When is an application officially made?
Court deadlines can be tight and when rushing right up until the last minute to get an application submitted, the appropriate Court fee may seem like a trivial issue. However, as shown by a case we recently acted in, the failure to pay the correct Court fee when making an application can lead to significant consequences.
This was a claim for noise induced hearing loss. The claimant first instructed solicitors in March 2013. Proceedings were sent to the Court for issue on 15 March 2016 but were not in fact issued until 10 May 2016. The claimant therefore had until midnight on 10 September 2016 to serve proceedings.
Knowing that he was not in a position to serve proceedings in time, the claimant made an application for an extension of time for service on 7 September 2016, however, this was returned to him by the Court on 30 September 2016. He made a second application on 24 October 2016 but this was again returned on 2 November 2016. The claimant made a third application for an extension on 7 November 2016, which was sent back on 16 November 2016. He made a fourth application for an extension on 23 November 2016 which was granted by the Court. The issue with the previous applications had been that the claimant had not been paying the correct Court fee with his applications.
Upon service of proceedings we liaised with our co-defendants and all three defendants applied to strike out the claim on the basis that the claimant’s application to extend time for service of the claim form had been made after the expiry of time for serving the claim form under the Civil Procedure Rules. It was maintained in the circumstances that the claimant had not taken all reasonable steps to comply with CPR 7.5, in accordance with CPR 7.6 (3).
CPR 7.6 is concerned with how an application for an extension of time for service of the claim form is considered. The rules are stricter if an application is made outside of the time for service. We argued that a successful application for an extension for service of the claim form could only be made when the correct Court fee was taken, which is why the claimant’s application should have been dealt with under CPR 7.6(3) and not CPR 7.6(2) which would have been applicable if the application had been made within the four month period allowed for service of proceedings.
The Court agreed with the defendants’ application and after considering CPR 7.6(3) struck out the claimant’s claim. The claimant appealed the decision, although the appeal has now been withdrawn. As the claimant was funded by way of a Pre-Jackson CFA we were able to recover our costs from the claimant.
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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