The Court of Appeal has refused to consider a circuit judge ruling which held that failure by a solicitor to correctly value a personal injury claim and pay the right court fee did not amount to an abuse of process.
His Honour Judge Robinson said the solicitor originally valued the claim at £50,000 or less, and paid a fee £2,500, but later sought to increase the damages claimed to over £500,000, requiring a fee of £10,000.
However, the judge said that in this case, he could not “think of anything further away from abusive conduct”.
HHJ Robinson said the “competent, well respected” solicitor involved was “bang up against the limitation period” and knew he had to issue.
“Counsel’s advice is awaited, but will not be received until after the limitation period has expired. He knows he has an open admission of liability.
“It appears that he does not engage his mind as to the value of the claim, but he knows it is substantial. He fixes on £50,000 as the appropriate fee to state on the claim form, resulting in an obligation to pay the substantial fee of £2,500, being 5% of the sum claimed.
“Once counsel’s advice is obtained and he has the particulars of claim, he takes immediate steps to serve what he has.
“Rather than delay until mid-April, which is four months after issue, he also applies promptly for permission to amend the claim form, so the proper value is shown and the proper fee paid.”
Judge Robinson said that “even if the original act of issue was abusive – and I am firmly of the view that it is not – the actions of the claimant by her solicitor thereafter the cured the abuse”.
He described the actions as “prompt service of the pleadings and a prompt application to amend”.
The court heard in Wiseman v Marstons plc, heard at Sheffield Combined Court Centre, that damages were claimed following a workplace accident and the defendant admitted liability.
A claim form was issued in December 2015, but in February 2016 the claimant sought to amend the form by increasing the amount of damages to over £500,000.
The defendant sought an order striking out the claim as an abuse of process under rule 3.4. The defendant also sought summary judgment under the Limitation Act 1980, on the grounds that the “stated value on the claim form was false, the fee paid was incorrect and thus the limitation clock did not stop”.
Judge Robinson said there was something “deeply unattractive” in the defendant’s claim for abuse of process.
“There is no prejudice to the defendant other than that the defendant must now compensate the claimant in full rather than only partially and will probably have to pay by way of costs, subject to any relevant and valid part 36 offer, an additional £7,500, being the extra fee that the claimant has to pay in order to bring the claim before the court.
“On the other hand, the injustice to the claimant would be immense and, in any event – and, whether it is relevant or not, it is nevertheless a fact – would further occupy the time of the court with the inevitable claim by the claimant against her own solicitor, thus litigation would be multiplied.”
HHJ Robinson said it emerged during the hearing that the claimant’s lawyer had already paid the additional £7,500 in court fees.
He allowed the claimant’s appeal against the decision of a district judge, who refused her 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 Court of Appeal rejected last month an application from the defendant for leave to appeal.
In the order refusing permission, Lord Justice Jackson said the proposed appeal had no real prospect of success and did not raise “any important point of principle or practice”.
Jackson LJ said the error made by the claimant solicitor in this case was “quite unlike” the leading case of Lewis v Ward Hadaway, “where there was deliberate conduct designed to avoid paying the correct fee”.
He went on: “The claimant applied promptly to amend, and tendered the correct court fee. Whilst the court nowadays quite properly adopts a more restrictive approach towards allowing amendments, it was obviously appropriate to grant this particular application, essentially for the reasons given by HHJ Robinson.”
The original ruling, though dating back to late last year, has only just been published by barrister Gordon Exall, who acted for the claimant.