Valery Siniakovich v Nivin Hassan Hassan-Soudey & Ors

Lady Justice Andrews: INTRODUCTION

1. This is a case in which a catalogue of errors by the Claimant’s (“C”) solicitor shortly before the expiry of the relevant limitation period led to a successful application being made to the High Court for relief which it had no power to grant. This has generated costs and caused delay, both of which are inimical to the overriding objective. However, on the positive side, it has afforded an opportunity to address an issue of general importance which has been the subject of previous judicial consideration, but never determined by the Court of Appeal, namely, does the failure to pay the correct fee for issue of the claim form mean that an “action” is not “brought” for limitation purposes when the claim form is received in the court office? In this judgment, I will adopt that formulation, which adheres to the language of the Limitation Act 1980 , rather than referring to the time at which a “claim” is brought, a paraphrase used in the judgment below, and in some of the cases.

2. For reasons that I will explain, I would answer that question “no”. Background

3. The Second and Third Defendants to these proceedings for, among other things, defamation and malicious falsehood, (“D2 and D3”) appeal against the order of Ms Susie Alegre, sitting as a Deputy High Court Judge, (“the Judge”) dated 23 May 2025 (but made following a hearing on 21 May) (“the Order”) paragraph 4 of which purportedly granted C’s claim for relief pursuant to CPR r.3.10 and/or what is now CPR r.3.1(2)(p) (previously CPR r.3.1(2)(m)), to treat the claim as having been issued on 27 March 2025, referred to in the Order as “the Backdating Application”. The Order further stated in paragraph 5 that: “the Court deems the claim to have been brought on 27 March 2025”.

4. Both parties to that appeal have instructed fresh counsel, Mr David Lemer for C and Mr Aidan Wills for D2 and D3. The First Defendant (“D1”), who is a litigant in person, appeals against the Order on different grounds. She did not appear at the hearing of the appeals, but set out her position very clearly in a document entitled “Grounds of Appeal” dated 10 June 2025. We have read that document and the bundle of documents entitled “Fresh Evidence bundle” on which D1 seeks to rely.

5. Section 4 A of the Limitation Act 1980 provides that no action for libel, slander, or malicious falsehood “shall be brought after the expiration of one year from the date on which the cause of action accrued.” The publications complained of by C were made on 28 March 2024 and 5 April 2024 respectively; those dates are specified in the Particulars of Claim. The limitation period for an action for malicious falsehood expired on the first anniversary of each publication, the latest date being 5 April 2025. However, under the “single publication rule” set out in s.8(3) of the Defamation Act 2013 , the cause of action for defamation was treated as having accrued for limitation purposes on 28 March 2024, the date of the first publication. The date of publication is not counted, so the limitation period expired on the first anniversary of that publication, 28 March 2025.

6. The claim form stated: “The claimant brings this action for defamation (slander and libel), malicious falsehood” and other causes of action. It referred in general terms to false allegations made by D1 “in late March 2024” which were then “published and further disseminated” by D2 and D3. The endorsement continued as follows: “the Claimant seeks damages for damage to reputation, exclusion from vital services, mental distress and financial loss” The value of the claim was stated to be £370,000 plus costs. There was no claim for any other type of relief on the face of the claim form.

7. However, the Particulars of Claim, settled by counsel then instructed (though they do not bear his name), and signed by C personally on 26 March 2025, adumbrated the relief sought by C in Paragraph 27. Paragraph 27(1) claimed damages, including aggravated and special damages. Paragraph 27(2) claimed a final injunction preventing the Defendants from further publishing or republishing the defamatory allegations. In paragraph 27(3) C made a claim for the issue of a retraction and an apology, to be notified to those to whom the publication was made, in terms to be approved by the Court. In paragraph 27(4) he claimed a compliance order under That claim for relief is misconceived. The court has no power to order an apology. If the defendant does not agree to publish a retraction or correction, the most it can do is order publication of a summary of its judgment pursuant to s.12 of the Defamation Act 2013 : see the discussion in Quinton v Peirce [2009] EWHC 192 (QB) ; [2009] FSR 17 at [88]–[90] and Duchess of Sussex v Associated Newspapers Ltd [2021] EWHC 510 (Ch) ; [2021] EMLR 15 at [46]ff. section 167(2) (b) of the Data Protection Act 2018 .

8. C’s solicitor paid a fee of £10,000 to the court office calculated solely on the basis of the money claim for £370,000. There is no dispute that this was the appropriate fee if there had only been a money claim. She then attempted to file the claim form and Particulars of Claim by CE-File on 27 March 2025 – the day before the limitation period for the action in defamation expired.

9. On 7 April 2025, a court clerk notified C’s solicitor by CE-File that the filing had been rejected on the basis that the appropriate court fee had not been paid, because the Particulars of Claim included a claim for an injunction, which attracted an additional fee of £626 because C was making a non-monetary claim as well as a monetary claim. The notification gave the solicitor instructions as to how to add that fee upon resubmission.

10. The solicitor immediately paid the £626 and resubmitted the claim form and Particulars of Claim via CE-File. On the same date (7 April 2025) she filed an application for relief under CPR r.3.10 and/or CPR r.3.1(2). The relief sought was “to treat the claim as having been issued on the original date of submission on 27 March 2025, or to otherwise permit retrospective issue. ” (My emphasis). This application was supported by a witness statement from the solicitor, in which she said: (i) that she submitted the claim seeking damages and injunctive relief via CE-File on 27 March 2025 (para 3) (emphasis added); (ii) that this was within the limitation period (para 12); (iii) that she believed at the time that all necessary steps had been completed to effect issue of the claim form (para 4); (iv) that an N244 application notice and supporting documents for the injunction were omitted unintentionally (para 8); (v) that her failure to pay the additional fee was “the result of an administrative and technical oversight and due in part to the lack of any automated system flag or notification within CE-file to identify the missing injunction material or fee” (para 11); and (vi) that the “administrative oversight” was contributed to by various health conditions from which she was suffering, including stress (para 5).

11. The reference to an N244 application notice could only be a reference to an application for an interim injunction. This is borne out by the fact that, again on 7 April 2025, C’s solicitor filed an application notice seeking an injunction restraining all three Defendants “from further publications of seriously defamatory material pending determination of the claim”. This application was supported by a witness statement from C, signed and dated 7 April 2025. In paragraph 20 of that witness statement, C requested the court to treat the claim as issued on the original submission date, or to grant relief under CPR r.3.10 and/or CPR r.3.1(2)(m). There was no suggestion in either witness statement that C had not intended to seek a final injunction, or that any mistake was made in the Particulars of Claim. Nor was there any suggestion that the Particulars of Claim should not have been filed with the claim form.

12. The claim form was sealed and issued by the court office on 8 April 2025. So were the two application notices. Both applications were intended to be made without notice to the Defendants. There was no good reason for this, particularly as there was no evidence of any repeat publication (or threat of any repeat publication) in the time which had elapsed since the publications complained of. Unsurprisingly, therefore, on 16 April 2025 Mr Aidan Eardley KC, sitting as a Deputy High Court Judge, made an order for directions on the papers which directed that both applications be heard inter parties. They were subsequently listed for hearing by a judge sitting in the Media and Communications List on 21 May 2025.

13. In his reasons for making that order, Mr Eardley KC pointed out that time stops running for limitation purposes once an action is “brought”, not when a claim form is issued by the court, and observed that: “it may be that the claim was brought in time”. He said that if that was the wrong analysis, and C sought to invoke the Court’s discretion in order to be able to rely on allegedly defamatory or false and malicious publications made more than one year before the issue of the claim form, that was a matter of significant importance to the Defendants, who might lose a limitation defence, and therefore they had the right to be heard.

14. C’s solicitor was notified of the hearing date on 28 April 2025, and she notified D2 and D3 on 30 April. However she took no steps at that stage to notify D1, who had not yet acknowledged service of the claim form. D1 acknowledged service on the following day, 1 May, and C’s solicitor became aware of this on 2 May 2025.

15. On 16 May 2025, C made an application for permission to withdraw the application for an interim injunction, supported by a witness statement from C’s solicitor. She said that the application for interim relief had been made in good faith to protect C’s position, but that C had reviewed the circumstances and determined that the issues giving rise to the application were no longer present because “the Defendants have ceased the conduct complained of.” The witness statement indicated that D2 and D3 were aware of, and did not oppose the application to withdraw, provided that their costs occasioned by the withdrawn application were paid by C. That application was also listed for hearing on 21 May.

16. On 19 May 2025, two days before the date fixed for the hearing of the applications, C’s solicitor served a supplemental witness statement, which she stated was in support of a claim by C for relief from sanctions under CPR r.3.9 (though no such application had been made.) She said that due to her various health issues (of which she provided more details, with supporting medical evidence) she was “not able to fully function” in March-April 2025, and that she had not read the Particulars of Claim settled by counsel and did not know they included a claim for injunctive relief. The correct fee had been paid by reference to the money claims in the claim form, which did not seek injunctive relief, and the claim form should not have been rejected because of the “administrative oversight and failure to include the application notice for injunctive relief and the additional fee for it.” She contended that “the claim” had been “brought” within the limitation period and that the rejection of the claim form was manifestly unjust.

17. Pausing there, the solicitor’s evidence is muddled. The reason why the claim form was initially rejected had nothing to do with the non-payment of a fee for an application for interim injunctive relief which had not been made (nor even intimated) at the time when the claim form and Particulars of Claim were filed. It was rejected because C’s claim (which the court office treated as being encompassed in the claim form and Particulars of Claim read together) included claims for non-monetary relief, for which an additional fee was payable in order to issue the claim form.

