THE CORRECT COURT FEE WHEN ADDITIONAL PARTIES ARE JOINED INTO AN ACTION: NOT £55 BUT £10,000 (OH, AND YOU CAN’T RELY ON WHAT THE COURT TOLD YOU…)

February 8, 2021 · by · in Abuse of Process, Applications, Civil Procedure, Court fees

There are not many cases where a judge is asked to determine what the appropriate court fee should be. However this is precisely what occurred in the judgment of HHJ Pearce in Walayat & Ors v Berkeley Solicitors Ltd [2021] EWHC 227 (Ch).  The judge rejected an argument that the correct fee payable when an additional party is joined into an action is £55, instead it was (on the facts of that case ) £10,000.  This should give pause to thought for those joining in additional parties  – money boxes may have to be raided.

“The litigation has been conducted with extreme ill temper, poor attention to procedural requirements and an apparent desire to complicate rather than simplify the issues. I have previously criticised the parties for this.”

 

THE CASE

The Fourth and Fifth parties to an action were unsuccessful in setting aside additional claims brought against them. However an issue arose as to the appropriate fee to be paid.  The judge rejected an argument that payment of the wrong fee was an abuse of process. However he reserved judgment on the issue of what the correct fee was.

THE JUDGMENT

The judge considered the competing arguments as to the correct fee to be paid.  He found that the parties could not rely on statements or the views of the court staff.  This was a matter of statutory construction.  The was not £55 and, on the facts of this case, was £10,000.

