Claim against law firm within limitation period despite “unconnected” abuse of process

High Court: Predicted value of claim “wholly unrealistic”

A professional negligence claim was brought within the limitation period despite an “unconnected” abuse of process over the court fee paid, the High Court has held.

Mr Justice Turner said that providing an incorrect statement of value on the claim form “for tactical reasons” was abuse, but not “sufficiently egregious” for the claim against Middlesbrough personal injury law firm Atha & Co to be struck out.

Atha argued that, because of the incorrect value and court fee paid, the limitation period should run from when the claim was issued by the court, rather than when it was received 10 days earlier – which would have meant it was beyond the limitation period.

Despite finding abuse of process by the claimant, Turner J said he “remained to be persuaded” that this was a “necessary or sufficient consideration” in determining the question of limitation.

He said that although some might argue that a party guilty of abuse should not be able to take advantage of the “relatively indulgent approach” on limitation taken by the Court of Appeal in Barnes v St Helens Metropolitan Borough Council [2007] 1 WLR 879, courts retained a power in “any given case” to strike out a claim for “sufficiently egregious” abuse.

“Where, as here, the abuse falls very short of such a level and has no impact on the timing of the issue of the claim, then it may be thought that it would be wrong in principle to permit the provisions of the 1980 Act to be deployed as a tool of retrospective and disproportionately draconian discipline.”

The court heard in Atha & Solicitors v Liddle [2018] EWHC 1751 (QB) that Zoe Liddle fell off her chair at work, but her employers denied liability, saying there was nothing wrong with it.

Ms Liddle’s solicitors, Atha & Co, discontinued the claim after a jointly instructed expert concluded that there was nothing wrong with the chair and Ms Liddle had probably “leant over too far and caused it to topple over”.

Turner J said: “The claimant was not happy with how her solicitors had dealt with her case. She went to see other solicitors and told them that she had not agreed to the discontinuance of proceedings and contended that, as a result of her previous solicitors’ breach of duty, she had lost a potentially valuable claim against her employers.”

Proceedings were brought against Atha & Co, which applied to strike out the claim, or for summary judgment, on the grounds that the claim was statute-barred.

Turner J said the law firm sent formal notice of discontinuance of Ms Liddle’s personal injury claim on 31 March 2010, so the six-year limitation period for her professional negligence claim expired on 31 March 2016.

“The claim form relating to this claim was received by the court on 29 March 2016 but not issued until 7 April 2016. If the claim is taken to have been brought on the earlier date then it is in time. If it was brought on the later date, it is not and the defendant has a complete defence.”

Atha & Co conceded that, for limitation purposes, a claim was brought when the claim form was received by the court, but in this case the claimants’ solicitor paid the incorrect issue fee – an abuse of process, the “automatic consequence of which is that the claim was not brought until the claim form was issued and it is thus out of time”.

HHJ Mark Gargan ruled at Middlesbrough County Court that there was no abuse of process.

Turner J rejected this, saying that although quantifying the value of the claim was difficult, it was clear that the solicitor had not come to a “genuine and concluded view at the time of drafting” that the claim form was worth less than £25,000.

“Not only did she refuse the defendant’s part 36 offer but she also served a costs budget estimating the claimant’s costs to trial in the sum of £192,369.40, which is hardly proportionate expenditure on a case worth no more than £25,000.”

Turner J said the particulars of claim pleaded that Ms Liddle was still ‘wheelchair bound’, making a predicted value of £25,000 “wholly unrealistic”.

He went on: “The ordinary and proper use of the court process when providing the statement of value on a claim form involves the recording of the unvarnished truth.”

Turner J said the parties were agreed at the county court that if there was an abuse of process then the defendant’s application would automatically succeed. However, he “remained to be persuaded”.

Dismissing the law firm’s appeal, he added “by way of postscript” that the “proliferation of irreconcilable first instance decisions over the last few years” made the time ripe for authoritative guidance from the Court of Appeal.

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