STRIKING OUT THE CLAIM FOR NON-PAYMENT OF TRIAL FEE: THIS IS ALWAYS A POINT TO WATCH

In April this year the rules were amended to introduce a concept of “automatic striking out”.  Put simply if a claimant does not pay the court fee by the relevant date. I have seen occasions where this has had effect. It may well be a  reminder is due. This is not a matter upon which a claimant (or sometimes a counterclaiming defendant) can be complacent.

THE RULES

CPR 3.7A1.

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.

 

IT COULD HAPPEN TO YOU

In February I wrote 

“Sooner or later someone is going to fall foul of this”.

This did not require any special degree of precognition. A rule in these stark terms is always going to cause problems at some time.

HOW IT CAN HAPPEN

Commonsense and cash flow issues means it is often not prudent to pay the fee too early, particularly now that the fee is not repayable. What can happen is that:

  • Diligent solicitor dictates letter well ahead of time.
  • Letter goes to accounts office where it waits around for a while.
  • Action gets struck out.

I have also seen examples of letters (and the fee) being sent but not received.

The court would not accept the fee late because the action had been automatically struck out.

TO AVOID IT

Make sure that everyone knows the importance of the fee arriving by the relevant date.

IF IT HAPPENS TO YOU

Make an application to reinstate immediately. There is little point in protesting about the matter.  The striking out is automatic (although often followed up by a court order). Speed of application often plays a central part in these matters, particularly if a trial date or window is imminent and the parties want to preserve it.

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 2008(b) 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. (Rule 44.9 provides for the basis of assessment where a right to costs arises under this rule and contains provisions about when a costs order is deemed to have been made and applying for an order under section 194(3) of the Legal Services Act 2007(a).)
(9) If—
(a) a claimant applies to have the claim reinstated; and
(b) the court grants relief, the relief must be conditional on the claimant either paying the trial fee or filing evidence of full or part remission of that fee within the period specified in paragraph (10).
(10) The period referred to in paragraph (9) is—
(a) if the order granting relief is made at a hearing at which the claimant is present or represented, 2 days from the date of the order;
(b) in any other case, 7 days from the date of service of the order on the claimant.
(11) If a fee is not paid for a claim where there is also a counterclaim, the counterclaim will still stand.”
[However where the claim proceeds only on the counterclaim a new rule 3.7AA applies identical duties on the counterclaiming defendant.