The scope of CPR 3.10 and “errors of procedure” – Peterson and Blake v Howard de Walden Estates Limited [2023] EWHC 929 (KB)

Last week, the High Court handed down judgment in Peterson and Blake v Howard de Walden Estates Limited [2023] EWHC 929 (KB) in which the Claimants contended that the failure to make an application for an order under section 48(3) of the Leasehold Reform, Housing and Urban Development Act 1993 (“the 1993 Act”) in time was an error of procedure which the court had the power to remedy under rule 3.10. The court rejected the Claimants’ interpretation of the meaning and effect of CPR 3.10 and dismissed the appeal.

 

Background

In October 2020, the Claimants’ predecessor in title took an assignment of a lease of a flat together with the benefit of a notice of claim under section 42 of the 1993 Act (“the Notice). In December 2020, the Defendant served a notice pursuant to section 45 of the 1993 Act admitting the right to acquire a new lease. The terms of acquisition were agreed on 25 November 2021. Thereafter, the effect of section 48(3), (5) and (6) of the 1993 Act was that if the new lease had not been completed by 25 January 2022, the Claimants had until 25 March 2022 to apply to the Court for an order under section 48(3) of the 1993 Act to protect their position. If no such application was made, the Notice would automatically be deemed withdrawn pursuant to section 53(1)(b).

 

On 23 March 2022, the Claimants’ sought to make their application under section 48(3) of the 1993 Act by leaving the claim form at the Central London County Court. However, the Court declined to issue the claim because the solicitor’s covering letter had authorised deduction of a court fee of £308 when the fee, in fact, payable was £332. On 24 March 2022, the claim form was returned to the Claimants’ solicitors. However, the Claimants’ solicitors did not receive the letter under 30 March 2022 after which time the statutory deadline for applying to the Court under section 48(3) had passed.

 

The Application

Upon receiving the court’s letter dated 24 March 2022, the Claimants made an application for an order under CPR rule 3.10 contending that there had been an error of procedure which the court had the power to remedy under rule 3.10. Alternatively, the Claimants sought relief from sanctions under CPR rule 3.9. However, the main focus of the Claimants’ application was on rule 3.10.

At first instance, Recorder Hansen dismissed the application having concluded that he did not have jurisdiction under CPR 3.10 to make the order sought by the Claimants.

The Claimants appealed to the High Court with permission from the Recorder.

 

The Appeal

It is important to note that the Claimants accepted that failing to proffer payment of the correct court fee meant that the application under section 48(3) had not been made in time, hence the need for an order under CPR 3.10. As noted at paragraph 29 of the judgment, this was a significant concession because it meant that the Court was not concerned with the numerous authorities considering whether a failure to pay the correct issue fee meant that a claim had not been brought for those purposes. The Claimants accepted that their application had not been made and relied on CPR 3.10 to remedy the failure to comply with a statutory timeframe.

The court rejected the Claimant’s interpretation of the meaning and effect of rule 3.10. The requirement to pay the correct court fee before a claim will be issued does not derive from the CPR. Accordingly, the failure to pay or at least tender the correct court fee was not an error of procedure within the meaning of rule 3.10.

It was held that an “error of procedure for the purposes of rule 3.10 is limited to an error in a procedure laid down by the CPR or potentially by an equivalent procedural provision and it is not concerned with matters occurring before the commencement of proceedings (although it can be used to remedy defects of form in proceedings once commenced)”.

 

Commentary

This case is an important reminder of the difficulties and risks parties face when seeking to make an application at the end of a statutory time period.

In this case, the effect of section 53(1)(b) of the 1993 Act was significant. Whilst rule 3.10 must be interpreted widely, it is not wide enough to enable the court to revive a tenant’s notice that the 1993 Act has deemed withdrawn or to treat a claim that was not made within a limitation period as though it had been made in time

As stated in paragraph 65 of the judgment: “Parliament has chosen to say that if an application is not made within a particular period then the tenant’s notice under section 42 is deemed to have been withdrawn. In addition, parliament chose to make no provision for an extension of the time period provided in section 48. The consequence is that at the end of the four month period the landlord is entitled to proceed on the footing that there is no prospect of it being required to implement the agreement. In reaching that position parliament is to be taken to have balanced a number of considerations including the interests of tenants; the interests of landlords; and the benefits of certainty. That balance having been placed at a particular point it is not for the courts to say that the result is unsatisfactory.”

 

Mattie Green represented the successful Respondent at first instance and on appeal. A copy of the judgment can be found here.