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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Atha & Co Solicitors v Liddle  EWHC 1751 (QB) (09 July 2018)
Cite as:  1 WLR 4953,  WLR(D) 422,  EWHC 1751 (QB),  WLR 4953
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QUEEN'S BENCH DIVISION
ON APPEAL FROM THE MIDDLESBROUGH COUNTY COURT
ORDER OF HHJ MARK GARGAN
DATED 13 DECEMBER 2017
Strand, London, WC2A 2LL
B e f o r e :
| Atha & Co Solicitors
|- and -
Howard Elgot (instructed by Sintons Solicitors) for the Respondent/Claimant
Hearing dates: 25th June 2018
Crown Copyright ©
Mr Justice Turner :
THE CLAIM FORM
"Statement of value to be included in the claim form
(1) This rule applies where the claimant is making a claim for money.
(2) The claimant must, in the claim form, state –
(a) the amount of money claimed;
(b) that the claimant expects to recover –
(i) not more than £10,000;
(ii) more than £10,000 but not more than £25,000; or
(iii) more than £25,000; or
(c) that the claimant cannot say how much is likely to be recovered."
"Full details of the financial loss cannot yet be calculated as the medical evidence in relation to the claim was incomplete. Further medical evidence needs to be obtained. In addition, enquiries must be made in relation to special damages that the claimant would be entitled to claim."
ABUSE OF PROCESS
"Of course, the court has power to strike out a prima facie valid claim where there is abuse of process. However there has to be an abuse, and striking out has to be supportive of the overriding objective. It does not follow from this that in all cases of abuse the correct response is to strike out the claim. In a strike-out application the proportionality of the sanction is very much in issue…The striking out of a valid claim should be the last option. If the abuse can be addressed by a less draconian course, it should be."
"Time limit for actions founded on tort.
An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued."
"Start of proceedings
5.1 Proceedings are started when the court issues a claim form at the request of the claimant (see rule 7.2) but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is "brought" for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date.
5.2 The date on which the claim form was received by the court will be recorded by a date stamp either on the claim form held on the court file or on the letter that accompanied the claim form when it was received by the court.
5.3 An enquiry as to the date on which the claim form was received by the court should be directed to a court officer.
5.4 Parties proposing to start a claim which is approaching the expiry of the limitation period should recognise the potential importance of establishing the date the claim form was received by the court and should themselves make arrangements to record the date."
"I start simply by looking at the words used in the statute and the Rules. I approach them by expecting to find the expiry of a limitation period fixed by reference to something which the claimant has to do, rather than something which someone else such as the court has to do. The time at which a claimant "brings" his claim form to the court with a request that it be issued is something he has to do; the time at which his request is complied with is not because it is done by the court and is something over which he has no real control. Put another way one act is unilateral and the other is transactional. Looked at in this way I do not agree with the judge or Mr Norman that in this context the verb "to bring" has the same meaning as the verb "to start". The 1980 Act can perfectly properly be construed so that in the context of the CPR a claim is brought when the claimant's request for the issue of a claim form (together with the court fee) is delivered to the court office. Paragraph 5 of the Practice Direction gives sensible guidance to ensure that the actual date of delivery is readily ascertainable by recording the date of receipt."
"I do not see that receipt of the claim form by the court office involves any transactional act. The court staff who receive the documents are not performing any judicial function and have no power to reject them."
"29 In my judgment this was the wrong subject matter to debate. When an action is "brought" for the purpose of the Limitation Act 1980 is, in my judgment, a question of construction of the Act. It is not a question of construction of the CPR, let alone a question of construction of a Practice Direction. The CPR (and perhaps the Practice Direction) may inform the construction, but the question remains: what does the Act mean?"
