Dixon v Radley House Partnership (A Firm) [2016] EWHC 2511 (TCC)

The claimant (D) brought negligence proceedings against the defendant (R) a firm of architects, for refurbishment works.

In the draft claim form, D had referred to a loss of £35,894.00 allegedly caused by negligent misrepresentation on the part of R, who had been instructed on 27 October 2007.

The draft claim form and the fee were prepared up to a value of £50,000.00 and were received by the court on 25 October 2013, less than six years after the cause of action arose.

The proceedings were issued on 07 November 2013, after the expiry of the limitation period under the 1980 Act. When the documents were served in February 2014 it was claimed that remedial works had also been carried out in the sum of £431,305.00.

R applied to the court to amend their defence to include the defence of limitation.

The court considered three points.

1. The court’s discretion under the overriding objective, when considering an application to amend a statement of case.

i) The court would wish a real dispute between the parties to be adjudicated, provided that a substantial prejudice to the other party caused by the amendment could be compensated for in costs, and that there was no significant harm to public interest or the administration of justice.

ii) If R’s amendments could be said to have a real prospect of success, there would need to be substantial extraneous factors to prevent the issues they raised from being dealt with at trial.

2. The lack of statutory provision to the effect that issued proceedings were invalid or ineffective if the court issued them in the normal way, even if it accepted a fee which either was or became less than the proper fee for the claim.

i) Unless a claim was not included in or comprehended by the proceedings as issued, time stopped running once the claim form arrived at the court office with a request to issue and the appropriate fee.

ii) The fact that a claimant intended to bring a claim which could not be articulated or quantified at the time of issuing proceedings should not require payment of the fee that would have been payable if that claim had been articulated or quantified. An action had nevertheless been brought for the purposes of the act.

iii) In the absence of abusive behaviour, it was not to be determined by reference to claims which were articulated later, whether or not such later claims were ones which R intended to bring later at the time of issuing proceedings.

3. The proposed amendments did not distinguish between the period of 25 October 2013 when the documents were sent to the court and 7 November 2013 when they were issued, on the one hand, and 7 November 2013 onwards on the other.

i) The failure to differentiate was wrong in law.

ii) There was nothing to justify the conclusion that the failure to pay the correct fee when the proceedings were issued prevented the action from being brought on that day for the purposes of the act.

iii) D had paid the correct fee on 25 October 2013, therefore the amendment as drafted had no real prospect of success.

Application Disallowed.

Wall v Royal Bank of Scotland Plc [2016] EWHC 2460 (Comm)

The claimant (W) brought claims totalling approximately £700 million against the defendant bank (RBS). The claims arose from RBS’ dealings with a property group in insolvent litigation. W owned and controlled the parent company of the group and therefore claimed to be the assignee of its rights against RBS.

RBS sought to apply for an order for security for costs against any third party funder identified by the claimant on the basis that such a person had agreed to contribute towards W’s costs in return for a share of whatever he might recover in the proceedings.

W asserted that his potential liability for costs was covered by an ATE policy, therefore there would be no question of such an order and the information that RBS required was not required.

W submitted that an order to require him to produce this information was in breach of ECHR art 8.

Three points were considered in determining the outcome of the application:

1. There was an inherent power in r.25.14 to order W to identify his third party funder.

2. The CPR had to be given effect to in a way that was compatible with the fundamental rights and freedoms provided by the ECHR. W had embarked on a very high-value and public litigation that provided for disclosure of third party funder details, this took the identity of the funder outside the realm of W’s private life.

3. The size of the litigation and the lack of evidence as to W’s ability to fund it himself brought about an assumption that a third party must be funding the claim. The case therefore fell within the r25.14.

Application granted.