PAYING THE CORRECT COURT FEE, AMENDMENT & STRIKING OUT: ANOTHER DECISION

There have been a number of cases in relation to the consequences for a claimant when the correct court fee has not been paid upon issue.  This issue was considered by His Honour Judge Robinson this week in an appeal in the case of Wiseman -v- Marston’s PLC (Sheffield County Court 21st December 2016).

(This was an extempore judgment. This post is based on my own notes of the judgment  where I represented the claimant. The claimant has given her permission for this case to be reported).

KEY POINTS

  • A failure by a solicitor to put the correct value on the claim and pay the correct fee was not an abuse of process.
  • The court should allow the claimant’s application to amend the statement of value.
  • The defendant’s applications for summary judgment and to strike out the claim as an abuse of process were dismissed.

THE CASE

The claimant brought an action for damages following an accident she suffered on the 15th January 2013.

  • The claimant’s solicitor sent the papers to counsel  for an advice on quantum before issue but was informed that there was going to be a delay in return of the papers.
  • Because the limitation period was imminent a claim form was issued which limited the claim to £50,000, a court fee of £2,500 was paid.
  • When the papers were returned from counsel, with a schedule, it was clear that the claim had a value greatly in excess of £200,000.
  • The claimant promptly served the Particulars and Schedule of Damages and made an application to amend the statement of value to more than £200,000.
  • The defendant made two applications – for summary judgment or that the claim be struck out as an abuse of process. Both of these applications being based on the failure to pay the correct fee.

THE APPLICATION BEFORE THE DISTRICT JUDGE

The application before the District Judge was heard in April 2016.  She held that the claimant’s solicitors failure to properly quantify the claim prior to issue was an abuse of process. (The claimant’s solicitor had candidly admitted that, if he had considered the issue with sufficient case, it would have been clear that the claim had a higher value than £50,000).

The District Judge

  • Refused the claimant’s application to amend the statement of value.
  • Stated that she need not make any order on the Defendant’s applications.
  • Ordered the claimant to pay the defendant’s costs of the applications.

THE APPEAL TO THE CIRCUIT JUDGE

Both sides appealed the order of the District Judge. The claimant argued that she should have been given permission to amend; the defendant that its applications should have been allowed, or at least some order made on its applications.

THE DECISION OF THE CIRCUIT JUDGE: THE CLAIMANT’S APPEAL

The Circuit Judge allowed the claimant’s appeal.  The key question in the case was whether the claimant’s actions were an “abuse of process”. The question of what was an abuse of process was not a matter of judicial discretion.

THIS WAS NOT AN ABUSE OF PROCESS

The Circuit Judge stated that there was a world of difference between a solicitor who “played the system” and deliberately issued proceedings paying a low court fee with the intention of amending if the case looked as if it it had good prospects and the current case.  In the current case a competent solicitor knew he had to issue to avoid limitation problems.  That solicitor did not fully engage his mind to the true value of the case. However he did conclude that the value was substantial and paid a court fee of £2,500.

Once counsel’s advice was received the solicitor immediately took steps to remedy the situation. Proceedings were served promptly (and properly) and a prompt application made to amend the statement of value (the increased fee had been paid and kept by the court).

The judge commented:

“I cannot think of anything further away from abuse of process than that”. 

ABUSE OF PROCESS COULD BE RECTIFIED

The judge also commented that even if he had held that the actions were an abuse of process (which they were not) the actions afterwards would have ended the abuse. The prompt service of proceedings and prompt application amended the abuse.

The judge also rejected the defendant’s argument that serving a claim form limited to £50,000 with Particulars and a Schedule showing a figure much higher than that was an abuse.  The claimant was not to be penalised for serving promptly and letting the defendant know the case it had to meet.  The claimant could have amended, prior to service, without permission and the onus would be on the defendant to set that aside.

AMENDMENT SHOULD HAVE BEEN ALLOWED

The judge held that the District Judge had erred in not considering, and applying, the traditional approach to amendment.

  • The application to amend had been made promptly.
  • The injustice to the claimant in refusing the application to amend was immense.
  • There was no prejudice to the defendant, other than having to pay an additional £7,500 in court fees (and appropriate damages).

THE DEFENDANT’S APPEAL

The Circuit Judge held that the District Judge should have made some order on the Defendant’s applications.  He dismissed them both.  (The defendant was ordered to pay most of the costs before the District Judge and the costs of the appeal).

COMMENT

The judge observed, that unlike the District Judge, he had the advantage of the later authorities on this issue, since Richard Lewis & Others -v- Ward Hadaway [2015] EWHC 3503 (Ch

.  The judge reviewed the authorities in some detail, in particular

  • The decision of Mr Justice Stuart-Smith in Dixon -v- Radley House Partnership [2016] EWHC 2411 (TCC). (Appropriate fee is determined by reference to the figure stated on the claim form).
  • Mr Roger ter Haar QC (sitting as a High Court Judge) in Glenluce Fishing Company Limited -v- Watermota Limited[2016] EWHC 1807 (TCC).  (Amendment of statement of value considered by using “traditional” principles in relation to amendment).
  • The judge also accepted and adopted the observations made by His Honour Judge Goldsmark QC in Wells -v- Wood & Nottinghamshire Council (Lincoln County Court 09/12/2016) (Claim for issued for limitation purposes, regardless of incorrect fee being paid) [A copy of that judgment is available here  b78ym721-wells-v-wood-notts-cc-judgment-final]

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3 comments

  1. Reblogged this on | truthaholics and commented:
    “The judge observed, that unlike the District Judge, he had the advantage of the later authorities on this issue, since Richard Lewis & Others -v- Ward Hadaway [2015] EWHC 3503 (Ch

    . The judge reviewed the authorities in some detail, in particular

    The decision of Mr Justice Stuart-Smith in Dixon -v- Radley House Partnership [2016] EWHC 2411 (TCC). (Appropriate fee is determined by reference to the figure stated on the claim form).
    Mr Roger ter Haar QC (sitting as a High Court Judge) in Glenluce Fishing Company Limited -v- Watermota Limited[2016] EWHC 1807 (TCC). (Amendment of statement of value considered by using “traditional” principles in relation to amendment).
    The judge also accepted and adopted the observations made by His Honour Judge Goldsmark QC in Wells -v- Wood & Nottinghamshire Council (Lincoln County Court 09/12/2016) (Claim for issued for limitation purposes, regardless of incorrect fee being paid) [A copy of that judgment is available here b78ym721-wells-v-wood-notts-cc-judgment-final]”

  2. Sean McCormack · · Reply

    Dear Gordon,

    Couldn’t the C’s solicitor have amended before service and then done so without need for permission or agreement?

    Sean McCormack
    Solicitor
    Rollingsons Solicitors Ltd | 10 Fetter Lane | London EC4A 1BR
    Switch: 020 7611 4848 Facsimile: 020 7611 4849 Direct Dial: 0207 611 4846
    http://www.rollingsons.co.uk

  3. He could. That is mentioned in my note of the judgment. “The claimant was not to be penalised for serving promptly and letting the defendant know the case it had to meet. The claimant could have amended, prior to service, without permission and the onus would be on the defendant to set that aside.” In all likelihood the defendant would have attempted to have the amendment set aside and the same issues would have been raised. The judge was anxious that the claimant was not penalised for transparency.

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