Deoranee Boodia v Volodymry Yatsyna

A failure to pay a trial fee by the prescribed date triggers the automatic strike-out under CPR rule 3.7A1 where a valid fee notice has been given. A notice does not become invalid merely because it allows too much time for payment. The court may extend time, including of its own motion, and a procedural error will not invalidate a step unless the court so orders.

A listing notice, without the form or content of a judicial order, cannot itself reinstate a claim already struck out. However, relief from sanctions may be granted without a formal application where the court has the necessary material. The Denton approach applies. In assessing all the circumstances, the court should avoid a disproportionate result, particularly where the default caused no disruption or prejudice and the merits have already been tried.

Mrs Boodia issued two building-work claims against Mr Yatsyna. She did not pay the required trial fees by the dates in the original directions. The court later relisted the matters and she paid the fees by the later date stated in the relisting material.

The Barn claim proceeded to trial before District Judge Jarzabkowski, who held that time had retrospectively been extended and awarded Mrs Boodia damages. On Mr Yatsyna’s appeal, HHJ Luba QC held that both claims had automatically been struck out and could not be heard without a successful application for relief from sanctions.

Mrs Boodia appealed. The central issues were whether the fee notices were valid, whether the relisting notice reinstated the claims, and whether the Court of Appeal could grant relief from sanctions without a formal application.

1. Appeal allowed. The original trial-fee notices were effective. The expression in paragraph 2.1 of Schedule 1 to the Civil Proceedings Fees Order 2008, requiring payment at least 28 days before trial, did not import a requirement for 28 clear days. In any event, a notice which allowed too much time was an error of procedure capable of being cured under CPR rule 3.10, and the court could extend time under rule 3.1(2)(a), including of its own motion. Mrs Boodia’s failure to pay by the applicable date therefore caused automatic strike-out under rule 3.7A1.

2. The relisting documents of 3 and 25 September 2018 did not reinstate the claims. They neither named a judicial decision-maker nor had the form or content of an order. They did not state that the claims were reinstated or give the notice required for an order made of the court’s own initiative. Mere administrative listing could not have the substantive effect of reinstatement.

3. HHJ Luba QC was nevertheless wrong to hold that District Judge Jarzabkowski could only invite an application for relief. Rule 3.8 does not exclude the court’s general case-management powers. The court can grant relief from sanctions of its own motion, although that jurisdiction will usually be exercised rarely because evidence is ordinarily needed for the rule 3.9 assessment.

4. The applicable approach was the three-stage approach in Denton: seriousness and significance, good reason, and all the circumstances. Non-payment of a court fee is serious, but its seriousness varies. Here the non-payment was inadvertent; the court failed to notify Mrs Boodia of the strike-out; the first trial date was lost through lack of court time, not the default; the fees were later paid; neither party suffered relevant prejudice; and the Barn claim had been tried on its merits. Refusing relief would be grossly disproportionate and might leave the claims time-barred.

5. Relief was granted with retrospective effect. That preserved the validity of the Barn trial and reinstated both claims. Newey and Baker LJJ agreed with Lewison LJ.

• Court of Appeal (Civil Division): allowed Mrs Boodia’s appeal and granted retrospective relief from sanctions.

• County Court at Central London: HHJ Luba QC, on 19 November 2020, held that the claims had been automatically struck out and could not proceed without a successful application for relief from sanctions.

• County Court at Brentford: District Judge Jarzabkowski tried the Barn claim on 7 January 2019 and later determined that time for payment of the hearing fee had been extended, so that the claim was not struck out. She awarded Mrs Boodia £10,920 plus interest.