The Issue
    1. The issue is as to the amount of the fee is payable on bringing an additional claim against a person who is not already a party to proceedings, pursuant to CPR 20.2(1)(c). The relevant fees are set out in the Civil Proceedings Fees Order 2008 (“the 2008 Order”), as amended. Schedule 1 to the 2008 Order (which in fact was entirely substituted by amendment by virtue of the Civil Proceedings Fees (Amendment) Order 2014, and is hereafter called “the Schedule”) provides:
“1.1 On starting proceedings (including proceedings issued after permission to issue is granted but excluding CCBC cases brought by Centre users or cases brought by Money Claim OnLine users) to recover a sum of money where the sun claimed…(i) exceeds £200,000 or is not limited” the fee is £10,000;
“1.5 On starting proceedings for any other remedy (including proceedings issued after permission to issue is granted): in the High Court” the fee is £528; and
“1.6 On the filing of proceedings against a party or parties not named in the proceedings” the fee is £55. The Schedule goes on to state, “Fee 1.6 is payable by a defendant who adds or substitutes a party or parties to the proceedings or by a claimant who adds or substitutes a defendant or defendants.”
“1.7 On the filing of a counterclaim” the fee is “The same fee as if the remedy sought were the subject of separate proceedings.”
    1. CPR 20.2 provides:
“(1) This Part applies to –
(a) a counterclaim by a defendant against the claimant or against the claimant and some other person;
(b) an additional claim by a defendant against any person (whether or not already a party) for contribution or indemnity or some other remedy; and
(c) where an additional claim has been made against a person who is not already a party, any additional claim made by that person against any other person (whether or not already a party).
(2) In these Rules –
(a) ‘additional claim’ means any claim other than the claim by the claimant against the defendant; and
(b) unless the context requires otherwise, references to a claimant or defendant include a party bringing or defending an additional claim.”
    1. CPR 20.3 provides:
“(1) An additional claim shall be treated as if it were a claim for the purposes of these Rules, except as provided by this Part.
(2) The following rules do not apply to additional claims –
(a) rules 7.5 and 7.6 (time within which a claim form may be served);
(b) rule 16.3(5) (statement of value where claim to be issued in the High Court); and
(c) Part 26 (case management – preliminary stage).
(3) Part 12 (default judgment) applies to a counterclaim but not to other additional claims.
(4) Part 14 (admissions) applies to a counterclaim, but only –
(a) rules 14.1(1) and 14.1(2) (which provide that a party may admit the truth of another party’s case in writing); and
(b) rule 14.3 (admission by notice in writing – application for judgment),
apply to other additional claims.”
    1. The Relevant Additional Claims are claims against people who were not already parties to the action for remedies other than contributions or indemnity. It follows
(a) that they are additional claims to which Part 20 applies (see CPR 20.2(1)(b)); and
(b) that they are to be treated as a claim for the purposes of the CPR (save as provided in Part 20) (see CPR 20.3(1)).
    1. The Relevant Additional Claims were issued without the Defendant stating a limit to their value. The Fourth and Fifth Defendants contend that the making of the Relevant Additional Claims falls within paragraph 1.1 of the Schedule, such that the fee payable is £10,000, there being no suggestion that any of the exceptions in paragraph 1.1 apply. The Defendant contends that bringing the Relevant Additional Claims falls within paragraph 1.6 such that the relevant fee is £55.
    1. No one has sought to argue that paragraph 1.5 of the Schedule applies, even though that was the Defendant’s original belief. In my judgment it clearly does not. If bringing the Relevant Additional Claims amounts to “starting proceedings” then those proceedings involve a claim to recover the sum of money and hence fall within paragraph 1.1 rather than 1.5. If they do not, paragraph 1.5 would not apply in any event. The real question is whether the Defendant’s action amounted to “starting proceedings’ or “filing proceedings against the party or parties not named in the proceedings“.
The Competing Arguments
    1. The Claimant relies upon the following:
(a) The belief of staff in the Court Office that £55 is the correct fee.
(b) The terms of Paragraph 1.5 of the Schedule. The Defendant contends that filing an additional claim against a non-party is properly described as, and indeed exactly meets the description of, “filing proceedings against a party or parties not named in the proceedings.”
(c) The terms of CPR20.3(2)(b), which disapplies the requirement in CPR16.3(5) to provide a statement of value where an additional claim is brought in the High Court, an obligation which otherwise would arise by virtue of CPR20.3(1).
    1. The Defendant relies upon:
(a) The documents EX50, entitled “Fees in the Civil and Family Courts – Main Fees” produced by HMCTS, which states on page 7:
“Counterclaims and additional claims
Money claims – the court fee payable (set out on page 5) is based on the value of the counterclaim or additional claims. If the original claim was issued in a court, the court issue fee applies.” This is clearly a reference back to the table that appears in Paragraph 1.1 of the Schedule.
(b) The terms of CPR 20.3(1) that “an additional claim shall be treated as if it were a claim for the purposes of these Rules, except as provided by this Part.” Since no exception is provided for the payable fees, the result of CPR 20.3(1) is that the additional claim should be treated as a “a claim” both for the purpose of the CPR itself and of the 2008 Order which is clearly intended to work in conjunction with the CPR.
Discussion
