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Practitioner's Update: Butters & Anor v Hayes [2021] EWCA Civ 252 - Harry Peto, Temple Garden Chambers

05/03/21. Does the non-payment of a court fee mean time continues to run for limitation purposes in respect of a new claim within existing proceedings? In Jackson LJ’s view, it does not.

If a new claim which is not otherwise abusive is made by amendment within the limitation period, it will not later become time-barred because a requisite court fee has not been paid.

Statutory framework

s.35 of the Limitation Act 1980 (“the LA 1980”) governs new claims in pending actions. A new claim in the course of an action is deemed to have commenced on the same date as the original action.

CPR rules 3.7, 3.7A1, 3.7A and 3.7AA concern the consequences of non-payment of court fees. If a fee is not paid after a warning notice from the court, the claim is struck out. There is no express sanction for a failure to pay a fee due on amendment.

CPR 17 governs new claims. Amendment after service can be made by consent or with the court’s permission. The amendment occurs on the date of the amended document; in Jackson LJ’s view, the new claim will not be made until the document is filed at court or served on the other party, whichever is earlier (CPR PD 17 1.3 and 1.5).

Where a claim is amended, and the fee paid before amendment is less than that which would have been payable if the document, as amended, had been so drawn in the first instance, the party amending the document must pay the difference (Schedule 1, Fees Order). But the CPR does not provide that a new claim won’t be considered ‘made’ if an appropriate increment is not paid. Nor do they provide that an original action will not have been ‘brought’ if the original court fee is not paid.

Jackson LJ’s view is, therefore, that the statutory framework leads to the conclusion that non-payment of a fee does not of itself prevent a new claim from being ‘made’ for the purposes of s.35 LA 1980.

Case law

In Barnes v St Helens Metropolitan Borough Council [2006] EWCA Civ 1372and Page v Hewetts Solicitors [2012] EWCA Civ 80,it was concluded that for limitation purposes, time will cease to run upon the delivery of the claim form to the court office. The decisions assume that this will include...

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