"32 Taken literally, the ratio of Barnes v St Helens Metropolitan Borough Council is that once the claimant has delivered his request for the issue of a claim form to the court office, he has "brought" his action…
33 However, literalism is not fashionable, so it is also necessary to consider the policy that underpins the decision. Tuckey LJ dealt with this too. He pointed out that this meant that a claimant had the full period of limitation within which to "bring" his claim; and that it would be unjust if he had to take the risk that the court would fail to process it in time. It does not seem to me that the reason why the court fails to process the request in time alters the justice of the case. If it is unjust for the claimant to take the risk that the court staff are on strike, it seems to me to be equally unjust for him to have to take the risk that a member of the court staff might erroneously put his request in the shredder or the confidential waste, or that his request is destroyed by flood or fire in the court office, or is taken in a burglary. Each of these might be reasons why the court failed to process the request in time. Essentially the construction of the Act that this court favoured in Barnes v St Helens Metropolitan Borough Council is based on risk allocation. The claimant's risk stops once he has delivered his request (accompanied by the claim form and fee) to the court office. PD 7 cannot, in my judgment, alter the correct construction of the Act.
34 This is not a new approach. In Aly v Aly (1 January 1984), which also concerned time limits in the context of limitation periods, Eveleigh LJ said:
"It would be indeed surprising and harsh if a party who had done all that was required of him, should find himself unable to obtain the assistance of the court because the court itself had failed in some matter of procedure. Furthermore, when the rules lay down a time limit which has to be observed by a party to the litigation, their aim is to achieve whatever particular purpose is in mind by controlling the action of the party, and where on the reading of the appropriate rule that seems to be its intention it would be quite ridiculous, as I see it, to make the party responsible for anything that has subsequently to be done by the court."
35 Thus the Court of Appeal held that:
"… one can only treat the words "apply to the Court" as meaning doing all that is in your power to do to set the wheels of justice in motion according to the procedure that is laid down for the pursuit of the relief which you are asking."
36 Likewise in Riniker v University College London (31 March 1999) the Court of Appeal held that when a draft writ was in the custody of a proper court officer and in proper form the court had an inherent jurisdiction to treat it as issued on the day on which it was received. The underlying theme is, in my judgment, that a would-be litigant is not responsible for any shortcomings of the court…
38 If, therefore, the claimants establish that the claim form was delivered in due time to the court office, accompanied by a request to issue and the appropriate fee, the action would not, in my judgment, be statute barred. In my judgment both the Master and the judge were wrong to hold the contrary."
"27…5. Mr Lomax had retrieved the paper file for this matter from the Chancery records department. The file revealed that the first time the Registry received a claim form in this matter was 6th February 2009. There was a shortfall of £400 on the accompanying fee. On the 10th February 2009 someone from the Issue Department phoned Cavershams Solicitors and informed them of the shortfall. This shortfall was then received on 17th February 2009, and it was on that date that they sealed and issued the claim.
6. The Court's current computer file contains less information, it merely states that the appropriate fee was received on 17th February 2009, and the claim issued on that date.
7. I was told that if the Registry receives a faulty claim (i.e. the claim form is incorrect, the particulars are incorrect, or the appropriate fee is not enclosed) then normally the entire application is returned to the potential claimant with a letter explaining the nature of the defect. In this instance — and Mr Lomax was not able to discern the reason why from the file — the Registry instead had elected simply to call Cavershams Solicitors to inform them of the problem.
8. Mr Lomax confirmed to me that the first date on which the claim was capable of being issued was the 17lh February 2009."
"56 It is, in a way, concerning that the fate of a claim should depend upon the miscalculation by such a relatively small amount of a court fee. I have considered whether it is so de minimis that the Court should not take it into account, or make some exception or allowance.
57 However, as I read Lewison LJs judgment in the Court of Appeal, the rationale of treating the receipt by the court of the required documents as sufficient and as transferring to the court the risk of loss or delay thereafter (see paragraph 31 of Lewison LJ's judgment) is that it is unfair to visit such risk on a claimant after he has done all that he reasonably could do to bring the matter before the court for its process to follow. Lewison LJ expressly described what had to be established by the Claimants: that the claim form was (a) delivered in due time to the court office, accompanied by (b) a request to issue and (c) the appropriate fee. In my judgment, the failure to offer the appropriate fee meant that the Claimants had not done all that was required of them; and they had left it too late to correct the error, which was a risk they unilaterally undertook."