18. At the hearing on 21 May 2025, C’s counsel (not the person who settled the Particulars of Claim) raised a previously unheralded argument that it had not been intended to include a claim for an injunction in the Particulars of Claim, and that therefore the correct fee had been paid and/or that relief from sanctions should be granted pursuant to CPR 3.9.

19. In response, counsel then appearing for D2 and D3 submitted that the Court had no jurisdiction to grant the relief sought in the Backdating Application, relying on Peterson v Howard de Walden Estates Ltd [2023] EWHC 929 (KB); [2023] 1 WLR 3057 (“ Peterson ”). In that case, Eyre J had held that CPR r.3.10 could not be used to remedy a failure to pay the correct court fee needed to initiate proceedings. That failure was not an “error of procedure” within the scope of that rule; the requirement to pay the fee emanated from a statutory instrument and not from the CPR, and in any event CPR r.3.10 is only concerned with errors made after the commencement of an action. CPR r.3.9 was inapplicable, as there was no sanction from which relief was being sought. Counsel for D2 and D3 also submitted that the facts before the Court did not support her opponent’s submission that there had been no intention to claim an injunction.

20. In her Judgment, which was delivered ex tempore at the hearing, the Judge did not address the jurisdictional arguments. She rejected the submission that the fee paid was incorrect and found that “the root of the issue came from the Claimant’s solicitor’s decision to file the Particulars of Claim at the same time as the claim form, without checking that the Particulars of Claim were accurate ” (my emphasis) [15]. She referred to the fact that on 7 April 2025 the claim form which was re-filed was the same as the one which was filed on 27 March, and did not include a claim for injunctive relief, and that an N244 seeking injunctive relief was filed on 7 April, though subsequently that application was withdrawn. She said that the “fee for the claim form effectively remained at £10,000, while the fee for the N244 claim was the additional fee related to the injunctive relief. ” She then said: “ on that factual basis the claim can properly be considered to have been brought on 27 March 2025” [17] (again, my emphasis). However, for completeness, she would go on to consider whether or not to exercise the Court’s discretion under CPR r.3.9.

21. Addressing the 3-stage test in Denton v White [2014] EWCA Civ 906 ; [2014] 1 WLR 3926 , the Judge found there was a serious and significant error, but: “it was not in relation to incorrect court fees, it was in relation to incorrect pleadings which C’s solicitor had filed “ precipitously and unnecessarily alongside the claim form ” [19]. The error was in “ the inclusion of the Particulars of Claim and the claim for injunctive relief in the Particulars of Claim,” while the claim form itself and the fee paid on 27 March were correct [24]. The application for backdating should be allowed “to reflect the factual reality that the claim was brought within the limitation period, on 27 March 2025” [24], and “ the pleadings were submitted in error and the claim was brought in time” [26]. (Again, my emphasis).

22. The effect of the Order was to deprive all the Defendants of a potential defence to the claims for defamation and malicious falsehood under s.4 A of the Limitation Act 1980 . The limitation period had already expired by the time that the solicitors received notification from the court office on 7 April 2025 that they had not paid the correct fee. The remaining causes of action have a six-year limitation period and are unaffected by the Order.

23. No application has ever been made by C for the Court to exercise its discretion under s.32 A of the Limitation Act 1980 to direct that the time limit under s.4 A of the Act should not apply to the claims for defamation and malicious falsehood. No explanation for that failure has ever been put forward.

24. Four grounds of appeal are raised by D2 and D3, namely: i) The Judge had no jurisdiction to grant the relief sought; ii) The Judge made a material error of law; iii) Serious procedural injustice; and iv) The Judge made a key finding of fact that was perverse and which lacked any proper evidential basis.

25. The primary ground of appeal in D1’s appeal is that she was not notified of the date of the hearing of C’s application, and thus she was denied the opportunity to attend and make representations. She also contends that the Judge’s decision is inadequately reasoned.

26. Permission to appeal was granted in both appeals by Phillips LJ, who granted a stay of the proceedings in the High Court pending the determination of the appeals, and directed that the appeals be expedited and heard together. The First Defendant’s appeal

27. The acknowledgement of service (“AoS”) filed by D1 on 1 May 2025 gave a postal address for service of documents about the claim; no email address was provided. She was served with the claim form and Particulars of Claim at that postal address. On 16 May 2025 she filed Particulars of Defence which raised the primary defence of time bar under s.4 A of the Limitation Act 1980 , referred to the directions order of 16 April 2025, and also stated, at [9], that the hearing date for C’s time bar (i.e. Backdating Application) and injunction applications had not been listed. As far as D1 was aware, that was the position.

28. D1 only discovered that the hearing had already taken place when she was told about it by D2 and D3’s solicitor during a phone call. She immediately contacted C’s solicitor to request an explanation. The solicitor informed D1 that because of her lack of engagement with the proceedings at an earlier stage (before she filed her AoS) she had “inadvertently” not copied the listing clerk’s email to her.

29. The solicitor subsequently told D1 that her firm had obtained an email address for her from a private investigator, and on 16 May 2025 they had sent emails to that email address concerning C’s application to withdraw the injunction application. C’s solicitor claimed that because the covering letter sent on that occasion referred to the date of the hearing on 21 May, this was sufficient notice to D1. However, D1 never received the emails. That address is not D1’s email address and even if it were, this would not have been an appropriate means of communication with her. C’s solicitor should have sent all documents to the address for communication designated in the AoS. Her failure to do so has not been explained.

30. In his oral submissions, Mr Lemer very fairly accepted that D1 was not served with notice of the hearing by C’s solicitor, and that communications which might have alerted her to the date of the hearing were sent to an email address which was not provided in the AoS. However, he submitted that there was no prejudice to D1, because all the substantive issues relating to the outcome of C’s Backdating Application had now been fully addressed by Mr Wills on behalf of D2 and D3.

31. D1 has established that there was significant and substantial procedural unfairness in her case. C’s solicitors were responsible for notifying her of the hearing date, and they failed to do so. There is no excuse for that failure, which led to her being deprived of the very opportunity to appear and make representations to the court which the order for directions was intended to give her. On the face of it, her appeal should succeed on Ground 1. There is therefore no necessity to go on to consider Ground 2, although I have considerable sympathy with the criticisms made of the Judge’s reasoning.

32. I shall consider the consequences of my conclusions about D1’s appeal after I have addressed the issues arising in the other appeal. The Second and Third Defendants’ appeal

33. A Respondent’s Notice in D2 and D3’s appeal was served on C’s behalf on 29 July 2025, seeking to uphold the Order for different or additional reasons. However, in the light of the way in which the arguments in D2 and D3’s appeal were developed orally at the hearing before us on 18 December 2025, the Court considered that the grounds articulated by Mr Lemer were very different from those set out in that document and addressed in the Respondent’s skeleton argument, both of which were settled by C’s solicitor.

34. Mr Lemer contended that on a proper analysis, the action was brought for limitation purposes on 27 March 2025, regardless of whether the correct fee was paid when the unsealed claim form and Particulars of Claim were received by the court office (though he submitted that the correct fee was paid and the filing on 27 March should not have been rejected). The court had jurisdiction to declare that the action was brought in time, and in substance that is what the Judge did. Of course, as Warby LJ pointed out at the hearing, if that analysis were correct, there was no need for C to have made the Backdating Application.

35. Mr Wills understandably protested about the unfairness of having to meet a new case at the hearing of his clients’ appeal, without being given any forewarning. On the other hand, Mr Lemer’s submissions raised important issues of wider application, which were pure points of law, and Mr Wills had addressed those issues and at least some of the relevant authorities to an extent (though perhaps not to the extent he might have wished) in the course of his oral presentation of D2 and D3’s grounds of appeal.

36. The Court concluded that any prejudice could be overcome by affording D2 and D3 further time to consider the way in which C was now putting his case, and to make any further submissions they wished in response. However C’s new grounds for seeking to uphold the Order on a different or further basis needed to be put on a formal footing. Accordingly, we directed that a fresh Respondent’s Notice be served by 16 January 2026, together with any short further written submissions upon which C wished to rely in support of the grounds in that Notice, and those directions were complied with. We also directed that written submissions be filed in response by D2 and D3. They were received, in accordance with the Court’s directions, on 30 January 2026.

37. In consequence of these developments, it has become clear that the real issue of substance raised by this appeal is the one I identified in the introduction to this judgment, namely, whether a failure to pay the correct fee at the time when the claim form was received in the court office means that the action has not been “brought” on that date for the purposes of the Limitation Act 1980 (and any other statute of limitations). There is also an issue as to whether the court office was right to calculate the fee on the basis of relief claimed in the Particulars of Claim, but not in the claim form, when both documents were filed together and intended to be served together.

38. It is common ground that the High Court had jurisdiction to grant a declaration that the action was brought on 27 March 2025, or that it was brought in time for the purposes of s.4 A of the Limitation Act 1980 . However if that is what the Judge intended to do in paragraph 5 of the Order, reflecting the finding in the Judgment at [17] that “the claim can properly be considered to have been brought on 27 March 2025”, (repeated, in substance, at [21], [24] and [26]), she did not achieve it. When something is “deemed” to happen on a particular date, that means that it did not actually happen on that date, but it is to be treated as if it did.

39. Before turning to consider the two key issues identified above, I should say something about the grounds of appeal. As to the first ground, I agree with the point made in Mr Wills’ skeleton argument that the exact jurisdictional basis on which the Judge believed she was proceeding is not readily apparent from the Judgment, which contains no reasons for finding that there was jurisdiction to grant the Backdating Application or to make a ruling that the action was deemed to have been brought on an earlier date than it actually was (which implicitly assumes it was “brought” on 7 April and not 27 March).

