Penfold v Fuller

For court-fee purposes, the claimant is the person making the claim presently before the court, rather than necessarily the person named as claimant in the original claim form. This interpretation applies where later proceedings formally continue earlier proceedings but concern enforcement of a different substantive claim. The interpretation is reinforced by the sanction for non-payment: the party who must pay the fee is the party whose claim is liable to be struck out. Historical party descriptions and the order in which statements of case are served do not determine liability.

The parties were siblings who had compromised proceedings concerning the sale of inherited property by a Tomlin Order. The agreement required Mrs Penfold to purchase Mr Fuller’s interest for £500,000 and pay £15,000 towards his costs. Mrs Penfold failed to complete, and Mr Fuller applied for orders enforcing the agreement and seeking specific performance.

The proceedings were placed in the dismissal list after fees under the Civil Proceedings Fees Order 2008 were not paid. The issue was whether those fees were payable by Mrs Penfold, who remained identified procedurally as claimant, or by Mr Fuller, who had initiated the enforcement claim.

The court held that Mr Fuller, rather than Mrs Penfold, was liable for fees 2.2 and 2.3.

1. The definitions in Civil Procedure Rules r. 2.3(1) apply when interpreting the Civil Proceedings Fees Order 2008. A claimant is the person who makes a claim, and a defendant is the person against whom a claim is made.

2. In proceedings containing a later or continuing phase, the relevant claimant is the party making the substantive claim presently before the court. It is not necessarily the party named as claimant in the original claim form.

3. Civil Procedure Rules r. 3.7 confirms that interpretation. The fee notice is served on the claimant, and non-payment results in the claimant’s claim being automatically struck out. Liability therefore follows the party whose current claim is at risk of that sanction.

4. The original claim had been settled by the Tomlin Order. The current proceedings were initiated by Mr Fuller to enforce the settlement and obtain specific performance. Mrs Penfold’s continued description as claimant, and the fact that she was ordered to plead first in response to the enforcement claim, were historical or procedural matters and did not alter the substantive analysis.

5. The fact that Mr Fuller paid the fees to prevent the proceedings being struck out supported the conclusion. The liability to pay fees 2.2 and 2.3 therefore rested on Mr Fuller.