We last commented on the impact that paying the incorrect court fee has on limitation periods in edition 161 of BC Disease News, when we reported on the decision of Dixon v Radley House Partnership  EWHC 2511 (TCC). This has recently been followed by the decision in Wells v Wood & Nottinghamshire County Council (Lincoln County Court, 9 December 2016) and it is this judgment which we are now concerned with.
In this claim, the claimant had been injured in a road traffic accident in September 2012. On 5 September 2015, he issued a claim against the driver and the highway authority. The claim form certified that the value of the claim was no more than £15,000. Accordingly, the correct fee was £675, but the claimant paid £455. Limitation expired on 27 September 2015. His particulars of claim, which were served in December 2015, indicated that damages were expected to exceed £25,000. In its defence, the first defendant alleged that failure to pay the correct fee meant the claim was not properly brought and was statute-barred. The claimant obtained permission to amend the claim form's value certificate to £25,000 with effect from 24 April 2016, and paid the increased court fee.
The court was required to determine whether
- the failure to pay the correct fee meant that the claim was time-barred under the Limitation Act 1980
- the court should exercise its discretion to allow the claim to proceed.
The first defendant argued that, if the correct fee was not paid, the claim had not been ‘brought’ and limitation continued to run.
Judge Godsmark QC found that the suggestion that payment of the wrong fee rendered a claim defective did not sit comfortably with the provisions of the CPR. The starting position was that a claim form issued and sealed by a court was effective for limitation purposes regardless of the fee paid. Issue of the claim form marked the commencement of proceedings. Indeed, neither CPR r.7.2, nor PD7A para 5, made any reference to the payment of fees.
The question was then posed, whether the authorities compelled the court to reach a different view. On analysis of the case authorities, a number of issues emerged:
(a) none of the cases concluded that a claim form issued and sealed by the court (regardless of fee paid) was not effective to stop the limitation clock;
(b) the authorities pointed to what was necessary to bring a claim before the claim form was issued: what was required was that the claimant did all in his power to set the wheels of justice in motion, including payment of the appropriate fee;
(c) a claim might be struck out as an abuse of process if there was a deliberate decision to avoid paying the appropriate issue fee. However, the finding of such an abuse of process, and the court's discretionary reaction to it, were quite separate from the limitation status of a claim.
As such, the court was not constrained by authority to find that a claim form issued and sealed by the court within the limitation period was ineffective to stop the limitation clock, whether or not the correct fee for issue had been paid.
The judge also rejected the defendant’s argument that ‘bringing’ a claim was separate to ‘starting’ a claim. It was held that a claim could not be started and issued without also being brought within the meaning of the Limitation Act 1980. However, a claim could be brought before the claim form was issued, as provided for in CPR PD7A para 5, which states that where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is ‘brought’ for the purposes of the Limitation Act.
Further, it was found that questions of payment of court fees were primarily between the paying party and HM Courts and Tribunals Service and the payment of the wrong fee by the claimant at issue had no effect on the validity of the claim form, or the stopping of the limitation clock. It was a matter which required correction, which had happened in the present case (as was the case in Dixon).
In any event, Judge Godsmark QC found that, had the court been required to consider the exercise of its discretion under s.33, the most important of all the circumstances was that the claim was started within the limitation period. In this instance, a letter of claim had been sent seven months after the accident which led to the issue of proceedings within time. The delay was in the payment of the correct fee and had caused no prejudice, no substantial effect on the cogency of evidence and, as such, the court would have found it equitable to apply s.33 to permit the claim to proceed.