40. Mr Wills correctly submitted that the court has no jurisdiction to backdate the date on which a claim form is issued , see Bali v 1-2 Couriers Ltd [2025] EWCA Civ 1413 (“ Bali” ). That was the only relief sought by C in the Backdating Application, though, as was pointed out in the 16 April 2025 order for directions, the date of issue is (and always was) immaterial. Despite that prompting, there was no attempt to amend the application for relief. For limitation purposes, the key date is the date when the action is “brought”, which may (and often does) pre-date the date of issue.

41. The court has no jurisdiction to change the date on which an action is brought, either; that date depends on what is required to “bring” an action, which is a matter of statutory interpretation, and whether those requirements have been satisfied. The court may have a statutory power to disregard or extend a limitation period which would otherwise apply, and such a power existed in the present case, but that power is altogether different, and has never been invoked in this case.

42. In the light of the decision in Bali , Mr Wills did not need to rely on Peterson , although I agree with Eyre J’s conclusion in that case that if the correct fee was not paid, CPR r.3.10 would not have empowered the court to relieve C from the consequences of such non-payment, e.g. by putting him in the position he would have been in if the correct fee had been paid. I note that Cobb LJ recently cited Peterson with approval when delivering the leading judgment in Gotti v Perrett [2025] EWCA Civ 1168 at [87], stating that: “the “error of procedure” in that case plainly occurred before the commencement of the proceedings, and the court rightly held that CPR r.3.10 could not come to the claimant’s aid.” He described Peterson as: “useful authority…for the proposition that CPR r.3.10 can be used… to remedy “defects of form in proceedings once commenced”.”

43. The general case management power under what is now CPR r.3.1(2)(p) is likewise irrelevant; it reflects the court’s inherent jurisdiction to make any order which is necessary for the court to act effectively in pursuit of the overriding objective. The legal consequences, if any, of a claimant’s failure to pay the correct fee for issue of the claim form are not matters of case management. It follows that the court had no jurisdiction to make the order that it did in paragraph 4 of the Order, and that part of the Order must be struck out.

44. The Judge was also wrong to consider CPR r. 3.9 and purport to apply it. This was not only because there was no formal application for relief from sanctions before her (it was simply not good enough for C’s solicitor to try and make such an application informally in a supplementary witness statement served two days before the hearing, without giving the Defendants any practical opportunity to respond to it). C was not facing a “sanction” for failing to abide by a court order, rule or practice direction: see Peterson , and Birss LJ’s analysis of the circumstances covered by CPR r.3.9 in Yesss (A) Electrical Ltd v Warren [2024] EWCA Civ 14 , especially his helpful summary at [33]. Even where a practice direction specifically requires a fee to be paid when filing a document (as PD 51O does when filing a claim form electronically, see [57] below) there is no sanction for non-compliance; the only procedural consequence of a failure to pay the correct fee is that the court will refuse to accept the filing, the claim form will not be issued or treated as issued, and the person concerned will have to pay the correct fee and re-file the documents. The adverse consequences of any failure to bring the action within the period prescribed under s.4 A of the Limitation Act 1980 arises from the application of those statutory provisions, not the rules of court.

45. Mr Wills addressed the three remaining grounds of appeal together, as they were inextricably linked. He submitted that the Judge was wrong in law and in fact to find that the “correct fee was paid” because she ignored the non-money claims which were part of the relief sought in the Particulars of Claim which C chose to file with the claim form, and which Mr Wills submitted were intended to and had to be read together with it. Irrespective of whether it had been intended to make the claim for a final injunction, the claim for the compliance order pleaded in the Particulars of Claim was indubitably a non-money claim, and the court office was right that an additional fee was payable before the claim form could be issued. The correctness of those submissions ultimately depends on the resolution of the second issue I have identified at [37] above, but insofar as the finding that the correct fee was paid depends on the Judge’s implicit finding that it had only ever been intended to make a money claim, it was founded on a false premise.

46. Mr Wills contended that the Judge was not entitled to make the findings, which appeared to be central to her analysis, that the error was in filing Particulars of Claim with an “incorrect claim for injunctive relief” at the same time as the claim form, and that the Particulars of Claim were “inaccurate”. That necessarily implied that there was no intention to include the claim for an injunction in the Particulars of Claim, (and thus that it was only ever intended to claim damages, as appeared on the face of the claim form). There was equally no basis for finding that the decision to file the Particulars of Claim with the claim form (instead of filing and serving them later) was an error. There was no evidence to support these findings, which depended entirely upon submissions made at the hearing by C’s then counsel, who could not give evidence; it was procedurally unfair to allow that new case to be run without any forewarning to the Defendants; and in any event the findings were perverse, as they flew in the face of the evidence before the court.

47. Mr Wills pointed out that in her very first witness statement, C’s solicitor had expressly acknowledged that she filed a claim seeking damages and injunctive relief on 27 March 2025, and there was no suggestion that this was a mistake. Moreover, whether it was intended or not, the fact remained that a claim for a final injunction was pleaded in the Particulars of Claim and they were filed at the same time as the claim form, both initially and on 7 April 2025. It is irrelevant that it would have been open to C to file the Particulars of Claim separately and later, and that the solicitor would have paid the correct fee if that course had been taken.

48. I accept those submissions. Whilst the circumstances in which this Court will interfere with fact-findings made by a judge in a lower court are relatively rare, I regret to say that I have concluded that these findings were “plainly wrong” in the sense explained by Lewison LJ in paragraph 2 of his judgment in Volpi v Volpi [2022] EWCA Civ 464 ; [2022] 4 WLR 48 . They were unsupported by, and in many respects contrary to, the evidence. C’s solicitor seemingly confused the alleged shortfall in the fee for issue of the claim form with the fee for issuing an application notice for interim injunctive relief. However, she did not suggest that it was never intended to seek an injunction, or that the claim for a final injunction was included in the Particulars of Claim by mistake, or that it had only ever been intended to seek an interim injunction and not a final one (which in this context would have made little sense). All she said was that she did not realise at the time that the Particulars of Claim included a claim for injunctive relief, because she had not read them before she filed them on 27 March 2025. It could not be inferred from this that, had she read them, she would not have filed them, or that she would have filed them later - particularly as they were re-filed with the claim form on 7 April after the additional fee was paid, without any amendment.

49. On the evidence before the court, C had always intended to seek an injunction restraining repeat publication of the allegedly defamatory statements, including (but not limited to) an interim injunction pending trial. C had signed the Particulars of Claim endorsed with a statement of truth, and even if his solicitor had not read them, one must assume that he did. Moreover, when they decided to withdraw the application for interim relief, neither C nor his solicitor said that they had never intended to seek an injunction. On the contrary, they explained that C had changed his mind about pursuing the application for an injunction, because the perceived danger of re-publication no longer appeared to exist. Any decision to amend the Particulars of Claim to remove the claim for a final injunction has to be viewed in the light of that explanation.

50. For those reasons, irrespective of how the two issues arising from the new Respondent’s Notice are resolved, the complaints made by D2 and D3 about the judgment and the Order are fully justified. THE RESPONDENT’S NOTICE Issue 1 – How, if at all, does payment of the incorrect fee impact on the time when an action is “brought” for limitation purposes? A. The Civil Proceedings Fees Order 2008

51. The Civil Proceedings Fees Order 2008 (SI/2008/1053) (“the Fees Order”) expressly provides by paragraph 1(2)(d) that “expressions also used in the CPR have the same meaning as in these rules.” Paragraph 2 provides that “the fees payable in column 2 of schedule 1 are payable in the Senior Courts in respect of the items described in column 1 in accordance with and subject to directions specified in that column”.

52. Schedule 1 has been replaced by subsequent regulations from time to time. At the relevant time it provided that: 1.1 On starting proceedings … to recover a sum of money, where the sum claimed …(i) exceeds £200,000 or is not limited … (a) in the High Court £10,000 … 1.5 On starting proceedings for any other remedy… £626 Fees 1.1 and 1.5 Claims other than recovery of land or goods Where a claim for money is additional to a non money claim (other than a claim for recovery of land or goods) then fee 1.1 is payable in addition to fee 1.5. Fees 1.1 and 1.5 Amendment of claim or counterclaim Where the claim or counterclaim is amended, and the fee paid before amendment is less than that which would have been payable if the document, as amended, had been so drawn in the first instance, the party amending the document must pay the difference. B. The applicable procedural rules and practice directions

53. CPR Part 7 is entitled “How to start proceedings – The Claim Form.” It is supplemented by three practice directions, the first of which, PD7A, contains provisions of general application. CPR r.7.2 is also entitled “how to start proceedings”. It provides, so far as relevant: (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. Since the Fees Order provides that fees are payable “on starting proceedings”, it follows that the fees specified in Schedule 1 of the Fees Order are payable when the court issues the claim form. CPR r.7.4 provides that: (1) Particulars of claim must – a. Be contained in or served with the claim form; or b. Subject to paragraph (2) be served on the defendant by the claimant within 14 days after service of the claim form. (2) Particulars of claim must be served on the defendant no later than the latest time for serving a claim form.

54. PD7A provides, so far as is relevant, as follows: “6.1 Proceedings are started when the court issues a claim form at the request of the claimant (see rule 7.2) but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is “brought” for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date. 6.2 The date on which the claim form was received by the court office will be recorded by a date stamp either on the claim form held on the court file or on the letter that accompanied the claim form when it was received by the court. 6.3 An enquiry about the date on which the claim form was received by the court should be directed to a court officer. 6.4 Parties proposing to start a claim which is approaching the expiry of the limitation period should recognise the potential importance of establishing the date the claim form was received by the court and should themselves make arrangements to record the date.”

