Judy Dawson discusses another case involving incorrect Court fees paid and whether this gifts the Defendant a limitation defence.Park Square Barristers
In January 2016 I discussed the case of Lewis v Ward Hadaway  EWCA 3503 (Ch) and the possible avenues for Defendants to counter a practice which was at least perceived to be increasing of Claimant solicitors issuing Claim Forms for values below the actual value of the claim, in order to delay the payment of higher Court Fees.
Since that date there have been several cases commenting on such case law, which has made it clear that whilst the Lewis doctrine has not been overruled, the Courts have been loath to extend it.
In the latest of such cases, HHJ Godsmark QC has given judgment in favour of the Claimant where the Defendants sought to extend the doctrine.
In Paul Wells v Ralph Wood & Nottinghamshire County Council  Lawtel, papers were sent to the Court with the wrong Court Fee; the Claimant paid the amount applicable to a case limited to £10,000 when in fact the claim was expressly limited to £15,000. The Court Office did not notice this discrepancy and issued the Claim Form. Further, the amount of damages requested in the supporting documentation (served later on service of the Claim Form) supported a claim far beyond either the £10,000 or the £15,000 and explicitly claimed damages in excess of £25,000. It is of paramount significance that such Claim Form was issued within the limitation period.
The Defendants’ sought to contend as a preliminary issue that as the Court Fee was wrong, the proceedings were defective. This would seem to have been a somewhat optimistic extension of the case law and ignored the absolutely crucial differential postulated in the Lewis case between those cases where the Claim Form had been issued within the limitation period and those where the Claim Form had been issued beyond the limitation period such that the only way the Claimant could bring himself within the limitation period was to rely on CPR Practice Direction 7A (allowing the Claimant to rely on the date upon which the papers have been delivered to the Court). In those latter cases the case law states that the Claimant cannot rely on such Practice Direction (effectively asking for the indulgence of the Court) if he has not done all he can have done to ensure that the correct documentation is before the Court so the claim can be issued in time; such correct documentation included the correct Court Fee.
In the Wells case the Claim Form had been issued by the Court before the expiry of the limitation period. Unsurprisingly the HHJ Godsmark QC shied away from any suggestion that the Defendants could contend that such Claim Form was defective. Any suggestion of an abuse of process (which although found in Lewis was not such to lead to strike out) was effectively negated by evidence from the Claimant’s solicitor in relation to the thought processes which had led to the issue for the lesser sum.
Of perhaps more significance in the longer term for cases where the Claim Form was issued outside the limitation period and the Claimant does seek to rely on the Practice Direction (such that the Defendant has at least a chance of succeeding on this point), the Judge went on to find that section 33 would have been applied in any event to extend the limitation period. However given that part of the reasons to disapply the limitation period was that the claim was issued before the limitation period expired, this is perhaps not likely to be directly applicable. It could be said to be an obiter part of the judgment in any event.
The Defendants have been quick to jump on points relating to the payment of an incorrect Court Fee. The case law as it currently stands is clear; if the Claim Form is in fact issued by the Court before the expiry of the limitation period, then defences based on the payment of an incorrect issue fee and the Limitation Act 1980 will not succeed. It is only where the Claimant seeks to rely on the Practice Direction 7A when his claim was issued after expiry of the limitation period that such challenges can properly be mounted.
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