Two of the (many) harsher changes to the civil fees regime in recent times were introduced by the Civil Proceedings Fees (Amendment) Order 2016 which came into force on 6.3.17. That order (1) removed the claimant’s right to refund of the trial fee if the case settled before trial and (2) introduced CPR 3.7A1 which provides for the claim to be automatically struck-out if the trial fee is not paid by “the trial fee payment date”. Needless to say, the earlier the trial fee payment date, the more chance there is that a non-refundable fee will have been paid for a hearing that does not take place because the case settles before trial.

Under CPR 3.7A1 the court is required to send out a notice (a “fee notice”) stating the trial fee payment date, and the consequences of missing it, when it sends out notice of the trial date. Usually both notices are combined in the same document. It appears that some courts are specifying trial fee payment dates that fall months before the trial is due to begin. In the view of the author of this article, the court is not entitled to do that. Except where the trial is listed on short notice, the only trial fee payment date permitted by CPR 3.7A1 and the Civil Proceedings Fees Order 2008 (as amended by the 2016 order) is 28 days before the first (or only) day of the trial, in the author’s opinion.

In a recent case at Reading County Court, the district judge was persuaded of the correctness of this view. A decision of a county court district judge is not a binding precedent, of course. Usually a decision at that level would not merit wide discussion. It seems worthwhile publicising this decision and the argument that succeeded in it, however, for the benefit of anyone who receives a fee notice giving a trial fee payment date some months before the trial date, and especially anyone who received such a notice but omitted to pay the fee by the date stated. That is not to say that it would be sensible simply to allow the earlier trial fee payment date specified in a fee notice to pass and wait until 28 days before the trial to pay the fee. But accidents do happen …

In the case mentioned above, 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 analysis accepted by the court was as follows:-

CPR 3.7A1(7) provides:

‘(7) If—

(a) the claimant has had notice in accordance with this rule to pay the trial fee;

(b) the claimant has not applied to have the trial fee remitted in whole or part; and

(c) the trial fee has not been paid on or before the trial fee payment date,

the claim will automatically be struck out without further order of the court, and unless the court orders otherwise, the claimant will be liable for the costs which the defendant has incurred.’

CPR 3.7A1(1(e) defines “the trial fee payment date” as follows:

‘(e) “trial fee payment date” means the date by which the trial fee must be paid, calculated in accordance with the [Civil Proceedings 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.’

Hence, the date by which the trial fee must be paid calculated in accordance with the Fees Order 2008 is “at least 28 days prior to the trial date”, in a case where notice of trial date is given more than 36 days in advance. 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”.

Para. 2.1 of Sch. 1 to the Fees Order 2008, it was submitted, does not entitle the Court to set an earlier date for payment than 28 days. The words “at least 28 days prior to” mean “by no later than 28 days before”. Similarly, the words “within 7 days after the date on which such notice is given” in the case of a trial listed less than 36 days in advance do not permit the court to set a trial fee payment date of, say, 2 days after the listing notice was given.

CPR 3.7A1(1)(b) requires a fee notice to be sent to the claimant which states the trial fee payment date. The trial fee payment date is not defined by CPR 3.7A1 as the date stated in the fee notice. It is defined as the date by which the trial fee must be paid calculated in accordance with the Fees Order 2008. So, if the date stated is not calculated in accordance with the Fees Order 2008, CPR 3.7A1(1)(e) and 3.7A1(7) have the effect that it is the date by which the trial fee must be paid in accordance with the Fees Order 2008 that triggers the sanction under CPR 3.7A1, not the date misstated in the fee notice.

A reason not to construe the Fees Order 2008 as permitting a court officer to set a date for payment of the hearing fee far in advance of the trial is that the Civil Proceedings Fees (Amendment) Order 2016, which introduced the automatic strike out provisions in their current form, also removed the claimant’s right to repayment of the trial fee if the case should settle before trial. While there is a risk of the claimant paying a non-refundable trial fee for no benefit when the fee must be paid by 28 days before trial, that risk would significantly increase if the fee had to be paid an unlimited number of months before the trial according to a court officer’s discretion. That is unlikely to have been Parliament’s intention.

Counsel for the defendant argued that the court had a discretion to set an earlier payment date so long as it was at least 28 days before the trial but the District Judge robustly rejected that argument.