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Claim not “brought” for limitation purposes if court fee has been underpaid

In the case of Bhatti v Asghar, Warby J sitting in the Queens Bench Division of the High Court was asked to consider the Defendant’s application for summary judgment and / or strike out. In the application, the Defendant contended that the Claimant’s solicitor had deliberately underpaid the court fees due on the issue of the claim form and that such failure to pay the correct court fees meant that the proceedings were invalid and given that the limitation period had now expired, no valid claim has been brought in time.

The court refused the Defendant’s application on the particular facts of this case instead considering that there were compelling reasons why the issue of limitation should be addressed at trial, particularly because the Defendants had not pleaded the limitation issues and had raised them only the day before the hearing.

However, the judgment of Warby J makes it clear that the court will take a strict approach as to the question of whether a claimant has done everything in its power to set the proceedings in motion for the purposes of stopping limitation from running (the test arising from the authorities to date). He observed that “doing all that is in one’s power” to set the wheels of justice in motion will ordinarily include proffering the correct court fee to the court office at the same time as presenting the claim form and applicable particulars of claim.

Warby J held that, in this case, there had been an underpayment of the court fees due on issue. In particular:

  • In a money claim, interest on a claim for a specified sum must be included with the value of the claim and the correct fee calculated on this basis; and
  • The inclusion of a non-money claim, even one as generalised as “further or other relief”, would trigger an obligation to pay the additional fee provided for in respect of non-money claims in the relevant statutory instruments (in this case £480).

The decision highlights the importance of claimants and their legal advisors correctly assessing the fee payable on issuing the claim form and, where possible, obtaining the Court’s approval of their calculation since Warby J indicated that if the court staff had made an incorrect calculation which was not the claimant’s fault, the claimant would have done all it reasonably could do therefore meeting the test for the claim being “brought” for the purposes of stopping limitation running.

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