Higginson Securities (Developments) Ltd v Hodson [2012] EWHC (1052) TCC

This was a small value case, being a claim for less than £70k partly for professional negligence and partly for repayment of overpaid fees. A Letter of Claim was sent under the Pre-Action Protocol in March 2011. There were then delays and in December 2011 Hodson’s solicitors sent a Response which vigorously denied the claim and called for the claim to be withdrawn. No meeting was suggested by or on behalf of either party. Proceedings were then issued in February 2012. The response of Hodson’s solicitors was to say that the Protocol had “not been exhausted: the next step is a without prejudice meeting (or meetings) of the parties” and that if proceedings were served, they intended to apply to stay the proceedings. This is what happened. The position of Higginson was that it was clear from the blanket denial of any liability that Hodson had abandoned the protocol and as such there was no merit in holding a without prejudice meeting. Higginson further suggested that a mediation would most likely succeed if the parties had full knowledge of one another’s case and evidence and suggested that the best time for without prejudice negotiation would be after witness statements and expert reports had been exchanged; however Higginson also said on more than one occasion that it was willing to meet before if Hodson so wished.

Hodson duly issued its application to stay the proceedings “to enable the parties to comply with the Pre-Action Protocol which came before Mr Justice Akenhead. Hodson’s position was that there was a clear non-compliance with the Protocol, that the issue of the proceedings before a without prejudice Protocol meeting was unjustifi ed. Higginson argued that the Protocol meeting was not an absolute requirement and that in any event it was incumbent on both parties to bring one about. Mr Justice Akenhead was clear that the Protocol was not to:  

“be used as a weapon or tactic. Both parties must seek to co-operate during its implementation. In relation to low value claims, such as this one, it is important that the parties proceed reasonably expeditiously, do not drag the process out and keep the costs of the exercise to a reasonable minimum..”

The Judge also noted that the wording of the Protocol does not state that a meeting is absolutely mandatory; it does however say that “normally” a meeting should take place. The “default option” is that a meeting should take place unless there is a reasonably good reason for such a meeting not to take place and it must be incumbent on both parties to seek to set up a meeting. The Judge was not surprised that Higginson took the view that a meeting was unlikely to produce anything, given the absolute and uncompromising rejection of the claim by Hodson in the Protocol response. However, it was still open to Hodson to suggest a meeting, it did not. The Judge further noted that once Higginson had started proceedings, it sought to adopt a sensible and pragmatic approach. This was rejected. Here, the pragmatic response for Hodson would have been to seek to reserve the costs of and occasioned by any purported non-compliance with the Protocol, then secure a without prejudice meeting and, pending that, secure an extension of time for service of the Defence. If there had been changes in the claim between the Letter of Claim and the Particulars of Claim then these could have been discussed. The Judge dismissed the application and ordered that Hodson serve a Defence within 14 days and that there then be a short stay of 4 weeks for either a without prejudice meeting or mediation.