All Seasons Letting Limited & Anor v Rohit Pandya & Anor

This appeal is brought against an order of Deputy District Judge Perry (“DDJ Perry”) made on 12 March 2025 (“the 2025 Order”) in Romford. By that Order DDJ Perry restored the Respondents’ claim following the court issuing the Respondents’ application to restore the matter on 29 October 2025 (“the application”). He made the 2025 order on the basis that the application had been considered as to its validity, in the first instance, by Deputy District Judge Piperdy on 7 November 2024 (drawn and sealed on 5 January 2025) (“the 2024 Order”) when that Judge listed it for hearing before DDJ Perry on 12 March 2025. DDJ Perry held, in effect, that he had no jurisdiction to consider whether the application was invalid, as that issue had been addressed by DDJ Piperdy. The appropriate course of action was to apply to set aside the 2024 Order. In consequence, the Appellant’s notice also seeks to appeal, in the alternative, the 2024 Order.

The challenge to the Application is that it was not “made” on 29 October 2024 because the wrong fee had been tendered and paid. The date of 29 October 2024 was crucial because an earlier order made by DDJ Perry on 3 September 2024 provided that if no application to restore was made by 4.00pm on that date, the claim would stand struck out (“the Unless Order”).

I heard the appeal on 18 February 2026. The hearing length was two hours which was was inadequate to permit me to give judgment, even though I sat for longer than the allotted time. During the course of writing my judgment, the Court of Appeal decision in Hassan-Soudey (aka Hamilton) v Siniakovich[2026] EWCA Civ 215 (“Hamilton”) was handed down. In light of the submissions made to me, it appeared to be a relevant decision, so I gave the parties an opportunity to make written submissions on its relevance and effect. I received those submissions on 19 and 20 March 2026.

On the appeal, Mr Mullin appeared for the Appellants and Mr Webb for the Respondents. I am grateful to both counsel for their assistance.

The grounds of appeal are:

Following the grant of permission to appeal by His Honour Judge Hellman on 14 July 2025, the Respondent’s filed a Respondent’s Notice seeking to uphold the 2024 and 2025 Orders on the following grounds:

On the same day, the Respondents issued an application for relief from sanctions, in the event the claim had been struck out. The parties have agreed that I cannot deal with this application as well as the appeal in the time available. Further, it may not be necessary to hear it at all.

The claim started as one brought by the Respondents for possession of residential premises at 14 Staines Road, Ilford, IG1 2XF (“the premises”) and for arrears of rent. On 3 September 2024, following a hearing on the merits, DDJ Perry determined that the First Appellant’s tenancy, if any, had been terminated by 21 June 2023; any tenancy vesting in the Second Appellant had been terminated by 21 July 2024, and two other defendants were trespassers (they have not engaged in the litigation since). DDJ Perry ordered all the defendants to give possession of the premises to the Respondents by 17 September 2024. He adjourned the remainder of the claim generally on terms that it would stand struck out if not restored by 4.00pm on 29 October 2024.

It is common ground that the Respondents’ solicitors, Collins Benson Goldhill, sent the application to restore the claim to the Romford court on 28 October 2024 and it was received and by the court the following day. The application was accompanied by a covering letter asking the court to deduct “the application fee in the sum of £119.00” from the solicitors’ fee account, the account number being set out in the letter. It is common ground that the court deducted a fee of £119 from the solicitors’ account and issued the Application. I have already set out that on 7 November 2024, DDJ Piperdy listed the application for hearing on 12 March 2025, having recited that it had been “made” on 29 October 2024.

The fee paid was that required under paragraph 2.5(a) of the First Schedule to the Civil Proceedings Fees Order SI 2008/1053 (“CPFO”) which provides that a fee of £119 is payable “On an application by consent or without notice where no other fee is specified….”. For applications on notice, a fee of £303 was required (paragraph 2.4(a) of the First Schedule to the CPFO).

As noted, that Order was not sealed or sent out to the parties until 5 January 2025: the Appellants received it on the same day. I do not know the cause of the delay in processing the Order. This was the first the Appellants knew of the Application. They sought a copy of it from the Respondents on 28 January 2025 and, on 11 February 2025, were provided with all relevant documents save the covering letter accompanying the application. The latter document was provided on 11 March 2025. It is fair to note that the application notice stated it could be dealt with without a hearing pursuant to CPR Part 23.8(1)(c) (where the court does not consider that a hearing is appropriate) because the respondents had a right to have the claim restored pursuant to the 2024 Order although it also stated that the application notice should be served on the Defendants. The notice also notes that the court may wish to list a hearing in any event. It sought a directions hearing, if restored.

