If you pay less than the appropriate fee when issuing your claim before the expiry of the limitation period is your claim in time? Or do you pay the price by being statute barred?

On 7 April 2016 Warby J. sitting in the QBD was asked to determine a summary judgment/strike out application in case called in Bhatti v Asghar which raised this issue.

The claimants in this breach of contract case had underpaid the relevant court fees on issue.

The defendants applied for summary judgment /to strike out of the claimants’ claim, as they said the failure to pay the correct court fees meant the proceedings were invalid and given the expiry of the limitation period, no valid claim had been brought in time.

Warby J did not allow the strike out application, which on its face seems logically to follow from the underpayment. The reasoning is seemingly a cautionary tale.

As a matter of law an action was only "brought" for the purposes of the Limitation Act 1980 where a claimant had done all it could to set the claim in motion, including paying the court fees, per Page v Hewetts Solicitors [2012] EWCA Civ 805, [2012] C.P. Rep. 40 and Lewis v Ward Hadaway [2015] EWHC 3503 (Ch), [2016] 4 W.L.R. 6.

The Civil Proceedings Fees (Amendment) Order 2014 Sch.1 prescribes the required fees for starting proceedings and specifies separate fees imposed for specific money claims, interest claims, and claims for any other remedy. The fees for interest and other remedies were additional to the fee for a money claim.

It was alleged that the defendants, a solicitor and his firm, had asked the Claimant to invest in property in Dubai. They made payments to the first defendant but the property purchase never took place. The final payments had been made in 2009, more than six years before the instant hearing. One claimant sought damages not exceeding £150,000, interest, loss of rental income since 2013, and "further relief". The other claimant sought damages not exceeding £1 million, interest, and again "further relief". Along with their claim forms, the claimants each paid a court fee in line with the amount of their damages claims as stated.

Oddly the defendants did not raise a limitation bar in their defences. They applied for summary judgment and/or striking out of the claims, but apparently, and again somewhat bizarrely, did not provide the grounds for the application until shortly before hearing. It was said that the claimants had not paid the correct court fees, the first claimant should have paid an additional £680 and the second should have paid an additional £480

Warby, J. said the court shared the concerns set out by the Court of Appeal in that a limitation defence could be brought based on a claimant's miscalculation of court fees, especially where sums were proportionately small, but the authorities were clear that in determining whether a claim had been brought, a party must have done all in its power to set the wheels of justice in motion; that would usually require paying the correct fee at the time of submitting the claim form for issue per Barnes v St Helens MBC [2006] EWCA Civ 1372, [2007] 1 W.L.R. 879.

In principle, a calculation error by the court staff could result in a claim being brought without the correct fee, and in that case a blameless claimant would have done all it could reasonably do.

In the instant case both claimants had underpaid the court fees: The second claimant’s claim for loss of rental income brought the money claim to a higher threshold, and both claimants had claimed "further relief" and that general phrase triggered the obligation to pay £480 under the Order. Accordingly the claim had not been brought, and the limitation period for the contract claims had expired. Was the payment of the wrong fee as a result of an error by the court staff?

Warby J declined to order that summary judgment be entered in favour of the Defendants or to strike out the claims. He noted the failure to raise limitation in the defences – or in the summary judgment application. Rightly the judge was of the view that there was no excuse for only raising the argument it at a late stage. Accordingly, the judge held that the claimants had not had a reasonable opportunity to address the defendants' arguments.

The judged also noted that the limitation argument applied only to the breach of contract part of the claims. He considered that the limitation issue would be addressed at trial which would allow the claimants an opportunity to address the factual issue of whether they had in fact ‘done everything in their power to bring the claim’. They would have the possibility of bringing evidence to show that the miscalculation had been the court's fault. The defendants were allowed to amend their pleading to include the limitation defence, so that the issue would be live at trial.

All of this shows that a failure to pay the correct fee prior to the expiry of limitation is not a ‘slam dunk’ for the Defendant. The reason for the failure to pay the correct fee is a highly material consideration.