A recent decision of the King’s Bench Division of the High Court has illustrated the importance of correctly paying court fees and making applications promptly.

In Peterson & Anor v Howard De Walden Estates Limited [2023] EWHC 929 (KB) Mr Justice Eyre dismissed the appeal against Recorder Hansen’s decision that a failure to pay the correct Court fee was an error the Court could remedy.

In terms of the background, the Claimants sought to make an application for an order under Section 48(3) of the Leasehold Reform, Housing & Urban Development Act 1993. This is an application whereby the tenant can apply to court for an order once terms of acquisition have been agreed. It is a strict deadline and if no application is made by the deadline the tenant’s claim is deemed withdrawn.

The solicitors’ letter accompanying the claim form authorised the court to deduct a fee of £308. This was an unfortunate error, as the correct court fee was £332 (it had recently increased from £308). By the time the court wrote to the Claimant’s solicitors to inform them of the error, the deadline had passed and the application could no longer be made. The Claimants applied to Court on the basis that there had been an error in procedure and asked the court to remedy this pursuant to CPR 3.10.

CPR 3.10 states:

Where there has been an error of procedure such as a failure to comply with a rule or practice direction –

  • the error does not invalidate any step taken in the proceedings unless the court so orders; and
  • the court may make an order to remedy the error.

Recorder Hansen dismissed the application and concluded that the Court did not have jurisdiction under CPR 3.10 to remedy the under payment. The recorder gave permission for the decision to be appealed to the High Court.

Mr Justice Eyre considered the law in detail and upheld the decision of the recorder. The Judge held that CPR 3.10 did not apply to matters occurring before the commencement of proceedings. The Judge stated at paragraph 58 of his Judgment:

“In relation to the circumstances of this case an error of procedure does not include a failure to pay a court fee needed to initiate proceedings…”.

The decision can be seen as being harsh to the Claimants, who will have lost the right to a new lease because of an underpayment of a court fee of £24.

The deadline for the Claimants to issue their claim was 25 March 2022. On 23 March 2022 the Claimants’ solicitors posted the claim form through the court post box with a covering letter stating that £308 could be deducted.

The claim form was returned by the court to the Claimants’ solicitors on 24 March 2022, with a covering letter which stated:

“The new claim processing fee is £332 and not £308 so the court cannot process your new claim with the old fee”.

The Claimants solicitors received the letter on 30 March 2022 and issued the application on 31 March 2022 which came before the recorder. By the time they received the letter, the deadline of 25 March 2022 had elapsed.

While harsh, Mr Justice Eyre pointed out that the Claimants had left matters right to the end of the time period to issue their claim. The Judge stated at paragraph 61 of his detailed judgment:

“….the difficulties which arose are precisely the kind of matters which will only cause insuperable problems when a party is seeking to make an application at the end of a time period. If the claim form and covering letter had been submitted even only a few days earlier there would have been time before the end of the necessary period to remedy the deficiency in the fee proffered. Moreover, the correct court fees are a matter of public record. One can well understand how the error arose but the position remains that the error was made because the Claimants’ solicitors were working on the basis of a fee scale which had been superseded some six months previously”.

The courts have often had little sympathy for those leaving matters to the cusp of deadlines. The salutary lesson is never to leave issuing proceedings until just before the deadline and always check the correct court fee using the most up to date Civil and Family Court Fees Guide.

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