Lewis v Ward Hadaway [21.12.15]

High Court holds that there had been an abuse of process where Claimants deliberately underestimated their claims to avoid or defer payment of the full issue fee; claims not issued by the court before the limitation period had expired were struck out.

Implications

With after-the-event insurance premiums no longer recoverable from defendants, claimants may not have a readily available source of funding for issue fees. These can be significant, for example £10,000 for a £200,000 claim.

We have seen claims where, at the time of issue, the value of the claim has been limited so that it initially falls in the fast track. This does not assist defendants with their reserves. In addition, it can prevent them from relying on their own medical evidence. The true value of the claim is later revealed following service of a more substantial updated schedule of loss and medical evidence. Any submission that the defendant should then be allowed to obtain its own medical evidence may fall on deaf ears as it could be argued that doing so would affect the trial timetable.

A key point to consider is the intent behind the claimant’s actions. If there was a genuine belief that a claim was presented at the correct value at the time of issue, a court is unlikely to consider this an abuse of process. The Judge made reference to there being a spectrum of cases. He gave an example of a financially strapped claimant who knew he would soon receive a substantial legacy, who informed the defendant and the court of his financial position and of the imminent legacy and sought the defendant’s agreement to paying the lesser fee. In this sort of case there may be no abuse of process.

Defendants should be cautious of requests for interim payments where these are made only to meet court fees.

It should be noted that there was no discretion in this case to extend the limitation period under s.33 Limitation Act 1980, which could have impacted on the claims which were issued after the limitation period had expired.

Background

The 31 claims were for damages for alleged negligence by the Defendant firm of solicitors relating to property purchases. In each case the letters of claim claimed substantial sums, running into hundreds of thousands of pounds.

The issue fees paid on the Claimants’ behalf reflected very much lower value claims. The fees paid ranged between £25 (appropriate for claims limited to £300 or less), £140 (£15,000 or less) and, in just one case, £1,475 (£300,000 or less). In every case, the claim form was amended before service to claim a larger sum and the balance of the fee was paid.

In 11 cases the claim form was delivered to the court before the limitation period had expired, but was not issued by the court until after this period had expired. In the remaining cases the claim forms were issued by the court before limitation had expired.

Decision

Mr John Male QC held as follows:

  • There had been an abuse of process by the Claimants. The claims were issued as a protective step due to the imminent expiry of the limitation period. The Claimants deliberately underestimated the value of their claims in order either to avoid, or defer, payment of the full and correct fees. The consequence to the court system was a reduction in, and a disruption to, cash flow and the administrative need to process two sets of claim fees and claim forms.
  • It would be disproportionate to strike out the claims, taking account of all factors and the overriding objective.
  • However, the 11 cases issued after expiry of the limitation period should be struck out on the basis that they were not accompanied by the “appropriate fee” and so were not properly brought in time.