Tom Rainsbury on Bhatti v Asghar: ‘Bouncing’ Claimants about Incorrect Court Fees

The decision in Bhatti v Asghar [2016] EWHC 1049 provides further, and important, guidance on the consequences of failing to pay the correct court fee when issuing a claim.

Background

In 2014, the claimants issued separate claims seeking almost £1million arising from a failed real estate deal. They paid court fees of £1,920 and £1,115 respectively. In the usual way, defences were filed, evidence was exchanged, and the matter was listed for trial in May 2016.

However, shortly before trial, the defendants applied to strike out or obtain summary judgment. The application notice did not identify why the orders were sought, nor was it accompanied by any evidence. It was not until a witness statement was served 3 weeks later that the defendants identified, for the first time, that the application was based on an allegation that the claimants had deliberately underpaid the court fees. It was argued (in the witness statement) that the claims should be struck out as an abuse of process, and later argued (in a skeleton argument) that the failure to pay the correct fees meant that the contractual claims had not been ‘brought’ for limitation purposes, and that the limitation period had since expired.

Decision

Warby J dismissed the application. The abuse of process argument had no real prospect of success. With regards to the limitation argument, the judge accepted that the claimants had underpaid the court fees (by £680 and £480), and acknowledged that there is a ‘clear principle’ that a claim will only be ‘brought’ for limitation purposes when the claimant has done all that is in his power or to set the wheels of justice in motion (which will ‘often, and perhaps ordinarily’ involve paying the correct fee). However, there were compelling reasons why the limitation issue should be addressed at trial. This argument had never been pleaded, it had not been identified until shortly before the hearing, and an adequate justification or excuse had not been given for this. The claimants had to some extent been ‘bounced’ by an unpleaded point, and had not had a full, fair and reasonable opportunity to assess and canvass the issue. The claimants could address the matter better at trial, both factually and legally. Moreover, the limitation argument was only an answer to the contractual claims.

Comment

A number of useful points arise from this decision:

1. Failure to pay the right court fee will rarely (although not never) result in a claim being struck out as an abuse of process. Such an argument did not even get off the ground in this case. This is perhaps unsurprising given the recent decision of Lewis v Ward Hadaway [2015] EWHC 3503. In Lewis, 31 claims had been deliberately and significantly undervalued on issue, in order to defer payment of the correct court fees until a later stage. It was not the first time that the claimants’ solicitors had done this. Although the judge concluded that this was an abuse of process, he held that it would nevertheless be disproportionate to strike out the claims, observing that the Court is ‘not easily affronted’.
2. However, failure to pay the correct fee may result in the claim becoming statute-barred. Having considered the relevant authorities, Warby J in Bhatti concluded that limitation will continue to run until the claimant ‘has done all that is in his power or to set the wheels of justice in motion’. Importantly, doing all that is in one’s power ‘often, and perhaps ordinarily, involves proferring the correct fee to the court office at the same time as presenting the claim form and the applicable Particulars of Claim’. Indeed, in Lewis and Page v Hewetts Solicitors [2012] EWHC 2845, the failure to pay the correct fee resulted in the failure of the claims. The authorities are clear: the court’s approach is very strict on this issue.
3. It is therefore important to take great care when calculating the court fee. The starting point should be the relevant statutory instrument, currently the Civil Proceedings Fees Order 2008 as amended by the Civil Proceedings Amendment Order 2014, and the guidance in the EX50 form on https://www.gov.uk/court-fees-what-they-are. Warby J emphasised in Bhatti that the assessment of the correct fee ‘must be based on the documents presented to the court at the time of issue, that is to say the claim form and, if it is available, Particulars of Claim’. The claim should be taken as stated in those documents. Importantly, for money claims, the amount on which the fee is calculated is the total amount of the claim and the interest (the provisions of CPR 16.2 and 16.3 do not override this requirement). It is also important to consider whether it is a ‘pure’ monetary claim, or whether an additional remedy is sought. In Bhatti, one of the reasons why the claimants had underpaid the court fees was because they had failed to pay an additional £480 for claiming ‘further or other relief’.
4. If the wrong fee has been paid, and limitation is raised as an issue, there may still be scope for resisting dismissal. For example, it may be possible to establish that, despite paying the wrong fee, the claimant nevertheless did everything in their power, or everything that they reasonably could, to issue proceedings in the proper way. In Bhatti, Warby J identified that such a scenario might arise where there ‘the court assumed the burden of calculating the appropriate fee and made an error, for which the claimant was in no way to blame’. In addition, there may also be legal arguments which can be made. For example, Warby J raised the possibility of an argument under s.32 of the Limitation Act 1980 (which deals with the postponement of a limitation period in cases of fraud, concealment or mistake).