55. CPR r.16.2(1) contains the general rules as to what information should be included in the claim form. It provides, among other matters, that the claim form must: a. Contain a concise statement of the nature of the claim; b. Specify the remedy which the claimant seeks. Consequently, the claim for an injunction (and the other non-monetary relief sought) should have been included in the general endorsement on the face of the claim form as well as being pleaded in the Particulars of Claim. There has been no explanation of why this did not happen. However, r.16.2(5) allows the court to grant any remedy to which the claimant is entitled, even if that remedy is not specified in the claim form.

56. PD16 provides further detail about the information which must be included in a claim form and in the Particulars of Claim. Paragraph 3.1 of that Practice Direction states that: “if practicable, the particulars of claim should be set out in the claim form. If not, they may be served with the claim form or later, within the periods specified in rule 7.4 and 7.5.” A separate Practice Direction, PD53B, deals specifically with Media and Communications claims and specifies what should be included in the claim form and Particulars of Claim in such cases. Paragraph 1 of PD 16 provides that the event of inconsistency, the provisions of PD 53B will prevail. However nothing in PD 53B is of any relevance to the issues arising in this appeal.

57. PD 51O, in the form in which it appeared in March and April 2025, set out the Electronic Working Pilot Scheme which applied to the use of CE-File at that time. It provided, inter alia, as follows: “2.3 To file a document using Electronic Working, a party shall a. access the Electronic Working website address … b. register for an account or log on to an existing account c. enter details of a new case or use the details of an existing case d. upload the appropriate document and e. pay the appropriate fee. … 5.3 (1) Submission of any document using Electronic Working will generate an automated notification acknowledging that the document has been submitted and is being reviewed by the Court prior to being accepted (“the Acceptance”) (2) The court may make an order to remedy an error of procedure made while using Electronic Working, in accordance with CPR 3.10(b). When the court makes such an order, a document filing will not fail Acceptance because of the error of procedure made… … 5.4 (1) Where payment of a court fee is required to accompany the filing of a document, the date and time of filing on Electronic Working will be deemed to be the date and time at which payment of the court fee is made using Electronic Working. (2) The date and time of payment will also be the date and time of issue for all claim forms and other originating processes submitted using Electronic Working. … (5) The date and time of issue or the date and time of filing of a document submitted using Electronic Working will not be delayed by Acceptance, unless the submission fails Acceptance because the filing error is more serious than an error of procedure, or the Court orders that it has failed Acceptance for some other reason. (6) If the submission fails Acceptance, notice of the reasons for failure will be given to the party on that party’s Electronic Working online account and if the submission was of a claim form, appeal notice or other document requiring to be issued, it will be deemed not to have been issued. (7) In cases where payment of the Court fee has already been made and a claim form or other originating application fails Acceptance, the fee will be refunded and a corrected claim form or originating application will have to be submitted and the Court fee paid again in order for proceedings to be issued. In such cases, the new submission will generate a new date and time of issue or date and time of filing in accordance with paragraphs 5.4(1) to 5.4(3). Payment of fees 6.1 (1) Where any rule or practice direction provides for a fee to be paid, a party filing a document using Electronic Working must, except in circumstances specified in sub-paragraph (4), pay the appropriate fee by account or by credit/debit card or by any other online method specified by Her Majesty’s Courts and Tribunal Service. 6.2 A party who has applied or wishes to apply for Help with Fees or partial Help with Fees must contact the Court to obtain a Help with Fees payment by account number prior to using Electronic Working to issue a claim or to initiate other proceedings requiring the payment of a court fee.” C. Previous authorities

58. The statement in paragraph 6.1 of PD 7A (which used to be in paragraph 5.1 of that Practice Direction) was challenged as being an inaccurate representation of the law on limitation in Barnes v St Helen’s Metropolitan Borough Council [2006] EWCA Civ 1372 ; [2007] 1 WLR 879 . It was submitted that the claim form must be issued within the limitation period, because that is the point at which the proceedings are started. Tuckey LJ, with whom Arden and Lloyd LJJ agreed, identified the question for the court at [7] as being: “when a claim is “brought” for the purpose of the Limitation Act 1980 under the procedural regime introduced by the CPR. Is it on the date which appears on the claim form when the court issues it and the proceedings are started as provided by rule 7.2, or is it when the court receives the request to issue it?”

59. At [16] of the judgment, Tuckey LJ said this: “I start simply by looking at the words used in the statute and the Rules. I approach them by expecting to find the expiry of a limitation period fixed by reference to something which the claimant has to do, rather than something which someone else such as the court has to do. The time at which a claimant “brings” his claim form to the court with a request that it be issued is something he has to do; the time at which his request is complied with is not, because it is done by the court and is something over which he has no real control… The 1980 Act can perfectly properly be construed so that in the context of the CPR a claim is brought when the claimant’s request for the issue of a claim form (together with the court fee) is delivered to the court office. Paragraph 5 of the Practice Direction gives sensible guidance to ensure that the actual date of delivery is readily ascertainable by recording the date of receipt.”

60. He went on to explain that this construction of “brought” meant that a claimant would have the full period of limitation in which to bring the action and does not take the risk that the court will fail to process it in time. At [19] Tuckey LJ went on to say this: “I do not see that receipt of the claim form by the court office involves any transactional act. The court staff who receive the documents are not performing any judicial function and have no power to reject them. [Counsel] puts the extreme example of a form which does not name the parties or one which does not include a claim. If such forms were rejected, I suspect that the answer would be that the claimant had not delivered anything which could properly be described as a claim form.”

61. He found at [20] that the Practice Direction was correct, but added the following caveat: “What I have said however is confined to the situation contemplated by the Practice Direction, that is to say receipt by the court office of the claim form. This necessarily involves actual delivery by whatever means permitted by the Rules to the correct court office during the hours in which that office is open… That is what happened in this case. Different considerations might apply if delivery was made to the wrong place or outside office hours. They will have to be considered if they arise.”

62. The decision in Barnes was followed in Page v Hewitts Solicitors [2012] EWCA Civ 805 ; [2012] CP Rep. 40 (“ Page” ). In that case, the claim form and Particulars of Claim were allegedly sent within the limitation period by DX to the court office. The claimant’s solicitors alleged that the documents had arrived, but had been lost by the office, and that a cheque for the fees sent with them was never presented. Accordingly, they had to file a fresh claim form (accompanied by a fresh cheque). They contended that time stopped running for limitation purposes on the date when the original bundle was likely to have been received in the court office. The Court of Appeal reversed the decision of the Master (upheld by a judge) to grant the defendants summary judgment, on the basis that the wrong test had been applied. The correct test was whether the claimant had no real prospect of showing that the first set of documents had arrived in the court office. They remitted the matter to the Chancery Division for trial of a preliminary issue.

63. In the lower court, the debate had centred around whether the “claim form as issued” referred to in PD7A had to be the same piece of paper that was received by the court office within the statutory limitation period. Lewison LJ, who delivered the leading judgment in the Court of Appeal, said at [29] that this was the wrong subject matter to debate. The question of when an action is “brought” for the purposes of the Limitation Act 1980 is a matter of statutory construction, not a matter of construction of the rules or the Practice Direction. He quoted with approval what Tuckey LJ had said in Barnes at [16], describing the Practice Direction as “no more than sensible guidance,” and adding that: “one must not forget that proceedings can be started on line, and that the Practice Direction cannot apply to such cases.”

64. Lewison LJ considered that the policy which underpinned the decision in Barnes was one of risk allocation. He said that “the claimant’s risk stops once he has delivered his request (accompanied by the claim form and fee) to the court office.” He quoted a dictum of Eveleigh LJ in an unreported pre-CPR case, Aly v Aly (1 January 1984); (1984) 81 LSG 283, that: “It would indeed be surprising and harsh if a party who had done all that was required of him, should find himself unable to obtain the assistance of the court because the court itself had failed in some matter of procedure.”

65. Aly v Aly was a case in which the court was concerned with the meaning of the words “apply to the Court” in RSC Order 12 r.8, and held that it meant “doing all that is in your power to do to set the wheels of justice in motion according to the procedure that is laid down for the pursuit of the relief that you are seeking.” As Turner J observed in Liddle v Atha & Co Solicitors [2018] EWHC 1751 (QB) ; [2018] 1 WLR 4953 (“ Liddle”) at [48], the issue in Aly v Aly was whether the procedural consequences of the delay [by the court office in issuing the application notice] should redound to the prejudice of the party making the application, in that case, the defendant. As he put it, “the court was not applying a threshold of procedural perfection for the [applicant] to surmount”.

66. Lewison LJ also referred to the case of Riniker v University College London (unreported, 31 March 1999) (“ Riniker” ) in which a draft writ was received by the court office within the limitation period but wrongly returned to the claimant on the mistaken basis that it had not been properly endorsed. The Court of Appeal held that the court had an inherent jurisdiction to treat the writ as issued on the date on which the draft was received. Lewison LJ described the “underlying theme” of the previous authorities as being that “a would-be litigant is not responsible for any shortcomings of the court.”

67. When the preliminary issue of limitation was determined by Hildyard J, [2013] EWHC 2845 (Ch) (“ Page (No 2)” ) he found on the evidence that the claimant’s solicitors had failed to prove that the documents they claimed were sent in the DX had arrived in the court office. The solicitors then raised a new, alternative argument to the effect that the second set of documents were indubitably received in the court office on the final day of the limitation period, 6 February 2009. However, that was not the end of the story, because the court office identified on 10 February 2009 that there was a shortfall of £400 on the accompanying fee, and, following further correspondence, the shortfall was paid and the claim form was issued on 17 February 2009.