At the hearing on 12 March 2025, the Appellants deployed a skeleton argument arguing that the application had not been properly made for want of the proper fee. DDJ Perry, disagreed, notwithstanding his finding that the correct fee was £303. The Appellant’s Notice was filed on 1 April 2025 and permission to appeal granted by His Honour Judge Hellman on 14 July 2025. Although His Honour Judge Hellman granted permission to appeal both the 2024 order and the 2025 order (paragraph 1 of his order), at paragraph 2 he directed that the grant of permission was without prejudice to the Respondents’ right to argue that the appeal against the 2024 Order should be dismissed as being out of time. His Honour Judge Hellman also noted “a real possibility that the court will grant the Respondent relief from sanctions and an extension of time in which to file the correct filing fee, unless and until the court does grant relief from sanctions the remainder of the claim stands struck out.” No doubt, it was the latter remark that triggered the Respondents to issue an application for relief from sanctions as well as their Respondent’s Notice on 31 July 2025. On 30 April 2025 the balance of the proper fee was tendered. It was taken on 6 May 2025.

In general terms, I can only allow the appeal if I am satisfied that the Deputy District Judges, or either of them, were wrong in that the application was not made on 29 October 2024. The law and procedure in relation to making an application is considered below.

I have read all the key documents in the Appeal Bundle that I was asked to read or taken to in the course of the hearing. It contained nearly 800 pages some of which was duplicated. It also contained skeleton arguments, cases and other materials utilised in the possession hearing and other documents of no relevance to the appeal. I have not attempted to read those documents.

CPR Part 23, in so far as is relevant, provides as follows:

The CPFO applicable at the time provided, where relevant, as follows:

At the hearing, submissions focussed on three cases: Peterson v Howard de Walden Estates Ltd [2023] EWHC 929 (KB), a decision of Eyre J (“Peterson”); Sands & Appleyard v Singh & Ors [2015] EWHC 2219 (Ch), a decision of HHJ Purle QC “Sands”); and, Price v Egbert Taylor & Co Limited [A04YM127/Appeal Ref. BM5/007/A, a decision HHJ Paul Lopez (“Price”). None of these cases were concerned with the making of applications within on-going proceedings, all were concerned with the initiation of legal proceedings by way of a Part 8 Claim making an application under section 48 of the Leasehold Reform, Housing and Urban Development Act 1993 (Peterson); by way of making an application for an order for sale under s.283A of the Insolvency Act 1986 (Sands); or the bringing a Part 7 Claim under the Civil Procedure Rules (Price).

In the Peterson case, the Part 8 claim form was sent to the court with a covering letter authorising the deduction of a court fee of £308 from the solicitors’ account. The court refused to issue the claim form on the basis that the proper fee was £332. However, by the time the court’s letter to this effect reached the solicitors, the time limit for making the application had expired and was deemed withdrawn under section 42 of the Leasehold Reform, Housing and Urban Development Act 1993. An application was made for an order under CPR Part 3.10 correcting an error of procedure by validating the filing of the claim form with the wrong fee. Eyre J held that CPR 3.10 could only apply to a step in the proceedings once the proceedings had commenced. It could not apply to a step taken prior to issue. Part of his reasoning was also that CPR Part 3.10 could not apply to a requirement to pay a fee to issue proceedings that derived from the CPFO and not from the CPR themselves [58]. He was of the view that making such an order would, impermissibly, reverse the effect of section 53 of Leasehold Reform, Housing and Urban Development Act 1993 which deems an application for a new lease to be withdrawn if (in Peterson’s case) an application is not made to court within 2 months of the agreement of or for a new lease. It is notable that counsel for the claimant had conceded that the application had not been “made” in time.

In Sands, on 26 September 2014, the trustee-in-bankruptcy’s solicitors hand delivered an application form to the County Court at Coventry seeking an order for sale and asked that it be issued. It was accompanied by a cheque for £155, the correct fee. The court staff insisted that the proper fee was £70 and refused to accept more so £70 was paid. The paperwork and cheque were accepted although, for administrative reasons, the claim was not issued immediately. The paperwork was then sent to the District Registry in Birmingham which requested the additional £85 being the difference between the £155 correct fee and the £70 accepted. Following receipt, the application was issued on 1 November 2014. This was after the 3 years permitted for making such an application under s.283A of the Insolvency Act 1986. HHJ Purle QC held that, whatever the date of issue, the application was made or brought when the application notice was delivered to the court and the correct fee tendered. In doing so he applied, by analogy, the Court of Appeal decision in Barnes v St Helens Metropolitan Borough [2007] 1 WLR 879 and a decision of Evans-Lombe J in Secretary for Trade and Industry v Vahora & Ors [2008] Bus. L.R. 161. All three cases distinguished between the date of issue, when proceedings are started, and when a claim is brought or an application made. The latter is the time when the claim is received by the Court and, per Barnes and, HHJ Purle QC, the proper fee tendered or paid.