"99 For the purposes of this application, it is common ground between the parties that the claim form was delivered in due time to the court office, accompanied by a request to issue. The only question which I have to determine on this application is whether the claim form and the request were accompanied by the "appropriate fee". In determining that question, bearing in mind what the Court of Appeal said in Page v Hewetts was the policy underpinning Barnes v St Helens Metropolitan Borough Council, and also bearing in mind what the Court of Appeal said in Aly v Aly, I have to consider whether, in this case, the claimants did all that was in their power to do to set the wheels of justice in motion according to the procedure that was laid down for the pursuit of the relief which they were seeking. And, as per Hildyard J in Page v Hewetts, I must also have in mind the underlying rationale, which is whether the claimants had done all that they reasonably could do to bring the matter before the court for its process to follow, in order for the claimants' risk to cease.
100 Earlier in this judgment, I found that the conduct of the claimants in the manner in which they paid the fees was an abuse of process. In these circumstances, looking at the underlying policy just mentioned, I consider that the claimants did not do all that was in their power to do to set the wheels of justice in motion. It was within the power of the claimants to conduct themselves in a manner which was not an abuse of process. They could have done so by paying at the outset the fees properly due for the claims which they always intended to make. Equally, looking at the underlying rationale just mentioned, I consider that the claimants did not do all that they could reasonably have done to bring the matter before the court for its process to follow. Again, the claimants could have acted in a manner which was not an abuse of process. So, at the outset they could have paid the fees properly due for the claims which they always intended to make. Furthermore, they, or more accurately their Solicitors, could have heeded the words of the district judges in Modhvadia and Partridge.
101 It is correct, as argued by Mr Evans in his oral submissions that the claimants paid the fees which were technically due. By this, I mean that, in the case of Mr Lewis and Others, the claim was limited to £15,000 and Robinson Murphy paid the fee shown in the CPFO as payable for this claim, ie £245. So, as a strictly technical matter, Robinson Murphy paid the fee technically due. However, in doing so, they engaged in conduct which, I have concluded, was an abuse of process. In my judgment, paying "the appropriate fee" does not cover the payment of a fee in circumstances where the act of payment was an abuse of process.
102 In reaching this conclusion and in addressing Mr Evans' oral arguments, I consider that I am supported by comparing the result reached by Hildyard J in Page v Hewetts with the result urged on me by Mr Evans on behalf of the claimant in this case. In Page, the limitation defence succeeded because the solicitors had innocently miscalculated the court fee by a relatively small amount. Hildyard J found that to be, in a way, concerning. In this case Mr Evans says that, notwithstanding the abuse of process, the claimants paid the technically correct fee. So, he says, the limitation defence must fail. To my mind it would be inconsistent and wrong if, in Page, the limitation defence succeeded due to an innocent miscalculation by the claimant, whereas in this case the limitation defence failed due to a deliberate abuse of process by the claimants. This comparison supports me in my conclusion that the claimants here failed to pay the appropriate fee.
103 In his skeleton argument on behalf of the claimants, Mr Evans relied upon an example of it being discovered at trial that the wrong issue fee had been paid in a trivial amount. Mr Evans said that it would be quite absurd if the claim would then fail on the grounds that the limitation period had expired because proceedings had still not been brought. So, he argued, the same should apply here. In my judgment, that example does not assist him as the failure to pay a trivial amount might be held to be de minimis. Furthermore, the court might not allow an amendment at the late stage of a trial to plead the limitation defence, particularly where it related to non-payment of a trivial amount.