68. Hildyard J agreed that those documents were received within the limitation period, and on the face of it the action was brought in time. However, because the action had included a claim for an account, the cheque that accompanied them was not for the full fee payable. His interpretation of what Lewison LJ had said was that it was unfair to visit the risk of loss or delay on a claimant after he had done all that he could reasonably do to bring the matter before the court for its process to follow; and that what had to be established by the claimant was that they had delivered the claim form accompanied by the request to issue and an appropriate fee . (My emphasis). As the fee was not an appropriate fee, the solicitors had not done all that was required of them. They had left it too late to correct the error [within the limitation period] and therefore the claims were time-barred (even though the error had been rectified and the proceedings issued).

69. At [56] Hildyard J made this observation: “It is, in a way, concerning that the fate of a claim should depend upon the miscalculation by such a relatively small amount of a court fee. I have considered whether it is so de minimis that the court should not take it into account, or make some exception or allowance.” However, those concerns did not ultimately lead him to a different conclusion, possibly because he felt bound to apply what he believed to be the correct interpretation of Lewison LJ’s judgment in Page in the Court of Appeal.

70. That appears to be the only reported case in which the underpayment was spotted by the court office at the time, and although it was subsequently rectified, that occurred outside the limitation period and the claim form was also issued outside the limitation period. A number of subsequent cases in the High Court have considered the situation where the documents were lodged within the limitation period, but the value of the claim stated on the face of the claim form (which dictated the amount of the issue fee) was understated at the time of issue. The fee which was paid was that prescribed in Schedule 1 to the Fees Order for a claim of that type and value, and the claim form was issued.

71. In Lewis v Ward Hadaway [2015] EWHC 3503 (Ch) ; [2016] 4 WLR 6, Mr John Male QC, sitting as a Deputy High Court Judge, found that the understatement was deliberate and an abuse of the process of the court. He acceded to the defendant’s claim for summary judgment on the basis that the action was not “brought” within the limitation period. He found that the claimants had not done all that they reasonably could have done to bring the matter before the court for its process to follow.

72. Bhatti v Ashgar [2016] EWHC 1049 (QB) ; [2016] 3 Costs LR 493, concerned two actions where the claim form was issued well within the relevant limitation period, but it was subsequently discovered that there was a shortfall in fees. The claim form was endorsed with a money claim but also with a claim for “further or other relief” (which also appeared in the Particulars of Claim which were issued and served concurrently). Because of this, an extra sum was payable. The shortfall was overlooked by the court office. The underpayment of the fee was not deliberate. The defendants did not plead that the claims were time-barred. Very late in the day they brought applications to strike out the claims as an abuse of process, or for summary judgment on the basis that in consequence of the underpayment of fees the action had not been “brought” within the limitation period.

73. Warby J described the identification in Lewis of the underlying rationale of Page as a “gloss on the criterion identified in the Court of Appeal cases” but expressed a provisional view that the authorities appeared to identify “a clear principle that a claim is only brought for limitation purposes when the party concerned has done all that is in his power or to set the wheels of justice in motion.” He said that doing all that is in one’s power often, and perhaps ordinarily, involves proffering the correct fee to the court office at the same time as presenting the claim form. However, an action might still be “brought” in time if, for example, the wrong fee was paid in consequence of an error by the court in its calculation [34].

74. On the facts of the case Warby J found that there was an underpayment of the fees on issue, and that the limitation period for the pleaded claims in contract had since expired. The assessment of the correct fee must be based on the documents presented to the court at the time of issue , that is, the claim form and if available, the Particulars of Claim. One must take the claim to be as stated in those documents [35]. However, he declined to give summary judgment on the basis that the point was raised very late without reasonable excuse and the claimants had not had a full, fair and reasonable opportunity to canvass the issues arising from the argument. He gave permission to the defendants to amend the defence to plead limitation, and left the time-bar point to be determined at trial. He said that in principle it seemed to him still to be open to the court to conclude that an error of this kind does not lead to the conclusion that the action has not been brought for Limitation Act purposes [38].

75. Next in time was the decision of Stuart-Smith J in Dixon v Radley House Partnership (A Firm) [2016] EWHC 2511 (TCC) ; [2017] CP Rep 4 (“ Dixon ”). He rejected the proposition that where (a) abusive conduct is not present (b) the court sets the wheels of justice in motion by issuing proceedings but (c) the claimant has not paid and the court has not required the correct fee, the claimant has not brought an action within the limitation period. He distinguished what had happened in Page (No 2) on the basis that in that case the court did not issue the proceedings until after the correct fee was paid. Paragraph [2] of his judgment appears to accept that if the appropriate fee is not proffered before the proceedings are issued, even if that is due to an oversight or honest mistake in calculation, the action is not “brought” for limitation purposes before the claim form is issued.

76. Stuart-Smith J agreed with Warby J’s analysis at [35] of Bhatti that the “appropriate fee” is that required by the Fees Order, which is to be determined by reference to the claim or claims articulated in the claim form, (and, if issued simultaneously, the particulars of claim). The fee was not to be determined by reference to claims which are articulated later. However he disagreed with the provisional view expressed by Warby J that the authorities identified a principle that “a claim is only brought for limitation purposes when the party concerned has done all that is in his power ... to set the wheels of justice in motion.”

77. Stuart-Smith J did not consider that failure to pay the full fee meant that an action was not “brought” within the limitation period even if the court issued the claim form (within that period). He said that where a party engages in abusive behaviour, a range of responses are open to the court, including striking out the claim. The court has power to refuse to issue the claim until the correct fee is paid or, if the proceedings are issued and the shortfall discovered later, to stay the proceedings until the shortfall is paid. He considered that this range of responses demonstrated that what he described as “the nuclear option” (i.e. holding that all proceedings that are issued without the correct fee being paid are ineffective to stop time running) was unnecessary as well as being unwarranted [56].

78. At [70] Stuart-Smith J held that in the absence of an allegation of abusive conduct, the claimant’s intention to claim further amounts, or even knowledge that their claims would be greater than claimed in the claim form, does not prevent the proceedings as issued from being effective to stop time running for matters that can subsequently be advanced given the terms of the claim form. He pointed out that the claimant ran the risk that a later amendment might be held to involve a new claim which may engage s.35 of the Limitation Act 1980 . He then said this: “I would regard a principle that left the validity of proceedings to be determined by satellite litigation that investigates the (non-abusive) state of a claimant’s mind and intentions on issue as detrimental to the efficient and fair conduct of litigation. To my mind the undesirability of the principle for which the defendants contend is brought into sharp focus when it is remembered that the payment of fees is a matter for the benefit of the court and is very largely irrelevant to the opposing parties.”

79. In Liddle (above) Turner J also rejected the existence of the “clear principle” identified by Warby J in Bhatti. He expressed sympathy with the views expressed by Mr Roger ter Haar QC, sitting as a Deputy High Court Judge, in Glenluce Fishing Co Ltd v Watermota Ltd [2016] EWHC 1807; [2016] 5 Costs LR 1021, (“ Glenluce ”) that the first instance decisions in Page (No.2) , Lewis and Bhatti significantly extended the ambit of the Court of Appeal principle on which they are based.

80. Liddle was a case in which the claimant’s solicitor had deliberately (but not dishonestly) mis-stated the value of the claim, leading to a lower fee being paid, and that was held to be an abuse of process. However it was not so egregious in nature as to justify striking out the claim. Turner J held that the action was brought for limitation purposes at the time the claim form was received by the court and not when it was later issued. The relationship between the claimant and the court ceased to be transactional at the earlier date [61]. The discrepancy in payment of the fee had had no impact on the delay in issuing the claim form in that case [62]. He declined to follow Lewis and held that he did not need to comment on the correctness or otherwise of Page (No 2) .

81. The final first instance authority is that of Peterson , which was not concerned with a time bar under the Limitation Act 1980 , but with the time for bringing an application in the County Court for an order under s.48(3) of the Leasehold Reform, Housing and Urban Development Act 1993 , granting the tenants a new lease. That statutory time limit cannot be extended. The solicitors making the application (which was brought under CPR Part 8) sent a covering letter in which they authorised the court to deduct a court fee of £308 from their account; unfortunately the fees had been increased to £332, and the court office did not process the issue of the claim until after they received authority from the solicitors to deduct the full fee. The increase in the fees was relatively recent and the solicitors had innocently overlooked it.

82. The judgment did not address the question whether this deficiency meant that the application was not “made” within the time limit prescribed in the 1993 Act because that point was expressly conceded by the claimant’s counsel – a concession which Eyre J rightly regarded as significant. Nevertheless, as he noted at [26] of his judgment, the recorder whose judgment was under appeal questioned whether the current state of the law was entirely satisfactory, pointing out that the mistake was inadvertent and understandable, the difference between the fees was modest (albeit not de minimis ) and the claim form as issued was in substance the same as that provided to the court within the time limit. There was no difference in terms of the details identifying the parties and of the claim being made, and no suggestion of abusive conduct. There was also little or no prejudice suffered by the defendants.

83. Eyre J, at [65] said the recorder was right to note that the effect of the correct interpretation of CPR r.3.10 is that there can be severe consequences in circumstances where there has been an inadvertent mistake as to the correct amount of the fee, but he pointed out that the solicitors had left it to the end of the prescribed period to make the application. Parliament had chosen not to provide for an extension of that period, so that when it expired a landlord was entitled to proceed on the basis that there was no prospect of their being required to grant the new lease. That result had been reached by balancing the interests of landlords and tenants and considering the benefits of certainty. In those circumstances it was not for the courts to say that the result was unsatisfactory.

