A High Court judge has thrown out a claim after the solicitors inadvertently underpaid the court fee by £24.

In Peterson & Anor v Howard De Walden Estates Ltd Mr Justice Eyre ruled that a failure to pay the fee necessary was not an error of procedure within the scope of civil procedure rules and so the court did not have power to remedy the mistake.

The claimants had sought to make an application in a landlord-tenant dispute and had four months to do so. Two days before the deadline of 25 March 2022, a representative of the claimants’ solicitors, national firm Wiseman Lee, attended Central London County Court but found the counter had been moved due to renovation works. Court staff explained that payments could not be made yet at the new location, but that if papers were lodged in the post box then they would be treated as having been received that day.

The solicitors issued the claim form with a covering letter giving authority to deduct the £308 fee. This had previously been the applicable fee but it had been increased to £332 in September 2021.

The claim form was returned to the solicitors with a letter explaining that the matter could not be processed with the old fee. The effect was ultimately that the deadline was missed.

The solicitors asked the court for relief under rule 3.10, which gives a general power to rectify matters where there has been an error of procedure.

But Recorder Hansen concluded this rule did not extend to cover the present circumstances and there had been no ‘failure to comply with a rule or practice direction’.  Hansen said: ‘The court was quite entitled to do as it did, given the failure to tender the correct fee… it is the issue of the claim form that marks the commencement of proceedings and it is only then that the court’s case management powers under CPR 3.10 are engaged.’

He added that the law in this area was ‘ripe for review’ by the Court of Appeal and questioned whether the current state of the law in this area was ‘entirely satisfactory’, pointing out the mistake in this case was ‘inadvertent and understandable’.

On appeal, the claimants said the recorder’s approach was fundamentally flawed by his failure to characterise the fee mistake as an error of procedure, and that this error of procedure was not limited to steps taken after proceedings had been commenced.

Mr Justice Eyre rejected this conclusion, adding: ‘The error was not a failure to comply with some requirement laid down in the CPR. Instead it was a failure to take a step which the lord chancellor had required to be taken before the court staff would issue a claim form.’

He said the government had legislated to implement the four-month period for tenants to bring claims and it was not for the courts to say the result of this was unsatisfactory.

 

This article is now closed for comment.