Underpayment of Issue Fee Does Not Prevent an Action Being “Brought” for Limitation Purposes on Receipt of the Claim Form

Case: Siniakovich v Hassan-Soudey & Ors [2026] EWCA Civ 215 (CA (Civil Division), 4 March 2026)

1. Introduction

This appeal arose from a defamation and malicious falsehood claim brought by the claimant (“C”) against three defendants (“D1–D3”). The core practical problem was a last-minute electronic filing via CE-File shortly before expiry of the one-year limitation period in s.4A Limitation Act 1980. C’s solicitor paid the issue fee calculated for a money claim only, although the Particulars of Claim (filed at the same time) sought non-monetary relief (including an injunction and a Data Protection Act compliance order), which attracted an additional fee.

The court office rejected the filing for underpayment and the claim form was sealed later, outside the limitation period for defamation. C then applied for “backdating” and obtained an order purporting (i) to treat the claim as issued earlier and (ii) to “deem” the claim to have been brought earlier. D2 and D3 appealed on jurisdiction, error of law, unfairness, and perversity; D1 separately appealed on procedural unfairness (no notice of the hearing).

The Court of Appeal used the case to determine a point of general importance not previously decided by it: does failure to pay the correct issue fee mean an action is not “brought” for limitation purposes when the claim form is received by the court office? The Court answered: no.

2. Summary of the Judgment

  • No jurisdiction to “backdate” issue or to deem an action brought on a different date: the High Court’s order granting such relief was made without power. CPR r.3.10 and CPR r.3.1(2)(p) could not be used to cure pre-commencement fee defects or alter limitation consequences.
  • CPR r.3.9 was inapplicable: underpayment of an issue fee is not a “sanction” situation; there was also no proper application.
  • Key new holding on limitation: an action is “brought” for Limitation Act purposes when the claim form is delivered/received in the court office even if the correct fee has not been paid and (in CE-File terms) the submission “fails Acceptance” and is deemed not issued. The underpayment may affect issue, but it does not postpone the date the action is “brought”.
  • Page (No 2) was wrongly decided insofar as it treated underpayment as preventing an action being “brought”.
  • Fee assessment point: where the claim form and Particulars of Claim are filed together and intended to be read together, the court office was entitled to calculate the issue fee by reference to the non-monetary relief pleaded in the Particulars of Claim. There was therefore a shortfall.
  • Disposal: both appeals allowed; paragraphs 4 and 5 of the order set aside. No declaration was made, because the Court’s ruling that the claim was not time-barred sufficed.

3. Analysis

3.1 Precedents Cited

(a) The “brought” date: Barnes and Page

The decision builds directly on Barnes v St Helen's Metropolitan Borough Council [2006] EWCA Civ 1372; [2007] 1 WLR 879, where the Court of Appeal upheld PD7A’s guidance that a claim is “brought” when the claim form is received in the court office, rather than on the later date of issue under CPR r.7.2. Barnes was a risk-allocation case: limitation should not depend on court administrative delays.

Page v Hewitts Solicitors [2012] EWCA Civ 805; [2012] CP Rep 40 reaffirmed Barnes and framed the policy as one of stopping the claimant’s limitation risk once the request to issue is delivered. The Court here emphasised that Barnes/Page did not decide the fee-underpayment question.

(b) Page (No 2) and the first-instance divergence

In Page (No 2) [2013] EWHC 2845 (Ch), Hildyard J held that a shortfall in the issue fee meant the action had not been “brought” in time. The Court of Appeal in Siniakovich held that this approach rested on a misreading of Page and should not be followed: it wrongly converted policy language (“all that is in your power”) into a legal threshold test for when an action is “brought”.

The judgment also situates and evaluates the competing first-instance strands:

  • Lewis v Ward Hadaway [2015] EWHC 3503 (Ch); [2016] 4 WLR 6 (deliberate understatement; abuse of process);
  • Bhatti v Ashgar [2016] EWHC 1049 (QB); [2016] 3 Costs LR 493 (fee assessed by claim form plus concurrent particulars; limitation point left to trial);
  • Dixon v Radley House Partnership (A Firm) [2016] EWHC 2511 (TCC); [2017] CP Rep 4 (rejecting the “nuclear option” of automatic time-bar; sceptical of mind-state inquiries);
  • Liddle v Atha & Co Solicitors [2018] EWHC 1751 (QB); [2018] 1 WLR 4953 (abuse found but claim not struck out; limitation not defeated by fee shortfall).

Siniakovich resolves this divergence at appellate level: underpayment does not move the “brought” date.