104 Also in his skeleton argument, Mr Evans argued that the defendant's construction allowed no room for the case where the claim form and the correct fee has been paid on date X, rather than an earlier date, and the claim form has been issued on date X as well. Mr Evans argued that, on the defendant's construction, such a claim is never "brought". He said that the way round this absurdity is to recognise that it is plainly implicit in para 5.1 of the Practice Direction that the date of issue is the long-stop date on which the claim is "brought" for these purposes. I am not sure if there is actually anything between the parties on this particular point raised by Mr Evans. However, in so far as there is anything between the parties, I consider that I must base my decision on what the 1980 Act means rather than what the Practice Direction says: see Lewison LJ in Page at para 29. Accordingly, I cannot accept Mr Evans' argument based, as it is, on what is said in the Practice Direction, rather than being based on what is said in the 1980 Act.
105 In summary therefore, I conclude that, applying what was said in Aly v Aly , the eleven claimants did not do all that was in their power to do to set the wheels of justice in motion according to the process laid down. Nor, applying what Hildyard J said in Page, did the eleven claimants do all that they reasonably could do to bring the matter before the court for its process to follow. The claimants could have conducted themselves in a way which was not an abuse of process. They could also have heeded the words of the district judges in the cases I mentioned earlier. In Page, Hildyard J said of the claims in that case, that the claimants did not do all that was required of them in time; and they left it too late to correct the error, which was a risk they unilaterally undertook. In my judgment, in this case, these eleven claimants did the same in that they undertook the risk and that risk did not cease due to their conduct in acting in abuse of process. I therefore conclude that the appropriate fee was not paid in time.
106 It is common ground between counsel, and I agree, that if the appropriate fee was not paid in time the application for summary judgment in these eleven cases must succeed. I will therefore grant summary judgment in those cases."
"Now the word "application", as one sees it in the rules, has different shades of meaning, and there is no established technical meaning to the words "apply to the Court" which are the words which appear in Order 12, rule 8(1). So one has to interpret those words, as I see it, in a way that makes sense of the whole procedure that is being laid down, and it does not make sense to penalise a party who has done all that is in his power to do on the basis that a further act is required by the court which has not been done in time to allow the party to qualify for the relief for which he is asking. Consequently, one can only treat the words "apply to the Court" as meaning doing all that is in your power to do to set the wheels of justice in motion according to the procedure that is laid down for the pursuit of the relief which you are asking. That procedure in this case is by way of summons. All that the party could do, the defendant in this case, was to apply for it in the manner laid down by the court; that he did, and he therefore in my judgment applied to the court for the relief which he was asking within the period of 14 days from the notice of intention to defend the proceedings. I therefore have come to the conclusion that the learned judge did have jurisdiction to deal with that matter."
"What I have said however is confined to the situation contemplated by the Practice Direction, that is to say receipt by the court office of the claim form. This necessarily involves actual delivery by whatever means permitted by the Rules to the correct court office during the hours in which that office is open (paragraphs 2 and 3 of the Practice Direction-Court Offices supplementing CPR Pt 2). That is what happened in this case. Different considerations might apply if delivery was made to the wrong place or outside office hours. They will have to be considered if they arise."
A party who goes to the wrong place or who turns up outside office hours could hardly be said to have "done all that was in his power to do" and if that were the right test to apply then Tuckey LJ's uncertainty as to the potential consequences of such defaults would be inexplicable.
"34 These authorities appear to identify a clear principle by which the court is to determine whether a claim has been "brought" for the purposes of stopping the limitation from running, the principle being that a claim is only brought for those purposes when the party concerned has done all that is in his power or to set the wheels of justice in motion. If he has done that, then the risk of any failing on the part of the court is cast upon the court and the opposite party. Doing all that is in one's power often, and perhaps ordinarily, involves proffering the correct fee to the court office at the same time as presenting the claim form and the applicable particulars of claim. In Page and in Lewis, a failure to do that led to the failure of the claim. It is however possible in principle that a failing on the part of the court at that stage of the process might lead to the claim being brought for limitation purposes, even though the correct fee was not paid. If, for instance, the court assumed the burden of calculating the appropriate fee and made an error, for which the claimant was in no way to blame it might, in appropriate circumstances, be said that the claimant had done all that was in his power or, to adopt the words of Mr Male QC, all that he reasonably could do to bring the matter before the court in the appropriate way."