84. Peterson was decided after two further relevant decisions of this Court, one of which was referred to by Eyre J and the other by the recorder. The first is Hayes v Butters and another [2021] EWCA Civ 252 ; [2021] 1 WLR 2886 (“ Hayes ”). The constitution comprised Lewison LJ, Peter Jackson LJ and Newey LJ. The original claim as pleaded alleged various acts of harassment. The claimant obtained permission to amend the Particulars of Claim to include claims arising from other acts of harassment, but failed to pay an additional fee for the amendments. The defendant applied to strike out the amended Particulars of Claim, alleging that because of the non-payment of the further fee, the claimant could not be said to have “made” new claims within s.35(1) of the Limitation Act, and thus those claims did not relate back to the date of the issued claim form and were time-barred.

85. The Court of Appeal held that if a new claim which is not otherwise abusive is made by amendment within the limitation period, it will not later become time-barred because a requisite court fee had not been paid. The resolution of that issue turned on the interpretation of s.35(1) of the Limitation Act, to which different considerations apply from those which apply to the question whether an action has been “brought” under Part 1 of that Act . New claims can only be added to an existing action, where the claim form has already been issued. The bringing of an action is not under the control of the court, and it is subject to a different statutory regime [38].

86. Peter Jackson LJ, who delivered the leading judgment with which the other members of the constitution agreed, considered the decisions in Barnes, Page, Page (No 2), Lewis, Bhatti, Glenluce, Dixon and Liddle. He acknowledged that, with the possible exception of Glenluce , they were not directly concerned with a new claim made by amendment within existing proceedings [23](1). He then stated that a claim will be brought within the limitation period if it is issued by the court within that period, and the proposition that a claim will be statute-barred if it is issued in time but without the appropriate fee is not correct [23](3).

87. As to the decisions in Barnes and Page , Peter Jackson LJ said at [14] that they establish that for limitation purposes, time will cease to run upon the delivery of the claim form to the court office. That interpretation was justified by the obvious unfairness of a claim becoming time-barred because of a delay in issuing on the part of the court where the litigant had done “all in his/her power to set the wheels of justice in motion”. Those decisions assume that this will include payment of the appropriate court fee, but they did not expressly consider a situation where a claim form is lodged in time but with an incorrect fee, whether inadvertently or abusively. Nor did they concern the position where a claim is issued by the court within the limitation period, despite a non-payment of the correct fee. At [23](4) he said the decisions did not decide that an action will be brought in time if and only if it is accompanied by the appropriate fee.

88. At [24] Peter Jackson LJ then considered the division of opinion at first instance, identifying three approaches. Page (No 2) and Dixon held that non-payment of the full fee alone would lead to the conclusion that an action was not “brought”. In Lewis it was held that the non-payment was abusive. In Liddle it was held that the action had been brought because the non-payment was not materially abusive, in the sense that it did not impact upon the timing of the issuing of the claim. Each approach involved a trade-off between the advantages of certainty and an appreciation of the justice of the individual case. Whilst he was not going to resolve the question, as it was unnecessary to do so for the purposes of that appeal, his provisional view was that: “there is force in the concerns expressed in a number of the cases about the disallowing of a claim on limitation grounds merely because of an inadvertent miscalculation of a court fee.” He also agreed with Stuart-Smith J’s observations in Dixon at [56] about the range of other responses available to the court to control abuses of its processes. Finally, he flagged up the difficulties of working out where the line should be drawn in relation to calculated (i.e. deliberate) underpayments, as seen from the different approaches taken in Lewis and Liddle .

89. Lewison LJ delivered a short concurring judgment at [42] in which he emphasised two points: first, that in Page in the Court of Appeal, the correctness or otherwise of the fee was not argued and was not in issue. The court gave it no detailed thought. “Second, it is a mistake to read a judgment as though it were a statutory test, especially on a point that was not in issue.” The clear message from those observations is that Lewison LJ disavowed Hildyard J’s interpretation of his judgment in Page (No 2) as laying down a rule that the appropriate court fee must be paid in order for the action to be “brought”.

90. The second more recent Court of Appeal case is Chelfat v Hutchinson 3G UK Ltd [2022] EWCA Civ 455 ; [2022] 1 WLR 2613 (“ Chelfat”) , the facts of which bore some similarity to Riniker . The claimant, acting in person, sent the claim form and a “help with fees” application to the court office, which received the documents within the limitation period. The office refused to issue the claim form for three reasons, two of which were subsequently accepted to be wrong. The third reason was that the claimant had not completed a form N510 as required by CPR 6.34(2) because the given address for service on the defendant was outside the jurisdiction (in Scotland). The address was a mistake, which on the evidence was the result of misinformation given by the defendant to the claimant. The claim form as eventually issued, well outside the limitation period, was exactly the same as the one that had been delivered originally to the court office, with the exception of the address for service, because the claimant had discovered in the intervening period that the defendant had an address for service within the jurisdiction.

91. The District Judge held that what was then paragraph 5.1 of PD 7A did not assist the claimant because the “claim form as issued” had a different address for service on it from the claim form that was delivered within the limitation period. On appeal, the Circuit Judge upheld that decision. The Court of Appeal (Peter Jackson, Coulson, and Stuart-Smith LJJ) allowed the second appeal.

92. In the course of his judgment, with which the other members of the court agreed, Coulson LJ considered the question of when an action is “brought” for the purposes of sections 2 and 5 of the Limitation Act 1980 . He referred to Hayes , Barnes , and Page as well as some of the first instance decisions. At [29] he said that although the wording of the test had varied slightly from case to case, he was content to adopt the formulation of Warby J in Bhatti to the effect that in order to take advantage of the principle, a claimant must do all that he or she reasonably could do to bring the claim before the court in the appropriate way. “In a case like this, a claimant must do what is necessary and sufficient to cause the court to issue the proceedings”.

93. At [30] and [31] Coulson LJ referred to the conclusion reached in Hayes and to the obiter observations of Peter Jackson LJ at [24] of his judgment in that case. He then found that on the facts of the Chelfat case, the court office was not entitled to refuse to issue the claim form. The sanctions for non-compliance with the obligation to file Form N510 with the claim form were specified in CPR r.6.34(1), namely, that the claim form cannot be served until the form is filed, or the court otherwise gives permission. Whatever the ambit of the powers of the court office to refuse to issue a claim form, they did not justify a refusal to issue a claim form which was itself in proper form. In any event, on the working assumption that the substantive content of the claim form, i.e. the details of the parties and of the claim being made, were the same, the change to the address for service did not matter for the purposes of PD 7A. The contrary argument risked putting form ahead of substance.

94. Coulson LJ distinguished the cases about underpayment of fees on the basis that the fees were payable for the issue of proceedings, and therefore there was a direct link between the payment or non-payment of the fee and the issue of the claim form, which made it at least arguable that the non-payment of the fee justified the non-issue of the claim form. However, he said at [60] that to the extent that those authorities are analogous, they assisted the appellant: “As Peter Jackson LJ put it in Hayes v Butters , there is force in the concerns expressed in the authorities about the disallowing of a claim on limitation grounds merely because of an inadvertent miscalculation of a court fee. That might be said to have resonance in the present appeal; the appellant, a litigant in person, inadvertently failed to complete Form N510. That failure should not be held against her for the purposes of limitation.” D. Discussion

95. This is a case in which the underpayment of the fee, which I accept there was, for reasons I shall explain (see the discussion of issue 2 below), was not deliberate. It was always intended to issue a claim which sought both monetary and non-monetary relief, but the claim for the latter was included only in the Particulars of Claim and not endorsed on the claim form, as it should have been. The solicitor, who was in a rush to file the documents before the limitation period expired, paid a fee based only on what appeared on the face of the claim form. It does not really matter whether this was because she did not read the Particulars of Claim, and did not realise it included claims for non-money relief, or because she was intending to issue an application for an interim injunction and pay a separate fee for that, or whether she simply overlooked the fact that a non-money claim attracts a further fee on issue.

96. The court office, as it did in Page (No 2) spotted the error. Since the documents were filed electronically, under Paragraph 5.4 of PD 51O the underpayment of the fee meant that they “failed Acceptance” and the court office was entitled to reject them, refund the fee and require them to be re-filed and the correct fee to be paid. The consequence, set out in Paragraph 5.4(6) of that Practice Direction, was that the claim form was deemed not to have been issued at the time of the payment of the original fee, as it would otherwise have been under sub-paragraph (2) of that Paragraph.

97. The impact, if any, on the date and time of filing is less clear. “Filing” is defined in the glossary in CPR r.2.3(1) as “delivering a document or information, by post or otherwise, to the court office.” Whereas a document which is delivered by DX or post or (insofar as it is still possible) in person over the counter to the court office will be filed before it is issued, even if both events occur on the same date, the date and time of filing on Electronic Working is deemed to be the date and time on which “payment of the court fee is made using Electronic Working”, which is also the deemed date and time of issue. Paragraph 5.4 (5) implies that filing may be delayed by the failure of Acceptance. Sub-paragraph (7) indicates that where there is a failure of Acceptance, a new date of filing will be generated in substitution for the old date, but that paragraph appears to cover the scenario where the full court fee has been paid and the filing error is of a different nature. This may not matter, however, because PD 7A para 6.1 refers to the date of “receipt” of the claim form in the Court office, not the date of filing. So too does Barnes . In any event, as Lewison LJ rightly observed in Page , the interpretation of the meaning of “brought” in the statute does not turn on the interpretation of the rules of civil procedure and the practice directions.

98. In my judgment, the answer to this issue lies in going back to first principles. The question of when an action is “brought” for the purposes of the Limitation Act 1980 must be answered in the same way irrespective of whether the claimant is legally represented or unrepresented, whether they can afford to pay the court fees or not, or whether they are using electronic or other means to deliver the claim form to the court with a request for its issue. It is a matter of substance, not a matter of form.

