http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Ch/2015/3503.html&query=court+and+fees+and+abuse&method=boolean

The claimants wished to issue proceedings in order to avoid a time bar defence. However, they were not yet sure whether the claims would be pursued. Accordingly, the claimants' solicitors deliberately mis-stated/under-stated the value of the claims in order to pay lower court fees for the issue of a claim form. If and when it was subsequently decided to continue a particular claim, the value of that claim would then be amended and the balance of the appropriate larger fee paid. The claimants' solicitors had pursued this strategy for many cases and had been criticised for it by two district judges in earlier decisions (where the claim was also struck out as an abuse of process).

In this case, Male QC (sitting as a Deputy Judge), held that this strategy was an abuse of process. The solicitors had deprived the court system of fees which should have been paid at the outset, thus resulting in a disruption to cash flow and the administrative need to deal with two sets of fees. They could also have gained an advantage over the defendant by stopping time running where the claimants might not have been able to pay the full fee at the outset.

The judge did recognise, though, that in some cases it may be possible to pursue this strategy without there being an abuse of process eg where a financially strapped claimant is aware that he will be receiving funds shortly and informs the defendant and seeks his agreement to paying reduced fees at the outset (whilst also informing the court).

Despite finding that there had been an abuse of process, though, the judge refused to strike out the claims. The claims were all arguable and the prejudice to the defendants had been limited. However, he did grant the defendants summary judgment on the basis that the claims were time-barred. That was because the claims had not been "brought" in time for the purpose of the Limitation Act 1980. Citing the decision in Page v Hewetts (see Weekly Update 34/13), he found that the claimants had not done "all that was in their power to do to set the wheels of justice in motion". That was because paying the "appropriate fee" does not cover the payment of a fee in circumstances where the act of payment was an abuse of process.

COMMENT: The contrast between this case and Page v Hewetts is interesting. In Page, the solicitors had innocently miscalculated the court fee when the claim form was delivered to the court office and it was found that the claim had accordingly not been "brought", for limitation purposes, at that stage. Here, there was no miscalculation of the fee, and the fee paid was correct for the stated value of the claim. Nevertheless, the judge clearly felt that it would be inconsistent if the limitation defence succeeded in Page but was allowed to fail here, where there had been a deliberate abuse of process by the claimants. For that reason, he found that the claimants had, in reality, failed to pay the "appropriate fee".