"46 In my view, the three first instance decisions to which I have referred, Page, Lewis and Bhatti, significantly extend the practical ambit of the Court of Appeal decisions upon which they are based. What the Court of Appeal cases were primarily concerned with was the question whether a party (in Aly v Aly a defendant, in the other two cases a claimant) could lose his rights to bring a claim or to make an application because of an error in the court office. It is unsurprising that the Court of Appeal repeatedly set its face against that proposition. In none of those cases did the Court of Appeal specify precisely what a party had to do in order to transfer the risk, as it is put, to the Court.
47 From those appellate cases has developed a somewhat hard edged principle as those cases have been applied at first instance whereby a claimant whose lawyers miscalculate the fee due, or absentmindedly pay the wrong amount, may cause a claimant to lose his or her right to bring an otherwise meritorious claim to court. At present it seems that the fact that the Defendant has suffered no prejudice and indeed may receive an unexpected benefit finds no place in the principle, and there appears to be no relief from sanction available from the court. It may be that as this principle is discussed and developed in future cases, those hard edges will be softened."
"44 This summary, to my mind, does not draw the necessary distinction between (a) the possible effect of the claimants' actions before the wheels of justice are set in motion by the issuing of the claim form and (b) the actual effect when the wheels of justice are set in motion by the issuing of the claim form (even if an inadequate fee has been paid). The authorities to which the learned judge was referred in Bhatti v Ashgar (which included additionally the decision of the Court of Appeal in Barnes v St Helens MBC  EWCA Civ 1372;  1 WLR 879) seem to me to provide no support for the proposition that, at least in the absence of abusive conduct, a claim is not "brought" for the purposes of the Limitation Act 1980 if the appropriate fee for issue is not paid when the court issues proceedings.
45 In rather different circumstances, the authorities to which I have referred were cited to Mr ter Haar QC, sitting as a deputy judge of the Queen's Bench Division in Glenluce Fishing Company Ltd v Watermota Ltd  EWHC 1807 (TCC) on a claimant's application to amend to increase the value of its claim outside the limitation period. With suitable restraint and courtesy he made clear his concern at the significant extension of principle and the apparent introduction of a new "hard-edged" principle in the first instance decisions culminating with Bhatti. I respectfully agree with his concerns.
46 In a case where (a) abusive conduct is not present and (b) the court sets the wheels of justice in motion by issuing proceedings but (c) the claimant has not paid and the court has not required the correct fee, I reject the submission that an action is not brought for the purposes of the Limitation Act 1980 at the moment of issue. There is no support for the submission either in statute or in authority other than in Bhatti. For the reasons set out above I am not able to follow the path taken by Bhatti."
"52 These authorities leave open two possibilities for what should be regarded as "the appropriate fee" for the purposes of the principle laid down by the Court of Appeal in Page v Hewetts when applied to a case where the court has issued proceedings on payment of a fee which is subsequently said to have been inadequate and therefore inappropriate. The more favourable to claimants would be to hold that the fee proffered, even if it could be shown to be less than that required by the relevant order, was appropriate because it has proved to be all that the claimant was required to do to set the wheels of justice in motion. The advantage of this approach would be to discourage satellite litigation such as the present, which could (as Page shows) involve not merely enquiry into the actions of the claimant but also into the actions of the court, including investigation into why the court had issued proceedings as and when it did. It could also be said to meet the justice of the case as articulated by the Court of Appeal: see  above. The more rigorous approach is to say that the "appropriate fee" in this context is the fee dictated by the terms of the relevant order. In principle this seems to me to be preferable, because there is no obvious reason why a claimant should be said to have "brought" a claim for the purposes of the Limitation Act 1980 or any other act when it has failed to proffer the fee to which the court is entitled and which the court should normally have demanded as the price for issuing proceedings. Where the proffered fee is less than required by the relevant order, the fact that the court has subsequently issued proceedings should be seen as good fortune for the claimant rather than as validating the proffered fee: it does not prevent the court from requiring payment of the shortfall either on issue or later…
55 For these reasons, I hold that "the appropriate fee" for the purposes of the principle enunciated by the Court of Appeal in Page v Hewetts is the fee required by the relevant order which is to be determined by reference to the claim or claims articulated in the claim form (and, if issued simultaneously, the particulars of claim). In the absence of abusive behaviour, it is not to be determined by reference to claims which are articulated later, whether or not the later claims are ones which the claimant hoped or even intended to bring later at the time of issuing proceedings.
