Practice and procedure – Court fee – Procedural error – Claimant tenants seeking order for grant of new lease on agreed terms – Court declining to issue claim form because of failure to tender correct fee – Claimants applying for court order to remedy procedural error – Whether failure to pay necessary court fee being error of procedure within CPR 3.10 – Whether court having jurisdiction to make order to remedy error – Appeal dismissed
The claimants were the successors in title to the previous tenant of a flat at 8 Goodwood Court, Devonshire Street, London W1 and the defendant was the landlord. The claimants served notice on the defendant under section 42 of the Leasehold Reform, Housing and Urban Development Act 1993 seeking to exercise the right to acquire a new lease of the flat. The defendant served a counter-notice and the terms of the proposed new lease were agreed, but the lease was not granted.
Therefore, the claimants sought to apply to the court for an order under section 48(3) of the 1993 Act granting the lease on the agreed terms. The court declined to issue the application because the accompanying letter from the claimants’ solicitors had authorised deduction of a court fee of £308 whereas the fee in fact payable was £332. By the time the claimants’ solicitors had received the court’s letter informing them of the error, the statutory deadline for making the application had passed.
The claimants applied for an order under CPR 3.10 contending that there had been an error of procedure which the court had power to remedy under that rule. The recorder dismissed that application having concluded that he did not have jurisdiction under CPR 3.10 in the circumstances.
The claimants appealed against that decision with leave of the recorder. The issue to be determined was whether a failure to pay the fee necessary to cause a claim form to be issued was an error of procedure within CPR 3.10 which the court had power to remedy.
Held: The appeal was dismissed.
(1) CPR 3.10 had to be read as a whole and in its context. It was notable that the error made in this case was a failure to take a step which the Lord Chancellor had required to be taken before the court staff would issue a claim form. That strongly indicated that it was not an error of procedure within the meaning of CPR 3.10 which was a rule made by the Civil Procedure Rule Committee by virtue of its powers under the Civil Procedure Act 1997. In the absence of express words, it was difficult to read that Act as authorising the committee to empower the court to remedy an error consisting of a failure to comply with rules lawfully imposed by others. That was an indication that the error here was not an error of procedure for the purposes of CPR 3.10.
Rule 3.10 was to be read widely. Although the meaning of CPR 3.10 was not to be artificially restricted, it had to be ascertained by reading the rule as a whole and in context: It was located in Part 3 of the Civil Procedure Rules concerned with the court’s case management powers which were necessarily concerned with events after proceedings had been commenced.
(2) CPR 3.10(a) and (b) were to be seen as dealing sequentially with the consequences of such an error. Under (a), any step taken in the proceedings was not invalidated in the absence of a court order; and under (b), the court had power to make an order remedying the error. That reading accorded most naturally with the language used and with the structure of the rule and not least with the use of “and” between the two sub-paragraphs. That had significant consequences because the reference in (a) to the invalidity or otherwise of “any step taken in the proceedings” strongly suggested that the rule was concerned with errors made after the commencement of an action.
It was hard to envisage an error of procedure occurring before commencement which could arguably and even absent the saving provision of CPR 3.10(a) properly be regarded as having invalidated a step taken after such commencement. There were bounds beyond which, even when widely interpreted, the powers under CPR 3.10 could not extend. That rule could not be used to give effect to a claim which could not have effect as a matter of substantive law or by reason of a non-procedural rule. For the purposes of CPR 3.10, an “error of procedure” was to be seen as an error in the procedure established by the Civil Procedure Rules.
(3) Properly interpreted, an error of procedure for the purposes of CPR 3.10 was limited to an error in a procedure laid down by the Civil Procedure Rules or potentially by an equivalent procedural provision and it was not concerned with matters occurring before the commencement of proceedings (although it could be used to remedy defects of form in proceedings once commenced). It followed that the recorder was right to conclude that he did not have jurisdiction to grant relief and to dismiss the application: Steele v Mooney [2005] 1 WLR 2819, Re Osea Road Camp Sites Ltd [2005] 1 WLR 760, Mucelli v Government of Albania [2009] 1 WLR 276 and Jennison v Jennison [2022] EWCA Civ 1682; 25 ITELR 672 considered. Manolete Partners plc v Hayward and Barrett Holdings Ltd [2022] 1 All ER (Comm) 1293 distinguished.
Per curiam: The effect of the correct interpretation of CPR 3.10 was that there could be severe consequences in circumstances where there had been an inadvertent mistake as to the correct amount of the fee payable. However, parliament had chosen to say that if an application was not made within a particular period then the tenant’s notice under section 42 was deemed to have been withdrawn. In addition, parliament chose to make no provision for an extension of the period provided in section 48. The consequence was that at the end of the four-month period the landlord was entitled to proceed on the footing that there was no prospect of it being required to implement the agreement. In reaching that position parliament was to be taken to have balanced a number of considerations including the interests of tenants, the interests of landlords and the benefits of certainty. That balance having been placed at a particular point it was not for the courts to say that the result was unsatisfactory.
David Green (instructed by Wiseman Lee LLP) appeared for the claimants; Mattie Green (instructed by Charles Russell Speechlys LLP) for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Peterson and another v Howard de Walden Estates Ltd
