the case can be found here

RELATED POSTS

On payment of fees

• For two dollars more: the dangers of not sending the correct court fee 
• The dangers of getting the court fees wrong: if the fees are not right – you haven’t issued.