56 Where a party engages in abusive behaviour a range of responses are open to the court, up to and including striking out a case altogether. Since there is no allegation that the claimants' conduct in this case has been abusive it is neither necessary nor desirable to attempt to define or calibrate what the likely response of the court would be if it decided that a claimant had been guilty of abusive conduct in relation to the under-payment of fees where proceedings had been issued. It is worth noting, however, that even where a claimant's failure to pay the correct fee on issue is not abusive conduct, a range of options would be available to the court. If identified before issue, the court may simply refuse to issue the proceedings until the proper fee is paid. If proceedings are issued, the court could direct the payment of the missing fee either at the time of issue or later. Non-compliance with that order could result in the proceedings being stayed or in a succession of peremptory orders of increasing severity that could, at least in theory, lead to a claim being struck out for non-compliance. The existence and potency of these procedural responses demonstrates that the nuclear option (i.e. holding that all proceedings that are issued without the correct fee being paid are ineffective to stop time running) is unnecessary as well as being unwarranted."
"2 The summary answer to the dispute, in a case where it is not alleged that a claimant's failure to proffer the correct fee is abusive procedural conduct, may be split into two periods:
i) In the period between (a) when the claimant submits the claim form and proffers the inadequate fee and (b) when the court issues proceedings, the failure to proffer the correct fee will prevent the conclusion that the action has been "brought" for the purposes of the Limitation Act 1980 before the moment that the court issues the proceedings; but
ii) Once the court issues the proceedings, the mere fact that the fee proffered by the claimant and accepted by the court (a) is less than should have been proffered and accepted for the claim identified in the claim form or (b) becomes so because of a subsequent increase in the quantum of the claim advanced in the proceedings does not prevent the action from being "brought" for the purposes of the Limitation Act 1980 when it is issued by the court."
The second is at paragraph 47:
"47 Where a claimant wishes to establish that time stopped running before the date on which the court issued proceedings, the principle established by Page v Hewetts applies: time will only stop running once the claim form is delivered to the court office, accompanied by a request to issue and the appropriate fee. The Court of Appeal did not define what it meant by "the appropriate fee". It concentrated on the injustice of risk being left with the claimant where the claimant "had done all that was required of him" or had done "all that was in [his] power to set the wheels of justice in motion": see  and ; and upon the injustice to the litigant in being "responsible for any shortcomings of the court" or responsible where "the court is itself responsible for delay in issuing or loss of the originating process": see  and . And, at  Lewison LJ said that: "It does not seem to me that the reason why the court fails to process the request in time alters the justice of the case.""
"...paying the appropriate fee" (as discussed by the Court of Appeal in Page v Hewetts) "does not cover the payment of a fee in circumstances where the act of payment was an abuse of process". On the facts with which Mr Male QC was dealing, I respectfully agree. However, he did not say or imply that a non-abusive under-payment of a fee means that the issuing of the claim form by the court is ineffective to stop time running. I do not consider that, properly understood, Lewis v Ward Hadaway provides any support for the defendants on the present application in relation to the period after proceedings had been issued."
Note 1 For ease of reference I will refer to this case as Page No.1 to distinguish it from the later decision of Hildyard J in the same litigation which I will refer to as Page No.2. [Back]
Note 1 For ease of reference I will refer to this case as Page No.1 to distinguish it from the later decision of Hildyard J in the same litigation which I will refer to as Page No.2. [Back]