Barry Roy Peterson v Howard De Walden Estates Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eyre |
| Judgment Date | 28 April 2023 |
| Neutral Citation | [2023] EWHC 929 (KB) |
| Docket Number | Case No: KA-2022-000202 |
| Court | King's Bench Division |
[2023] EWHC 929 (KB)
Mr Justice Eyre
Case No: KA-2022-000202
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
David Green (instructed by Wiseman Lee LLP) for the Claimant
Mattie Green (instructed by Charles Russell Speechlys LLP) for the Defendant
Hearing date: 19 th April 2023
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:00am on 28 th April 2023.
Introduction.
On 23 rd March 2022 the Claimants sought to make an application for an order under section 48(3) of the Leasehold Reform, Housing & Urban Development Act 1993 (“the 1993 Act”) in the Central London County Court. 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 this the statutory deadline for making the application had passed. The Claimants applied for an order under CPR Rule 3.10 contending that there had been an error of procedure which the court had power to remedy under that rule. On 21 st September 2022 Recorder Hansen dismissed that application having concluded that he did not have jurisdiction under rule 3.10 in these circumstances. The Claimants appeal from that decision with leave of the recorder.
The issue to be determined can be stated shortly namely whether a failure to pay the fee necessary to cause a claim form to be issued is an error of procedure within the scope of rule 3.10 and so an error which the court has power to remedy.
The Legislative Framework .
Section 39 of the 1993 Act gives the qualifying tenant of a flat the right to acquire a new lease. Section 42 provides for the tenant to give notice of his or her wish to exercise that right and by section 45 there is provision for a counter-notice from the landlord.
Section 48 addresses the situation where the parties have been unable to agree on the terms of a new lease or where the terms have been agreed but a new lease has not been entered. It is the latter which was the position here and that circumstance is provided for as follows at subsections (3) – (6):
“(3) Where –
(a) the landlord has given the tenant such a counter-notice or further counter-notice as is mentioned in subsection (1)(a) or (b), and
(b) all the terms of acquisition have been either agreed between those persons or determined by the appropriate tribunal under subsection (1),
but a new lease has not been entered into in pursuance of the tenant's notice by the end of the appropriate period specified in subsection (6), the court may, on the application of either the tenant or the landlord, make such order as it thinks fit with respect to the performance or discharge of any obligations arising out of that notice.
(4) Any such order may provide for the tenant's notice to be deemed to have been withdrawn at the end of the appropriate period specified in subsection (6).
(5) Any application for an order under subsection (3) must be made not later than the end of the period of two months beginning immediately after the end of the appropriate period specified in subsection (6).
(6) For the purposes of this section the appropriate period is –
(a) where all the terms of acquisition have been agreed between the tenant and the landlord, the period of two months beginning with the date when those terms were finally so agreed; or
…”
It follows that where the terms of the new lease have been agreed but not implemented the window of time in which an application can be made opens two months after the date of the agreement and closes at the expiry of a further period of two months.
Section 53(1) provides thus for the consequences of a failure to make an application in the period provided for by section 48:
“(1) Where –
(a) in a case to which subsection (1) of section 48 applies, no application under that subsection is made within the period specified in subsection (2) of that section, or
(b) in a case to which subsection (3) of that section applies, no application for an order under that subsection is made within the period specified in subsection (5) of that section,
the tenant's notice shall be deemed to have been withdrawn at the end of the period referred to in paragraph (a) or (b) above (as the case may be).”
Section 1 of the Civil Procedure Act 1997 provides for there to be rules “governing the practice and procedure” to be followed in the civil division of the Court of Appeal, the High Court, and the county court. By section 2 the power to make those rules is given to the Civil Procedure Rule Committee.
The following rules are relevant for the purposes of this application.
CPR rule 7.2 which addresses the commencement of proceedings. Although an application under the 1993 Act is to be made by way of a Part 8 claim all were agreed that rule 7.2 remained the governing provision as to the commencement of the proceedings. This states:
“(1) Proceedings are started when the court issues a claim form at the request of the claimant.
(2) A claim form is issued on the date entered on the form by the court”.
By CPR Rule 3.9 the court has the power to grant relief from sanctions and then rule 3.10 provides:
“Where there has been an error of procedure such as a failure to comply with a rule or practice direction –
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error”.
By section 92 of the Courts Act 2003 the Lord Chancellor has power to make orders prescribing “the fees payable in respect of anything dealt with by” county courts. At the relevant time the applicable fees order was the Court Fees Order 2008 as amended.
The Factual Background .
The Claimants are the successors in title to the previous tenant of a flat at 8 Goodwood Court, Devonshire Street, London W1 and the Defendant is the landlord of that flat. The requisite notice and counter-notice under sections 42 and 45 were served and on 25 th November 2021 the parties agreed the terms of a new lease and that it should be granted to Ryan Peterson. Although that agreement was reached a new lease was not in fact granted.
The period for making an application under section 48 expired on 25 th March 2022 being the date four months after the making of the agreement.
On 23 rd March 2022 a representative of the Claimants' solicitors attended at the counter of the Central London County Court. That counter had been moved from its normal location because renovation works were under way and it is apparent that the move was causing some disruption to the normal running of the court counter. The court staff said that they were only accepting bankruptcy papers at the counter. The Claimants' solicitors representative nonetheless sought to deliver the application stressing the urgency of the matter and offering to pay the necessary fee either by way of the solicitors' PBA account or by use of a debit card. The court staff explained that the equipment to process such payments had not yet been transferred to the new location. They added that if the relevant papers were lodged in the court post box by 2.00pm they would be treated as having been received on that day.
It was in those circumstances that the Claimants' solicitors lodged in the post box a draft Pt 8 claim form for issue together with a covering letter in which they said:
“Please accept this letter as our authority for you to deduct the court fee of £308 using our account number … which is also stated on the claim form.”
£308 had previously been the applicable fee but there had been an increase to £332 in about September 2021. As a consequence of the solicitors' failure to authorise deduction of the appropriate court fee the court staff did not process the issuing of the claim form. Instead the claim form was returned to the Claimants' solicitors under cover of a letter of 24 th March 2022 which said:
“The new claim processing fee is £332 and not £308 so the court cannot process your new claim with the old fee”.
The Claimants' solicitors received that letter on 30 th March 2022 and the same day they drafted the application which ultimately came before the recorder. The application was issued on 31 st March 2022. The application notice sought an order under rule 3.9 granting relief from sanction but reference was made to rule 3.10 in the evidence in support where the court was asked to exercise “its discretion under CPR 3.10 to grant relief in this circumstance arising from an inadvertent clerical error that we have promptly applied relief for (sic)”.
The Claimants accept that in the circumstances I have summarised the section 48 application was not made within the period specified by section 48(5).
The Recorder's Judgment .
The matter came before Recorder Hansen on 29 th July 2022 and he handed down his judgment on 21 st September 2022.
At the hearing before the recorder it was common ground as it was before me that the material rule was rule 3.10 rather than rule 3.9.
The relief which the recorder was invited to make was an order under rule 3.10(b) to:
“a. “Validate the step taken of presenting the Part 8 Claim Form in the manner in which it was presented; and consequently,
b. To issue that claim form, with the deemed date of issue of 23 March 2022”.
At [25] the recorder noted that rule 3.10 could not be used to circumvent the requirements of...
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