    1. I can quickly dispose of the first point made by the competing sides. The fact that different parts of HMCTS have competing views on the correct fee payable is hardly a ringing endorsement of either side’s position. The statement in the EX50 that the fee payable is that provided by paragraph 1.1 of the Schedule, which has presumably been considered with some care before being published, is perhaps likely to represent a more considered position, though it has been suggested to me by the Court Office that their belief that the fees is that stated in paragraph 1.6 arises from the fact that this is the fee generated when one tries to issue Part 20 proceedings on CE-filing, which itself presumably is the result of some careful inputting. In any event, the two positions are contradictory, and neither is any more than an opinion on the relevant fee. Neither binds me and I do not consider it appropriate to be influenced by opinions the genesis of which I do not know.
    1. The proper task for the court in this case is to apply principles of statutory interpretation to the 2008 Order, in particular that I should seek to arrive at the legal meaning of the enactment, that is to say the meaning that conveys the legislative intention.
    1. The Defendant’s argument that its interpretation should be preferred because no statement of value is required for the bringing of an additional claim is misconceived. The purpose of the statement of CPR 16.3(5) relating to including statements of value in a claim form issued in the High Court is not for the purpose of determining the correct fee payable under Paragraph 1.1 of the Schedule. If it were, the rule would require a more precise statement of value to reflect the determination of the relevant fee under Rule 1.1. Rather the rule is there to ensure that proceedings are not wrongly issued in the High Court. This can be deduced from:
(a) The fact that the statements as to value required in a claim form issued in the High Court under CPR 16.3(5) exactly mirror the restrictions on issuing proceedings in the High Court set out in Paragraphs 2.1 and 2.2 of CPR PD 7B.
(b) The fact that one way to discharge the obligation to state a value under CPR 16.3(2), namely by way of statement as to what the Claimant expects to receive as set out in CPR 16.3(2) (which applies in County Court cases but is unnecessary in High Court cases because superseded by the obligation as to statement of value in CPR 16.3(5)), bears no close relation to the fees payable under the 2008 Order. For example, the statement that a Claimant expects to receive “not more than £25,000” which might be made to comply with CPR 16.3(2) would leave the person making the statement and the court little the wiser as to what fee was payable, since it straddles the first seven of the fees in Rule 1.1 of the Schedule.
    1. The crux of the interpretation exercise here lies in looking at the wording of paragraphs 1.1, 1.6 and 1.7 of the Schedule in the light of CPR 20.2 and CPR 20.3. As I have indicated, the Relevant Additional Claims are “additional claims” within Part 20, therefore they are to be treated as a claim for the purposes of the CPR. The same is true of every counterclaim by a Defendant and every claim by a person joined as an additional party to the claim against any existing or any further party, by virtue of the terms of CPR 20.2(1). In so far as the person against whom the additional claim is by way of counterclaim against an existing party, the fee is expressly provided by Paragraph 1.7 of the Schedule and is the same as on issue of a claim for like amount. It would be indeed be strange if the fee payable on issuing an additional claim against a new party was any different to this.
    1. What seems more probable is that the terms of Paragraph 1.6 of the Schedule are aimed at a different situation altogether, that is to say the position where a new party is joined without new causes of action and/or claims being introduced (save in so far as they technically be new because of the change of the identity of the parties), the position typically covered by an application under CPR 19.4. This would be consistent with the statement in the Schedule that such fee is “payable by a defendant who adds or substitutes a party or parties to the proceedings or by a claimant who adds or substitutes a defendant or defendants.” So for example, the substitution of Personal Representatives on the death of a party, the addition of a party who is argued to be liable in the same way as an existing party or the substitution of a different party because a mistake had been made as to the identity of the party originally sued would fall within this rule. It is easy to understand why a lesser fee is charged in such circumstances. The issues that arise as a result of such addition or substitution are narrow in scope and merely seek to correct an error or a technical problem with the claim as originally framed. In comparison, an additional claim almost by definition requires the court to look at new issues, just as a new counterclaim does.
Conclusion
    1. The wide wording of paragraph 1.6 of the Schedule might give the impression that it is intended to cover additional claims. However, the qualification to the fee couple with the express wording of paragraph 1.7 of the First Schedule to the 2008 Order (in respect of counterclaims) together with the general statement in CPR 20.3(1) that additional claims are treated is claims make it far more probable that the legislative intention was to deal with the different circumstances contemplated in paragraph 20 above.
    1. For these reasons, I conclude that the correct fee payable is that set out in paragraph 1.1 of the Schedule, which in the context of an additional claim which is unlimited generates a fee of £10,000. I shall make a declaration to that effect and, require the Defendant to pay the the outstanding balance of that sum as a condition of continuing to pursue the Relevant Additional Claims.
  1. No other consequential matters arise from this judgment. All issues as to costs and other consequential matters were dealt with on 2 February 2021 and in the order to be made following that hearing.
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