Price concerned an application for an extension of time for serving a claim form and other documents. Approximately 7 days before time for service of the claim form expired, an application for an extension of time for service was made and subsequently granted extending time to 25 November 2014. A second application to extend time for service was made before time for service expired and was also subsequently granted. In due course, a third application for an extension of time was made. That application notice was received by the court before time expired but, on this occasion, no fee was tendered or paid. By the time the application was resubmitted with the fee, time for service of the claim form had expired, along with the limitation period. The third application was refused and the claim struck out. On appeal, HHJ Lopez held that an application received by the court but without the appropriate fee was an application that had not been made. CPR Part 23.5, although it refers only to receipt of an application must be read so as to mean received with the proper fee, see [74].

Hamilton concerned a case where a claim form was received by the court together with a fee of £10,000 just before the limitation period expired. It was the wrong fee because the claim included a claim for an injunction which attracted an additional fee of £656. The court refused to accept the claim form because the full fee was not paid. By the time the correct fee had been paid, limitation had expired. The issue for the Court of Appeal was whether the action had been “brought” notwithstanding the underpayment of the fee [37]. After a full review of the authorities, Andrews LJ held that a mistake in the payment of the fee did not prevent a claim being “brought” for the purposes of the Limitation Act 1980. Her reasons were (my summary, with apologies to Andrews LJ):

Counsel could not find any authority dealing with the making of an application pursuant to CPR Part 23.5 during on-going proceedings. As Mr Webb points out, there is no mention of payment of a fee. I also note that the time at which the taking of the fee as required in Schedule 1 in relation to such applications is not specified. This is in contrast to requirements in Schedule 1 relating to other matters such as, for example, an appellant’s notice where the CPFO provides at 2.3 that the fee is “to be taken” “on filing” an appellant’s notice.

The Appellant, having relied on Peterson, Sands and Price to a degree at the hearing to argue that as a claim is not brought until the full fee is tendered therefore, by analogy, an application is not made until the full fee is tendered, understandably, finds itself backtracking a little in the light of Hamilton. Mr Mullin submits that Hamilton is distinguishable from the facts of this case because this case concerns compliance with an unless order not the statutory test under the Limitation Act 1980. It concerns an interim application made pursuant to Part 23, rather than an originating process. Further, the only relief being sought was payment of money, I infer, as opposed to an injunction. He submits that unless orders must be construed strictly and CPR Part 3.9 provides a route for relief from sanctions. Mr Mullin also submits that, as applications are made so frequently, for policy reasons, a strict approach is justified which means the court and the parties should be able to insist on the correct fee being paid when the application is ‘made’. In the circumstances, Hamilton is not binding on me. He submits that Sands and Price are not on point because they refer to making an application rather than bringing a claim. Finally, he submits that the Court of Appeal expressly approved Peterson as to why CPR Part 3.10 cannot save an applicant who does not pay the correct fee. He submits that the reason for this is that the Court of Appeal accepted Eyre J’s conclusion that the obligation to pay the fee comes from the Fees order as opposed to the CPR.

Mr Webb submits that, if proffering an incorrect fee is sufficient for Limitation Act purposes, it would be absurd for the position to be more draconian under the CPR. He relies on various dicta in Hamilton on fees which, he says, are directly relevant to this appeal. Firstly, those at [44] which notes there is no sanction for failing to pay a fee even when the CPR requires payment to be made (e.g. CPR PD 51O). He points to the fact that, there is no sanction regarding payment of fees in the Unless Order and no mention of the payment of fees; nor is there any mention of a sanction anywhere in CPR Part 23 although there are sanctions for failing to pay fees elsewhere in the CPR. In cases where a fee is payable, the court normally serves a notice requiring payment of that fee. Secondly, requiring the payment of the full appropriate fee would be putting form above substance and would not be in the interests of justice, contrary to the words of Andrews LJ at [103] and [104]. Finally, Mr Webb submits that Hamilton said that CPR 3.10 does apply once proceedings have been started.

I accept that Hamilton is not technically binding on me because it is concerned with the bringing of a claim under the Limitation Act 1980 not the making of an application under CPR Part 23. However, I also agree with Mr Webb that the reasoning in Hamilton is applicable to the making of such an application.

