Butters & Anor v Hayes

For the purposes of section 35 of the Limitation Act 1980, non-payment of a court fee does not of itself prevent a new claim from being made by amendment in existing proceedings. Once made within the limitation period, the new claim does not subsequently become time-barred because the requisite fee was unpaid.

The new claim is made when the amended document is filed at court or served on another party, whichever occurs first. It is not made merely when permission to amend is granted. The rules governing new claims differ from those governing the commencement of an original action.

The respondent brought harassment proceedings against the appellants in 2005. In July 2011, pursuant to an order granting permission to amend, he filed amended particulars alleging a further 120 acts of harassment. The appellants later contended that an additional court fee should have been paid and that, because it was not paid, limitation continued to run against the new claims.

His Honour Judge Hellman rejected a strike-out application. On appeal, Falk J held in [2019] EWHC 3850 that the amended claims related back under section 35 of the Limitation Act 1980 and were not invalidated by any failure to pay the correct fee. The appellants appealed on the issue whether non-payment meant that the amended claims had become statute-barred.

1. Appeal dismissed. The amended claims were made within the limitation period. Whether or not an additional fee was payable, non-payment did not cause limitation to continue running against them.

2. Section 35(1) of the Limitation Act 1980 treats a new claim made during an existing action as a separate action commenced on the same date as the original action. Neither that Act nor the Civil Procedure Rules provides that an amended claim is not made unless the appropriate fee has been paid. Fees orders are not rules of court for this purpose because they are not made by the Civil Procedure Rule Committee.

3. A new claim introduced after service is made when the amended document is filed at court or served on another party, whichever occurs first. It is not made on the earlier date when permission to amend is granted. Falk J had therefore focused on the wrong date when treating the permission order as the making of the claim. That error did not affect the result because the amended particulars were filed within the limitation period.

4. The authorities concerning when an original action is brought under Part I of the Act did not govern the making of a new claim under section 35. An original action is brought in time if the court issues it within the limitation period, notwithstanding payment of an inadequate fee. Barnes and Page established that timely delivery to the court with a request to issue and the appropriate fee is also sufficient. They did not establish that payment of the appropriate fee is invariably necessary.

5. The court left open the position where an action is delivered in time but issued after limitation expires without the correct fee. It also left unresolved the treatment of calculated or abusive underpayments. Courts possess procedural sanctions for fee defaults and abuse without treating every affected claim as ineffective for limitation purposes.

6. The 2011 permission order had immediate effect unless and until set aside. It was neither void nor provisional merely because the proposed amendments had not accompanied the application. The respondent made the amendment in accordance with that order and the applicable rules.

Newey and Lewison LJJ agreed. Lewison LJ emphasised that the correctness of the fee had not been in issue in Page and that judgments should not be read as statutory texts on points which were not argued.

1. Court of Appeal (Civil Division): The appellants’ appeal was dismissed. The Court affirmed the conclusion that the amended claims were not statute-barred, while holding that the claims were made when the amended particulars were filed rather than when permission to amend was granted: [2021] EWCA Civ 252.

2. High Court, Chancery Appeals: Falk J dismissed the appellants’ appeal. She held that the amendments made new claims which related back under section 35 of the Limitation Act 1980, and that any non-payment of an additional fee did not cause limitation to continue running: [2019] EWHC 3850.

3. Trial: His Honour Judge Hellman found for the respondent on many alleged acts of harassment and rejected the appellants’ limitation-based strike-out application.