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”.
- 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”.
- 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 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.