99. As Tuckey LJ recognised in Barnes , “bringing” necessarily refers to action on the part of the claimant. The statute is concerned with something that is done, not with the reasons for doing it, or the claimant’s (or their lawyer’s) mindset at the time when they do it. Legal certainty could not be achieved if the question whether an action has been “brought” depended upon whether the claimant or their legal representatives had a particular intention, or were acting bona fide but mistakenly, or matters of that nature, which would not only be a recipe for satellite litigation but would fly in the face of the language of the 1980 Act . There must be a bright line which is readily identifiable in all cases, irrespective of whether hard cases may fall on one or other side of that line.

100. Thus, if it were the case that a claimant would have to pay the entire amount of the court fee prescribed by the Fees Order at the time of receipt by the court office of the claim form in order to “bring” the action within the limitation period, as Mr Wills submits, it would not matter whether a failure to pay the full fee was due to an inadvertent mistake or was deliberate, and the size of the shortfall would not matter either (subject possibly to amounts that could genuinely be described as de minimis ). This was recognised by Hildyard J in Page (No2) and by Stuart-Smith J in Dixon . Moreover, the court would have no power to rectify the position ( Peterson , Gotti ) save by exercising a statutory discretion to disregard or extend the limitation period, if one exists (at which time the reasons why the shortfall came about plainly would come into play).

101. Next, what has to be “brought” within the limitation period is “an action” for whatever the relevant tort or breach of contract or other legal wrong may be. In this case it is an action for libel, slander or malicious falsehood. An “action” means a claim for relief from the court. The document which initiates the action is the claim form. The claim must be set out in sufficient terms in the claim form and particularised in the Particulars of Claim, though the latter, if it is a separate document, need not be served at the same time as the claim form. On the face of it, therefore, the question whether the action has been “brought” should focus on the claim form, and not depend on whether separate Particulars of Claim are filed at the same time. A failure by a claimant to abide by some ancillary procedural rule, such as that relating to the lodging of a form for service out of the jurisdiction as in Chelfat , has nothing to do with the substance or formulation of the claim or with bringing the claimant’s wish to make such a claim to the attention of the court, even though it may affect the time at which the defendant becomes aware of the claim, because it may delay service.

102. On 27 March 2025, C’s solicitor electronically delivered to the court office a claim form expressly stating that “this action is brought” for (among other things) slander, libel and malicious falsehood, identifying the Defendants, and claiming damages. All of that information was correct; the fact that C was seeking additional relief that was set out in the Particulars of Claim (but not in the claim form) did not make it incorrect. Moreover C’s solicitor paid the correct fee for a money claim. Why then should the failure to pay a further fee for additional, non-monetary remedies mean that C had not done all that was necessary and sufficient to commence an action for those causes of action?

103. As Coulson LJ recognized in Chelfat , non-payment of the appropriate fee may be different from other errors, because, unlike the procedural error that occurred in that case, it could justify the refusal to issue the claim form until the shortfall was paid. However the payment of a court fee is a purely administrative act which does not affect the substance of the claim. It has no impact on the putative defendant save to the extent that, depending on how quickly a shortfall is corrected, it may cause some delay in the issue of the claim form (and possibly lead to a delay in its service, as it did in Bali ) so that the defendant finds out about the existence of the claim later than they otherwise might have done.

104. Apart from that possible delay, the failure to pay the full amount that the court must “take” under the Fees Order for carrying out its administrative function of issuing the claim form does not prejudice the defendant. The amount of the claim may be vastly in excess of the shortfall in fees, and it may otherwise be a perfectly meritorious claim. Can Parliament really be taken to have intended that a defendant should be entitled to raise a defence of time-bar to such a claim, even if the claim form received by the court within the time allowed by statute was otherwise perfectly in order, merely because the claimant or the claimant’s representative failed to pay the whole of the prescribed administrative fee? I do not believe so, and that result does not accord with the rationale of the decision in Barnes .

105. The Fees Order makes it clear that the fee is payable “on starting proceedings” which means on issue, not on filing, though PD 51O treats payment, filing and issue as occurring simultaneously if electronic means are used. The fee must be paid before the office will issue the claim form; but as a general rule, the date of issue is immaterial, as Barnes and Page make clear. Rather, the date of issue is the latest date on which the action may be considered to have been brought for limitation purposes.

106. If the claim is issued within the limitation period, proceedings have been commenced and it makes no sense in those circumstances to say that an action has not been “brought” by the claimant. Therefore if the claim is issued within the limitation period, the fact that it later transpires that (for whatever reason) the wrong fee was paid on issue cannot mean that the action was not “brought”. I respectfully agree with Peter Jackson LJ’s observation in Hayes that an action will be brought within the limitation period if proceedings are issued by the court within that period, and his express disavowal of the proposition that an action will be statute-barred if a claim form is issued without payment of the appropriate fee.

107. Again going back to first principles, an “action” cannot be “brought” for limitation purposes at different times depending on whether the claim form is issued or not. That is why the distinction which Stuart-Smith J sought to draw in Dixon between cases in which the shortfall in payment is discovered before issue and after issue cannot be correct. As Tuckey LJ noted in Barnes , the issue of proceedings is a matter for the court, the bringing of the action is a matter for the claimant. The two are not synonymous.

108. If an action can be “brought” for limitation purposes even if an incorrect fee is paid, which it plainly can if the underpayment is overlooked or is not apparent and the claim form is issued in time, then it seems to me that there is no justification for drawing a distinction between cases in which the shortfall has not been spotted by the court office and the proceedings are issued within the limitation period, and cases in which it has been discovered and the proceedings are not issued until after the matter is put right, by which time the limitation period has expired. The omission by the claimant or their solicitor, and their degree of fault, is the same in both scenarios. I am not persuaded that the distinction lies in the fact that the issue of the proceedings is an error by the court, which by good fortune happens to work to the benefit of the claimant. It is the claimant who must “bring” the action in time; either they have done enough to stop time running or they have not. In any event, in a case in which 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 in fact the correct fee was not paid.

109. Mr Lemer also made the telling point that the time it takes the court to consider a claim form and the fee provided before reverting to the claimant and pointing out any error can differ considerably from case to case; in one case the message may be received just in time to rectify the position before the limitation period expires, in another case, like the present, it will already be too late to do so. Moreover, the underpayment and its rectification may have no impact upon the date on which the claim form is actually issued, as in Liddle. Therefore, as he put it, claimants making the same error currently face vastly different outcomes simply on the basis of the speed of the court’s administrative processes, and that has the potential to cause significant injustice.

110. There is a further reason why the failure to pay the full fee when an otherwise proper claim form is delivered to the court office before the end of the limitation period cannot mean that the action is not “brought” in time. Claimants who seek help with fees or partial help with fees will make that application by lodging a help with fees form at the same time as filing the claim: this is provided for by para 5(1) and Schedule 2 paragraph 15 of the Fees Order (PD 51O also requires them to set up an online account if using electronic filing). That application will take time to process, and then if the claimant is required to pay a contribution towards the fees, they or their solicitors will have to be notified and make that payment before the claim form can be issued. That is what happened in Bali , where the claim form was filed on the last day of the limitation period, together with a help with fees form. The delay which that caused to the issue of the claim form in that case was considerable, and much of it was the fault of the solicitors, not the court office. The claimant’s contribution towards the fees was paid long after the limitation period expired. Yet nobody suggested that the action had not been brought within the limitation period.

111. The acceptance by the parties in that case that the action was not time-barred was plainly correct, as both counsel agree in the present case. If an impecunious claimant were required to ascertain the amount of any contribution they had to make towards the court fees and pay that sum or lodge the waiver form at the same time as filing the claim form with the court, they would not have been afforded the full limitation period in which to bring their claim. They would have to set the process in train much sooner to be sure of meeting the deadline for payment. That is no doubt why Schedule 2 of the Fees Order sets out the procedure that it does.

112. Mr Wills contended that in such cases the claimant’s failure to pay a fee at the time of filing becomes irrelevant, because lodging the help with fees form means the claimant has done all within their power to procure the issue of the claim form, and therefore the claim is “brought” at that stage. However the court office will still not issue the claim form unless and until any fee contribution is paid by a deadline notified by the office to the claimant, or a full fee waiver is granted. In those circumstances the delay in issue is not the result of any failure by the court. It could be the fault of the claimant or their solicitor, as it was in Bali . A person who seeks help with fees may not qualify, in which case they will have to pay the full fee, and by the time they discover that this is the case, the limitation period may have expired. Mr Wills accepts that in such circumstances, the court would have to resort to other sanctions if the fee was not paid, but he submits that time has stopped running for limitation purposes even though, ex hypothesi, the appropriate fee has not been paid before the limitation period expired.

113. As I have already observed, the time at which an “action” is “brought” for limitation purposes cannot depend on whether the claimant can or cannot afford to pay the fees, (or think they may qualify for fee remission). If a claimant has “brought” the action when they lodge the claim form and help with fees form but have not yet paid their contribution, if any, or obtained their fee waiver, their non-payment of the fee or part of it has no bearing on the question of time-bar. Yet a fee may still be payable on issue.

114. I respectfully agree with Peter Jackson LJ’s analysis of Barnes and Page in Hayes. The question of the impact of failure to pay the appropriate fee did not arise for consideration in those cases; there was an assumption that the appropriate fee would be proffered with the claim form. The only case in which the situation in the present case has directly arisen for consideration by the court is Page (No 2) . In that case, in the second half of [57] Hildyard J misinterpreted what Lewison LJ said in Page , and consequently regarded the failure to pay the appropriate fee as fatal.

115. As Lewison LJ explained in Page , the point that the Court of Appeal was making in Barnes when rejecting the argument that the date on which an action is “brought” was the date of issue, rather than the date of receipt of the claim form in the court office, was that the date on which proceedings are issued may be delayed due to circumstances entirely outside the claimant’s control. There is no justification for visiting the consequences of that type of delay upon a claimant who has otherwise done all that is in their power to bring the proceedings before the court, but that is what would happen if the date of issue were chosen.

