In an application for summary judgment or strike out, inter alia, on limitation grounds, the court has allowed the claim to proceed, holding that the effect of the claimant's underpayment of court fees should be considered at trial. (Bhatti and another v Asghar and another [2016] EWHC 1049 (QB))

The defendants had not raised a limitation defence in their pleadings, but argued shortly before the strike out hearing that the claimants had not paid the correct court fees, so the action had not been properly "brought" within the limitation period under the Limitation Act 1980. They had not included a claim for unliquidated damages when calculating the claim value for the purpose of payment of the court fee; also they had included a non monetary claim (for "further or other relief") so should have paid an additional £480 for that element of the claim.

The court noted that following Page v Hewetts Solicitors [2012] EWCA Civ 805, [2012] C.P. Rep. 40 the proceedings were only brought for the purposes of the Limitation Act 1980 where the claimant had done all it could to set the claim in motion, including paying the court fee. The only exception would be if the miscalculation of the fee was the fault of the court rather than the claimant, and further evidence would be needed to establish if that were the case. The limitation issue should therefore be dealt with at trial to give the claimants an opportunity to address the factual issues as to whether they had validly issued the claim and to present evidence of any alleged miscalculation by the court: they argued in the hearing that they had gone to court with a blank cheque and had been advised by court staff what fee should be paid. Moreover there were further possible arguments to be investigated in relation to when the cause of action accrued, and whether, therefore, the limitation period had in fact expired.

The court also refused the application as the limitation point had not been addressed in the defendant's pleadings, nor the summary judgment application; the late submission on this point had left the claimants no reasonable opportunity to respond. The defendants were given permission to amend their pleadings to include the limitation defence.

Comment

The principles set out in Lewis v Ward Hadaway [2015] EWHC 3503 (Ch), [2016] 4 W.L.R. 6, were directly relevant, but in that case the claim was struck out due to failure to pay the correct fee within the limitation period. Despite the similar facts in this case, the judge refused the application, to give the claimant a proper opportunity to respond.

As well as underlining the risks of not paying the correct court fee on issue, the decision also shows the importance of dealing with any arguments on limitation in a timely and procedurally correct manner.