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Relief from sanctions granted where the Appellant failed to pay the court fee - Silber v London Borough of Barnet

Relief from sanctions granted where the Appellant failed to pay the court fee – Silber v London Borough of Barnet (HOUSING – CIVIL PENALTY – case struck out by FTT for failure to pay the hearing fee – criteria for relief from sanctions) [2021] UKUT 206 (LC) (13 August 2021)

Background

This is an appeal case from the First Tier Tribunal (FTT) to the Upper Tribunal (UT) to reinstate the Appellant’s appeal against a financial penalty notice where her claim was struck out by the FTT after failing to pay the hearing fee.

Procedural history

  • The Respondent imposed a financial penalty of £7,000.00 on the Appellant under Section 72(1) of the Housing Act 2004.
  • The Appellant appealed to the FTT.
  • The FTT gave directions and listed the appeal hearing for 26 March 2021.
  • FTT Directions required the hearing fee of £200 to be paid within 14 days. The fee was not paid.
  • On 30 December 2020 the FTT wrote to the Appellant stating the application would be withdrawn if no fee was received. The fee was not paid, and the appeal was withdrawn on 19 January 2021.

Application in the FTT

  • The Appellant’s solicitor made an application on 26 January 2021 for relief from sanction and to reinstate the application for appeal.
  • The Appellant’s position was he did not realise a hearing fee was required as well as the application fee and the solicitor had been abroad with limited internet and then in quarantine.
  • It was the Respondent’s position that the Appellant’s solicitor had access to emails and could have instructed a colleague to deal in his absence.
  • The FTT refused the Appellant’s application to reinstate the application for appeal.
  • The Appellant appealed to the UT.

 Appeal to the UT

  • The decision to refuse relief is discretionary and the UT will not interfere until a serious error could be shown.
  • The Denton criteria was neither mentioned nor followed in the FTT.
  • The merit of the case is not relevant to the decision about the relief from sanctions.
  • The FTT decision was set aside.

UT applying the Denton three state test

  • The Court of Appeal in Denton said a failure to pay a court fee is a serious default.
  • The default occurred because the Appellant’s solicitor failed to notice the FTT requested a hearing fee in addition to the application fee and he was unable to delegate to his colleagues who were criminal lawyers.
  • When considering all the circumstances, the reinstatement of the case would have had no effect at the time on the conduct of the litigation as the hearing was weeks away. The striking out of the case is disproportionate in response to the minor error made by the Appellant’s solicitor.

UT’s decision

  • The appeal succeeds.
  • The FTT decision is set aside.
  • The Appellant’s case is reinstated in the FTT.

Note

This case is an important reminder for litigators to always consider carefully and diarise directions provided by the Court. If relief from sanction is required, the 3-stage test in Denton should be considered when the decision is made.

Should you have any queries or require any assistance on costs related relief from sanctions applications or any other legal costs matters, please do contact our specialists and award-winning team on 01733 350 880 or by email at mail@aandmbacon.co.uk.

Published 26.08.21

 

 

 

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