116. In pointing out that visiting the consequences of delay in issue on the claimant had the potential to operate unfairly in certain circumstances, the court was not indicating that “brought” should have a different meaning if the delay was wholly or partly attributable to the claimant’s own fault. The unfairness that the court identified was no more than a good reason for rejecting the date of issue as being the correct date, and deciding that an action is brought when the claim form is received by the court. It cannot be equated with laying down a legal test which requires the court to examine whether the claimant has or has not done all within their power (or to use Coulson LJ’s paraphrase in Chelfat , all that is necessary and sufficient) to bring the proceedings, in order to gauge whether time has ceased to run for limitation purposes. There is no “principle” to that effect. In Chelfat , the court proceeded on an assumption that such a principle existed. It was not required to consider whether that assumption was correct.

117. In Page , Lewison LJ referred at [33] to the policy underpinning the decision in Barnes as being one of risk allocation. Treating the date of delivering the request for issue of the claim form as the appropriate date gave the claimant the full benefit of the limitation period, and it would be unjust if he had to take the risk that the court would fail to process it in time. He then said that it did not seem to him that the reason why the court fails to process the claim in time altered the justice of the case. In other words, provided that the claim form has been delivered within the limitation period, the reason for the delay in issue does not impact upon the justification for treating the date of delivering the request for issue as the appropriate date for “bringing” the action.

118. There is, of course, a superficially attractive argument that if a claimant or their solicitor leaves it to the very last minute to bring proceedings they only have themselves to blame if something goes wrong, and that the risk of that happening should lie on them. That is Mr Wills’ strongest point. I agree that legal professionals whose acts or omissions cause their client’s claim to be time-barred deserve to face a claim for professional negligence, and it is well-established that the risk of not delivering the documents to court on time lies squarely on them. But the amount of damages that the client will recover in such cases is never going to be the same as the amount they would recover in the underlying proceedings, if they were otherwise meritorious, and the client faces the prospect of another round of expensive litigation before achieving any result. Moreover, in a defamation or malicious falsehood case, the claim against the solicitors is never going to achieve the vindication available from a public judgment, or the restraint of future publications, and therefore may be of little consolation to the person whose reputation has been maligned.

119. The policy considerations identified by Stuart-Smith J in Dixon and which troubled both Peter Jackson LJ in Hayes and Coulson LJ in Chelfat appear to me to militate very strongly against introducing a gloss on the interpretation of “brought” by this Court in Barnes , which could result in an otherwise meritorious claim being defeated simply because of an inadvertent shortfall in payment of a fee which might be a tiny fraction of the amount of money at stake. That too would be placing form over substance, and would not be in the interests of justice.

120. It is one thing to miss a deadline for filing; that is generally inexcusable. That is quite different from making a mistake in the payment of the fee, which can easily occur. The fees may have been increased without the solicitors being aware of the date on which the most recent statutory instrument amending the Fees Order came into force, or they may not appreciate that a claim for “further or other relief” attracts an additional fee. There is also plenty of scope for a litigant in person to make an error of this nature. Mr Wills points out that there is guidance to assist litigants, and that litigants in person are expected to comply with the rules of practice and procedure in the same way as everyone else, but that does not mean that they necessarily understand them, and they quite often get things wrong.

121. All these considerations seem to me to point clearly to the position stated in Barnes and Page and reiterated by Turner J in Liddle, as being the correct one, irrespective of whether the court fee has been paid in full by the time the limitation period expires, and irrespective of the reason for any shortfall. Page (No 2) was wrongly decided. An action is brought when the claim form is first delivered to the court office, even if the office legitimately refuses to issue it (or, if filed electronically, it fails Acceptance) because the whole of the appropriate fee has not been paid. The delay in issuing the claim form, even if it is attributable to that failure, is immaterial, 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 in order for the documents to be filed electronically) or a help with fees form is lodged, the action will be brought when the claim form is received in the court office.

122. I should make it clear that that does not give claimants or their representatives carte blanche to make deliberate underpayments, or to buy themselves additional time by deliberately delaying payment of the shortfall once the court office has drawn it to their attention. In a case, unlike the present, where it transpires that the claim has been deliberately undervalued in order to avoid payment of the correct fee, there are plenty of other sanctions available to the court, including, in a particularly egregious case, striking out the claim.

123. We were not addressed by counsel on the situation in which (for whatever reason) no fee is paid or proffered and there is no application for fee remission. That situation is very unlikely to occur, especially now that electronic filing has become the norm, because it is impossible to deliver documents to the court electronically without either lodging an application for fee remission or paying some fee. I would prefer to leave consideration of that scenario to a case in which it directly arises.

124. Consequently, in the present case, C brought an action for defamation and malicious falsehood on 27 March 2025, which was within the limitation period. Issue 2: was there a shortfall in payment of the fee?

125. This question is much easier to answer. In a claim commenced under Part 7, there are four ways in which particulars of claim can be put before the court, namely: (1) by including them entirely in the body of the claim form; (2) by starting them in the claim form and continuing them in a separate attached document; (3) by pleading them in a separate document entitled “Particulars of Claim” which is filed with the claim form and intended to be served with it; (4) by pleading them in a separate document entitled “Particulars of Claim” which are filed and served separately from the claim form, within the time limits prescribed by CPR 7.4.

126. In the last of these scenarios, the content of the Particulars of Claim and the relief sought therein will be irrelevant to the calculation of the fee, because the fee is payable on starting the proceedings, i.e. issue of the claim form, and the only document at that stage which seeks relief is the claim form itself. If that document only makes a money claim, then the fee is that referable to a money claim. Whilst that means that the claimant could avoid having to pay the fee for a non-money claim on issue merely by omitting to endorse the claim form with all the relief he seeks, in contravention of CPR r.16.2, and then pleading his claim for non-money relief in the Particulars of Claim served 14 days later, it does not necessarily mean that the claimant would avoid having to pay a fee altogether, since a fee is payable on amendment.

127. So far as scenarios 1 and 2 are concerned, it is common ground that the fees are based upon what is claimed in the claim form and any particulars that form part of it. It seems to me to be self-evident that the same must apply if the Particulars of Claim are filed alongside the claim form and intended to be read with it, as happened in the present case. It is a long-established principle that documents intended to be read together can be read together: see Libyan Investments v King [2020] EWCA Civ 1690 ; [2021] 1 WLR 2659, per Nugee LJ at [65]-[66]. That case referred to the decision of the Court of Appeal in Evans v Cig Mon Cymru Ltd [2008] EWCA Civ 390 ; [2008] 1 WLR 2675 , in which the claim form and Particulars of Claim were served together and were treated as together setting out the claimant’s pleaded case. The same approach was rightly taken to the claim form and Particulars of Claim in Bhatti and in Dixon .

128. The court office was therefore correct to say that the extra fee was payable. They would have been right to do so irrespective of whether it was a mistake to include the claim for final injunctive relief, because there was at least one other claim for non-monetary relief in paragraph 27 of the Particulars of Claim. However, there was no such mistake. C’s solicitor always intended to file the claim form and Particulars of Claim together, as she did both on 27 March and 7 April 2025, and to file proceedings which claimed both damages and an injunction, as she accepted she did. The action that was started by the issue of the claim form sought both those remedies. Even had it not been intended to make a claim for a final injunction, that would have been irrelevant to the calculation of the fee. The fact is that the documents which were received by the court for issue did make such a claim, and therefore the additional £636 was payable. I note that C’s solicitor did not query the correctness of what the court had said to her at the time. The additional fee had nothing to do with the application notice for interim relief.

129. C’s solicitor was therefore at fault in miscalculating the fee and for making an underpayment of what was due, but for the reasons I have explained, her failure to do so had no effect on the time at which the action was brought for limitation purposes. The Backdating Application was not only misguided, it was wholly unnecessary. CONCLUSION

130. How, then, should the Court dispose of these two appeals? D1’s appeal is well- founded. However, the procedural injustice that she suffered on account of the hearing taking place without affording her the chance to participate and make submissions has caused her no ultimate prejudice, because this Court has heard all the arguments, including those she might have deployed, and has decided that C was not entitled to the relief he sought, and indeed that there was no power to grant it. On the other hand, he had no need to seek any relief.

131. All the Grounds of Appeal articulated by D2 and D3 are also well-founded. Paragraph 4 of the Order was an order made without jurisdiction and must be set aside. I have already indicated my view that paragraph 5 of the Order, however generously construed, is not a declaration that the action was brought in time for limitation purposes. On the contrary, it deems the action (referred to as “the claim”) to have been brought in time, which necessarily assumes that it was not brought in time. Whilst that appears to be at odds with the Judge’s findings in various passages in the Judgment, the appeal is against the Order, which purported to allow the Backdating Application. I would also allow the appeal against paragraph 5 and set that paragraph aside.

132. That leaves the Respondent’s Notice. The Judge’s decision that the correct fee was paid is wrong. However, to the extent that she did decide that the action for defamation and malicious falsehood was not time-barred, she was right, though not for any of the reasons she articulated. That finding does not impact upon the Order, since it was not reflected in the Order. That means that there is no justification for deciding that any part of the Order should be upheld for different reasons.

133. The question remains whether the Court should grant a declaration. I do not consider that to be necessary. No court has yet held those claims to be time-barred, and that would not be the result of setting aside the Order. If my Lords agree with me, the parties are bound by this Court’s decision that the claims are not time-barred, and that should suffice to protect C’s position.

134. I would therefore allow both Appeals and set aside paragraphs 4 and 5 of the Order. Lord Justice Warby

135. I agree. Lord Justice Zacaroli

136. I also agree.