It seems to me that a “bright line” is also required in relation to the making of an application. The making of an application, and the taking of a fee and issue are two different events. The first requires the act of the party, the second an act of the court. When an application is made cannot depend on the efficiency of court administration in spotting an underpayment of a fee any more than it can on court administration spotting that the wrong fee has been tendered on a claim. Nor can it depend on the motivation of the applicant in tendering the wrong fee, the means by which an application is delivered to the court or whether a party requires help with fees. That would result in some applications with the wrong fee being “made” while others, in exactly the same position, would not be “made”. As Andrews LJ observed, once a claim has been issued, it has plainly been brought even if the wrong fee was paid. It seems to me that that principle must equally apply to an application. The court can deal with any deliberate abuse by sanctioning the relevant party and, if appropriate, striking out or refusing the application.

The requirement to pay a fee is “on an application”. The CPFO does not state when the fee must be paid only that it must be paid. There is no requirement to pay the fee when the application is “made” or even when it is issued although, in practical terms, it is unlikely that an application will be issued until a fee is paid. CPR 23.5 simply states that an application is “made in time if the application notice is received by the court within that time”. There is no requirement for the correct fee, or any fee, to be paid at exactly the same time.

It seems to me that, as in Hamiliton, how, when and in what sum a fee is paid is a matter between the court and the applicant which has little or no impact on a respondent or defendant. Making a mistake as to the required fee cannot be equated with failing to deliver an application on time. To paraphrase Andrews LJ - can Parliament or the Rules Committee really be taken to have intended that a respondent to an application should be entitled to raise a defence of time-bar to a claim or a defence, even if the application notice received by the court within the time allowed by a court order was otherwise perfectly in order, merely because the claimant or the claimant’s representative failed to pay the whole of the prescribed administrative fee? Like Andrews LJ, I do not believe so. In saying this, it seems to me that an unless order striking out a claim or a defence is the equivalent of barring the pursuance of a claim under the Limitation Act 1980.

I cannot see that the relief sought, as submitted by Mr Mullin, makes any difference, in principle or practical terms, to when an application is made or a claim brought. I acknowledge that the CPR contains provisions that may lead to relief from sanctions, but I cannot see how that is relevant. If the application has been made in time, no relief is required as there is no breach. I do not see how one can interpret or construe CPR Part 23.5 by reference to CPR Part 3.9 because the question of when an application is made cannot depend on the nature or purpose of the application. By this I mean that an application made pursuant to an unless order cannot be made at a different time to, say, an application to amend pleadings, just because it is made pursuant to an unless order.

Of course, unless orders must be construed strictly and be complied with strictly. In the former case to ensure that the sanction applies and, in the latter, to ensure a sanction does, or does not, bite. However, I cannot see how an application that is ordered to be made and is made within the time stipulated in the order in accordance with CPR 23.5 must somehow be construed as including compliance with some further unspecified condition such as payment of a fee. That would undermine the requirement that an unless order must clearly state the steps a party must take before a sanction can be imposed. As Mr Webb says, if DDJ Perry intended payment of the fee to be made at a particular time as opposed to being paid at all, he could have said so. Courts often make orders which require payment of the appropriate fee.

For the reasons given by Andrews LJ, I do not accept the submission that “parties” are entitled to insist on the correct fee being paid - that is a matter between the court and the applicant. Nor do I accept the submission that CPR Part 3.10 has no application to the payment, or non-payment of fees as a general principle. The Court of Appeal agreed only that CPR Part 3.10 could not apply until after proceedings had been commenced. It made no comment at all on its application thereafter not least, because the issue did not arise in Hamilton. Nor does it arise in this case.

For the reasons given above, in my judgment, as the Respondents complied with CPR Part 23.5 by delivering their application notice to the court, and by tendering and paying a fee, albeit the wrong fee, they complied with the Unless Order because they “made” their application within the time stipulated. Accordingly, both grounds of appeal fail. Whether DDJ Perry was correct to say he had no jurisdiction to consider whether the application was made in time does not need to be decided because his decision can be, and is, upheld on the third ground in the Respondent’s Notice, namely that an application is made when the application notice is delivered to the court office with a fee, even if it is the wrong fee. It follows, that DDJ Piperdy made no error either.

Given my conclusion, it is unnecessary to address the first two grounds in the Respondent’s Notice in any detail. I will only say that, in my view, £119 was not the correct fee as it does not seem to me that the application fell within any of the exceptions set out in the notes to CPR 23.4, paragraph 3 of Practice Direction 23A or the other recognised ‘without notice’ exceptions found in other parts of the CPR. Further, it obvious that the Appellants needed to know that the claim was still ongoing. CPR Part 1.3 imposes a duty on the parties to help the court to further the overriding objective. It is difficult to see how they could comply with this duty if they must first await a court telling them what they must do.

The Appeal against both Orders is refused.