Is failure to pay the correct court fee on issue fatal?

In Hassan-Sudey v Siniakovich [2026] EWCA Civ 215, the Court of Appeal gave a detailed judgment clarifying rules regarding the issue of proceedings that will provide comfort to claimants following the recent judgment from the same court in Bali v 1-2 Couriers. As discussed in our recent analysis, a strict approach was taken in Bali to applications to extend time for service of claim forms after expiry of the four month period for service.

In Hassan-Sudey the claimant waited until the last moment to issue defamation proceedings with the limitation period expiring only a day later.  As in Bali it was confirmed that, for the purpose of the Limitation Act 1980, the claim was commenced when it was delivered to the court rather than the date the court sealed the claim form. It was confirmed that it would be unfair to claimants if the date of commencement/issue was not the date of delivery to the court.

The solicitor paid a fee of £10,000 to the court, calculated according to the money claim of £370,000, but was required to pay an additional £626 because of a non-monetary claim for aggravated damages and a declaration. The court rejected the electronic filing of the proceedings as the appropriate fee had not been paid, at which point the solicitor immediately paid it.

The judgment

In the lead judgment of Lady Justice Andrews, the court overturned the original decision of the High Court judge, finding that delivering the claim to the court despite a failure to pay the correct fee meant that the action/claim had been brought for limitation purposes.

The detailed judgment is worthy of close reading as it helpfully analyses previous conflicting decisions on this important issue.

The court considered different examples including an understandable innocent mistake, deliberate underpayment, a claimant seeking help with fees to be paid and attempting to issue proceedings without paying any fee. 

The defendant argued that the court should draw a distinction for limitation purposes between circumstances where the court had made a mistake as compared to the claimant’s solicitor. The court was not persuaded and found that in a case where the value of the claim has been understated on the face of the claim form, whether deliberately or otherwise, the court may not be in error in issuing the claim form, even though the correct fee was not paid. 

Underpayment and its rectification have no impact on the date of issue which is decided solely by when the claim is delivered to the court. The court said that it was one thing to miss a deadline for filing which would generally be “inexcusable”, but this was quite different from making a mistake about the payment of a fee, which could easily occur. Fees may have increased or there may be a lack of appreciation that a claim for further or other relief attracts an additional cost. There is also scope for litigants in person to make an error of this nature.

In conclusion the court found that any delay in processing the claim form, even if it is attributable to the failure to pay the correct fee, is immaterial for the purpose of limitation, and the risk of being time barred by reason of the shortfall in payment does not fall on the claimant.  If a fee is proffered or paid (as it must be for documents to be filed electronically), or a help with fees form is lodged, the action is brought when the claim form is received from the court office.

It therefore seems that all forms of underpayment of the court fee will not create a problem for the claimant where the claim form has been received in the court office prior to the limitation date. 

The court warned that this does not give carte blanche to make deliberate underpayments or to buy additional time by deliberately underpaying. In such cases, if the claim has been deliberately undervalued to avoid payment of the correct fee, there were other sanctions. These included, in particularly egregious cases, striking out the claim.

The court put off dealing with a scenario where there was an attempt to issue a claim with no fee paid or proffered and no application for fee remission. This was very unlikely to occur because it is impossible to deliver documents electronically to the court without lodging an application for fee remission or payment of some fee. 

Practice points

1. The Court of Appeal has provided much needed guidance in this important area. It is now clear that the date that the claim form is received by the court is sacrosanct. If the claimant delivers the claim form to the court prior to the limitation date, the defendant cannot argue that the claim has not been brought for the purpose of the Limitation Act. This is regardless of there being a delay resulting in the claim form not being sealed until after limitation or the court refusing to process the claim because an incorrect fee has been paid.
2. It is not open to the defendant to argue that the claim is statute barred by virtue of limitation, even in scenarios where the claimant has deliberately understated the value of the claim to avoid paying the proper court fee. In such cases the court has sanctions to penalise. It would only be in the most egregious case where the court would likely exercise its discretion to strike out the claim.
3. The court has provided clarity and a common-sense approach so that claims properly brought in time can proceed and the claimant is not at the mercy of administrative errors made by the court regarding the processing of the case or mistakes made innocently or deliberately concerning the correct court fee.