(c) CPR r.3.10 / r.3.9 and the “backdating” misconception: Peterson, Gotti, Yesss (A), Bali

The Court endorsed the thrust of Peterson v Howard de Walden Estates Ltd [2023] EWHC 929 (KB); [2023] 1 WLR 3057: CPR r.3.10 cannot be used to remedy non-payment of the correct initiating fee, because it is not an “error of procedure” after commencement and the fee obligation derives from the Fees Order. It also relied on Gotti v Perrett [2025] EWCA Civ 1168 (approving Peterson’s limits for CPR r.3.10) and Yesss (A) Electrical Ltd v Warren [2024] EWCA Civ 14 (CPR r.3.9 is confined to “sanction” situations).

The Court applied Bali v 1-2 Couriers Ltd [2025] EWCA Civ 1413 for the distinct proposition that the court has no jurisdiction to backdate the date of issue; the key limitation date is when the action is “brought”, which can pre-date issue.

(d) Hayes and Chelfat: stepping-stones and course correction

Hayes v Butters and another [2021] EWCA Civ 252; [2021] 1 WLR 2886 was not itself an “action brought” case but discussed the fee cases. In Hayes, Peter Jackson LJ stated that the proposition “issued in time but wrong fee = time-bar” was not correct, and Lewison LJ cautioned against reading earlier judgments as statutory tests. Siniakovich takes that caution seriously and treats Hayes as undercutting Page (No 2)’s interpretation.

Chelfat v Hutchinson 3G UK Ltd [2022] EWCA Civ 455; [2022] 1 WLR 2613 concerned wrongful refusal to issue for failure to file Form N510. Coulson LJ adopted a “necessary and sufficient” formulation (doing what is reasonably required to cause issue). Siniakovich treats Chelfat as proceeding on an assumption that a “do all you can” threshold exists, but holds that assumption was not tested and should not govern the statutory meaning of “brought”.

(e) Other authorities deployed

  • Volpi v Volpi [2022] EWCA Civ 464; [2022] 4 WLR 48: the Court used the “plainly wrong” standard to overturn the High Court’s key factual findings about intention and “incorrect pleadings”.
  • Riniker v University College London (unreported, 31 March 1999) and Aly v Aly (1 January 1984); (1984) 81 LSG 283: cited historically to illustrate the theme that litigants should not be prejudiced by court-office shortcomings—though Siniakovich rejects turning that theme into a fault-based limitation test.
  • Glenluce Fishing Co Ltd v Watermota Ltd [2016] EWHC 1807; [2016] 5 Costs LR 1021: noted as criticising over-extension of Barnes/Page in certain first instance decisions.
  • Libyan Investments v King [2020] EWCA Civ 1690; [2021] 1 WLR 2659 and Evans v CIG Mon Cymru Ltd [2008] EWCA Civ 390; [2008] 1 WLR 2675: relied on for the principle that documents intended to be read together may be read together—supporting fee assessment by reference to the concurrently filed Particulars of Claim.
  • Denton v White [2014] EWCA Civ 906; [2014] 1 WLR 3926: relevant below, but the Court held the judge should not have applied CPR r.3.9 at all in this context.
  • Quinton v Peirce [2009] EWHC 192 (QB); [2009] FSR 17 and Duchess of Sussex v Associated Newspapers Ltd [2021] EWHC 510 (Ch); [2021] EMLR 15: cited in a note to confirm the court cannot order an apology; the proper statutory mechanism is (where appropriate) a summary of judgment under s.12 Defamation Act 2013.

3.2 Legal Reasoning

(a) Separating “issue” from “brought”

The Court insists on conceptual clarity: CPR r.7.2 defines when proceedings are “started” (issue by the court), but the Limitation Act asks when an action is “brought”. Barnes/Page establish that “brought” can occur earlier—on delivery/receipt by the court office. The High Court’s fixation with “backdating issue” was therefore misdirected.

(b) Bright-line statutory meaning; rejecting mind-state and fault as determinants

The Court treats “brought” as a matter of statutory interpretation requiring a readily ascertainable bright line. It rejects approaches that would make limitation turn on:

  • the claimant’s or solicitor’s intention or bona fides;
  • whether underpayment was inadvertent or deliberate (save for separate abuse-of-process responses);
  • the speed with which the court office detects and notifies a fee defect.

The Court considered it unacceptable that identical fee mistakes could produce opposite limitation outcomes depending on administrative turnaround times.

(c) Underpayment is administratively relevant but substantively irrelevant to “bringing”

The judgment’s core move is to characterise payment of a court fee as an administrative prerequisite to issue, not an element of the substantive act of “bringing” an action for limitation purposes. Underpayment may justify the court office refusing to issue (especially under electronic filing rules), but it does not erase the fact that the claimant delivered a claim form that brings the cause of action to the court.

