Bhatti v Asghar (2016)
Bhatti v Asghar (2016)
The Issues:
In 2014, claims were issued seeking almost £1million arising from a failed real estate deal. Court fees of £1,920 and £1,115 were paid for the respective claims. Defences were filed, the timetable was followed and the matter was listed for trial in May 2016.
However, shortly before trial, the Defendants applied to strike out or obtain summary judgment, contending that the Claimant’s had deliberately underpaid the court fees when issuing and that meant that the proceedings were an abuse of process and given that the limitation period had expired, no valid claim had been brought in time.
Held:
The Defendants application was dismissed.
Firstly, the argument raised as to an “abuse of process” had no real prospect of success. The case differed from Lewis v Ward Hadaway as there was no suggestion that the court fee was underpaid as a deliberate tactic.
Secondly, as to the limitation argument, the Judge accepted that the Claimants had underpaid the court fees and acknowledged that there is a ‘clear principle’ that a claim will only be ‘brought’ for limitation purposes when the Claimant has done all that is in his power to set the proceedings in motion for the purposes of stopping limitation from running, that may involve obtaining the Court’s approval of their calculation of the correct fee at the court office where possible when presenting the claim form and the Particulars of Claim.
However, 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.
Comment:
While the Defendant did not successfully strike out the claim, it is clear that the courts will take a very strict approach to the question of whether a Claimant has done everything in his power to commence the claim for the purpose of limitation. Failure to pay the correct fee may result in the claim becoming statute-barred so always check the fee payable and if in doubt, pay the higher court fee, particularly where limitation is close to expiry.
