The tenants served notice on their landlord under section 42 of the Leasehold Reform, Housing and Urban Development Act 1993 1993 Act seeking to exercise the right to acquire a new lease of their flat. The landlord duly served a counter-notice and the terms of the proposed new lease were agreed, but in the event the lease was not granted. The tenants therefore sought to apply to the court for an order under section 48(3) for the grant of the lease in the agreed terms. Two days before the expiry of the time limit for making such an application, the solicitors lodged papers at the County Court with a covering letter authorising deduction of an application fee of £308 from the solicitors’ account. However, that amount was incorrect as there had been a fee increase to £332 several months earlier. The court declined to issue the application because the solicitors’ letter had not authorised payment of the correct fee calculated in accordance with the Civil Proceedings Fees Order 2008. By the time the solicitors received the court’s letter informing them of that matter, the time limit for making the application had expired with the effect, under section 53(1) of the 1993 Act, that their original section 42 notice was deemed withdrawn. The tenants applied to the court for an order under CPR r 3.10 to correct an error of procedure by validating the steps taken to make the application and issuing the claim form, with the deemed date of issue to be that of the original lodging of the application. Refusing the application, the recorder held that the court’s case management powers under CPR 3.10 were engaged only once the claim form was issued and concluded that, where the obstacle standing in the way of the claim was not any sanction imposed by the court but rather the fact that the limitation period had expired by the time the claim form was issued, there was no “error of procedure” which could be corrected under CPR r 3.10.
On appeal by the tenants—
Held, appeal dismissed. (1) Reading CPR r 3.10 as a whole and in context, including its presence in the part of the CPR dealing with case management powers, it was concerned only with errors in a procedure laid down by the CPR, or potentially by an equivalent procedural provision, and was not concerned with matters occurring before the commencement of proceedings (although it could be used to remedy defects of form in proceedings once commenced). CPR r 3.10(a) and (b) dealt sequentially with the consequences of a procedural error made after the commencement of an action, the first consequence being that “any step taken in the proceedings” was not invalidated in the absence of a court order and the second being that the court had power to make an order remedying the error. However, rule 3.10 could not be used to give effect to a claim which could not have had effect as a matter of substantive law or by reason of a non-procedural rule. As the error in the present case did not concern a requirement of the CPR but instead concerned the consequences of a failure to take a step which, by the Civil Proceedings Fees Order 2008, the Lord Chancellor had required to be taken before the court staff would issue a claim form, the recorder had been right to conclude that he lacked jurisdiction to grant relief and to dismiss the application accordingly (paras 38, 40, 41, 43, 44, 53, 58, 59, 66).
Per curiam. The correct interpretation of CPR r 3.10 has the effect that there can be severe consequences in circumstances where there has been an inadvertent mistake as to the correct amount of the fee payable. However, Parliament has chosen, by section 53 of the Leasehold Reform, Housing and Urban Development Act 1993, to say that if an application under section 48 is not made within a particular period then the tenant’s notice under section 42 is deemed to have been withdrawn, and it has provided no power for an extension of time. That being so, 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, and it is not for the courts to say that the result is unsatisfactory (para 65).
David Green (instructed by Wiseman Lee LLP) for the tenants.
Mattie Green (instructed by Charles Russell Speechlys LLP) for the landlord.