(d) Fee remission (Help with Fees) as a structural refutation of “fee paid in full” as a condition of “brought”

The Court relies heavily on the practical and legal reality of fee remission. Claimants applying for Help with Fees cannot, by definition, pay the full fee at delivery; yet their claims are still treated as brought when lodged. The Court reasoned that the meaning of “brought” cannot vary by wealth, representation, or the mechanics of fee processing.

(e) Misuse of CPR r.3.10 / r.3.1 / r.3.9

The Court held that case-management powers cannot be used to rewrite limitation outcomes or to “deem” an action brought on a date it was not. CPR r.3.10 addresses procedural errors in proceedings once properly commenced, not failure to satisfy fee requirements imposed by a statutory instrument. CPR r.3.9 applies only where there is a sanction for non-compliance with a rule/order/PD; here the “consequence” flows from the Limitation Act, not from a CPR sanction.

(f) Application to the facts

On 27 March 2025 C’s solicitor delivered, via CE-File, a claim form stating the action for defamation and malicious falsehood and identifying the parties. Although the filing failed Acceptance because of an additional fee shortfall (arising from the concurrently filed Particulars of Claim), the action was nonetheless “brought” on 27 March 2025, within the s.4A limitation period for defamation.

3.3 Impact

(a) Doctrinal impact: settling an unresolved Court of Appeal issue

The judgment establishes (for Limitation Act purposes and analogous statutory schemes) that underpayment of the correct issue fee does not prevent an action being “brought” when the claim form is received by the court office. This resolves the conflict between Page (No 2) and later first-instance decisions and removes a significant source of uncertainty.

(b) Practical impact: fewer “satellite” limitation disputes driven by court-office timing

The decision reduces the scope for defendants to run limitation defences based solely on fee miscalculations detected before issue, and prevents outcomes turning on how quickly the court office identifies a shortfall.

(c) Incentives and safeguards: abuse-of-process remains available

The Court expressly guards against reading the judgment as licensing tactical underpayment: deliberate undervaluation or manipulation of fees can still attract robust responses (including, in egregious cases, strike out). The key point is that those responses are not the limitation consequence of redefining when an action is “brought”.

(d) Continuing importance of s.32A Limitation Act 1980 in defamation

Although no application was made under s.32A (the discretionary extension for defamation/malicious falsehood), the judgment underscores that where a limitation issue truly exists, that statutory discretion—not CPR “backdating”—is the proper mechanism.

4. Complex Concepts Simplified

“Action is brought” (Limitation Act 1980)
A limitation concept: the claimant must “bring” an action within time. Under Barnes/Page (and now Siniakovich), this occurs when the claim form is received in the court office, not necessarily when the court later seals (“issues”) it.
Issue vs filing vs receipt
  • Receipt/delivery: the claim form arrives at the court office.
  • Filing: defined (CPR glossary) as delivering a document to the court office.
  • Issue: the court seals the claim form (CPR r.7.2). Fees are generally payable “on starting proceedings”, i.e. on issue.
The judgment holds that limitation turns on receipt/delivery, not on issue, and underpayment affecting issue does not change the “brought” date.
CE-File “Acceptance” (PD 51O)
Under the electronic working scheme, a submission can “fail Acceptance” (e.g. wrong fee), with the effect that it is deemed not issued. Siniakovich holds that “deemed not issued” does not answer the separate statutory question of when the action was “brought” for limitation purposes.
CPR r.3.10 and r.3.9
  • CPR r.3.10: cures procedural errors; it is not a general power to rewrite statutory limitation consequences or fix initiating-fee defects.
  • CPR r.3.9: relief from sanctions; it applies only where there is an actual sanction for non-compliance. Underpayment of an issue fee is not such a sanction scenario.
Non-monetary relief and issue fees
Under the Fees Order, a claim seeking money plus “any other remedy” can attract an additional fee. If Particulars of Claim are filed with the claim form and intended to be read together, the court may assess the fee by reference to both documents.

5. Conclusion

Siniakovich v Hassan-Soudey & Ors is principally a limitation decision, not a fees decision: it clarifies that fee underpayment affecting issue does not delay the date an action is “brought” once a claim form is received by the court. The Court of Appeal simultaneously reaffirmed strict boundaries on procedural “cures”: CPR case-management powers cannot backdate issue, deem actions brought on different dates, or substitute for statutory limitation discretions.

The judgment promotes legal certainty by adopting a bright-line rule anchored in delivery/receipt of the claim form, while preserving the court’s ability to police deliberate fee abuse through orthodox procedural sanctions rather than through artificial limitation outcomes.