Atha & Co Solicitors v Liddle, Court of Appeal - Queen's Bench Division, July 09, 2018, [2018] EWHC 1751 (QB)

Resolution Date:July 09, 2018
Issuing Organization:Queen's Bench Division
Actores:Atha & Co Solicitors v Liddle
 
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Case No: C74YJ759

Neutral Citation Number: [2018] EWHC 1751 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ON APPEAL FROM THE MIDDLESBROUGH COUNTY COURT

ORDER OF HHJ MARK GARGAN

DATED 13 DECEMBER 2017

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 09/07/2018

Before :

MR JUSTICE TURNER

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Between :

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Daniel Shapiro (instructed by Womble Bond Dickinson LLP) for the Appellant/Defendant

Howard Elgot (instructed by Sintons Solicitors) for the Respondent/Claimant

Hearing dates: 25th June 2018

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JudgmentMr Justice Turner :

INTRODUCTION

  1. Nearly a decade ago, the claimant fell off her chair at work. She claimed compensation from her employers alleging that they were to blame. She retained the defendant solicitors to act on her behalf. The employers denied liability saying that there was nothing wrong with the chair. Proceedings were commenced. An expert, Mr Garry, was jointly instructed to give his opinion on whether or not the chair was defective. He wrote a report concluding that there was nothing wrong with the chair and that the accident had probably occurred simply because the claimant had leant over too far and caused it to topple over. The defendant solicitors discontinued proceedings. Thus the trial on liability, which had been listed to be heard on 6 April 2010, never took place.

  2. The claimant was not happy with how her solicitors had dealt with her case. She went to see other solicitors and told them that she had not agreed to the discontinuance of proceedings and contended that, as a result of her previous solicitors' breach of duty, she had lost a potentially valuable claim against her employers.

  3. Eventually, proceedings were brought against the defendant solicitors in professional negligence. The claim form was not, however, issued until after the expiration of the six year limitation period. The defendant applied to strike out the claim and/or for summary judgment on the ground that the claim was statute barred.

  4. The application came before His Honour Judge Mark Gargan on 17 December 2017 and was unsuccessful. The defendant now appeals that decision to this Court.

    THE CLAIM FORM

  5. The defendant sent formal notice of discontinuance of the claimant's personal injury claim on 31 March 2010. Accordingly, the six year limitation period in respect of the professional negligence claim expired on 31 March 2016. The claim form relating to this claim was received by the Court on 29 March 2016 but not issued until 7 April 2016. If the claim is taken to have been brought on the earlier date then it is in time. If it was brought on the later date, it is not and the defendant has a complete defence.

  6. The defendant concedes that, for the purposes of limitation and subject to the satisfaction of various pre-conditions, a claim is taken to have been brought when the claim form is received by the Court. However, in this case it alleges that the claimants' solicitor, Ms Jenkins, paid the incorrect issue fee upon presentation of the claim form. It contends that this amounted to an abuse of process the automatic consequence of which is that the claim was not brought until the claim form was issued and it is thus out of time.

  7. CPR 16.2 (1) provides that where the claimant is making a claim for money the claim form must contain a statement of value in accordance with rule 16.3.

  8. CPR 16.3 provides in so far as is material:

    ``Statement of value to be included in the claim form

    16.3

    (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.''

  9. The statement of value on the claim form in this case indicated that the claimant expected ``to receive more than £10,000 but not more than £25,000.'' The correct court fee for a claim of this value was £1,250 which is what was paid.

  10. Ms Jenkins wrote to the defendant on 6 May 2010 stating that proceedings had been issued although they had not yet been served. In her letter she dealt with the issue of quantum in the following way:

    ``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.''

  11. The claim form was eventually served on the defendant on 3 August 2016. The defendant immediately suspected that Ms Jenkins had deliberately misstated the value of the claim to avoid paying a much higher court fee. It made a formal offer to settle the claim in the sum of £25,000 plus costs. When this offer was refused, despite the fact that it represented the maximum value which had been placed on the claim in the claim form, the defendants concluded that their suspicions had been confirmed. They asserted that the conduct of Ms Jenkins amounted to an abuse of the process of the court the consequence of which was that the claim had not been brought on the date upon which the tainted claim form had been received by the court. Her actions, they contended, had the effect of postponing the date upon which the claim had been brought to the date of the issue of the claim form and the claimant thereby fell foul of the limitation period.

  12. In response to the defendant's application to strike out the claim and/or for summary judgment, Ms Jenkins sought to justify her valuation in a witness statement dated 18 May 2017. It cannot be said that her explanation was a model of clarity.

  13. In essence, she stated that at the time of drafting the claim form the claim value was unknown. However, if that were indeed the case then the claim would have fallen within CPR 6.3 (2) (c) as one in respect which ``the claimant cannot say how much is likely to be recovered.'' The appropriate fee for such a claim is £10,000. Ms Jenkins sought to suggest that she would have been worried that the court might not have issued the claim form where the value could not be predicted and that she might have difficulty in recovering the higher fee in costs from the defendant if the claim were subsequently to turn out to be worth less than £25,000.

  14. I can readily accept that the quantification of the value of the claim was difficult but it is clear that Ms Jenkins had not come to a genuine and concluded view at the time of drafting the claim form that it was worth less than £25,000. Not only did she refuse the defendant's Part 36 offer but she also served a costs budget estimating the claimant's costs to trial in the sum of £192,369.40 which is hardly proportionate expenditure on a case worth no more than £25,000. The Particulars of Claim pleaded that the claimant ``remains wheelchair bound, her diagnosis of CRPS continues. The quantum claim is likely to be substantial.'' Even taking into account that a professional negligence claim of this kind is for the loss of a chance and not for the full value of the antecedent personal injury claim, it would be wholly unrealistic to conclude that the predicted value of the claim could have been less than £25,000.

  15. I do not find, and the defendant does not allege, that Ms Jenkins was acting dishonestly when she purported to value the claim at between £10,000 and £25,000 and signed a statement of truth to this effect. At the very least, however, she had seriously misjudged the proper limits of the strategic leeway afforded to her by the rules. She had convinced herself that the tactical considerations referred to in her witness statement justified her choice of the statement of value. However, a statement of value is either a genuine reflection of the assessment of the author or it is not. A false valuation cannot be made true by the uncomfortable consequences of accuracy.

    ABUSE OF PROCESS

  16. His Honour Judge Gargan concluded from all the materials before him that the statement of value did not amount to an abuse of process. He found that Ms Jenkins could and should have declared on the claim form that she was unable to say how much was likely to be recovered but, notwithstanding that, she believed that she was using the court process appropriately.

  17. I do not agree with the conclusion of the court below. On any analysis, Ms Jenkins' motives, however well intentioned, could never justify the deliberate misstatement of the value of the claim on the form. In Attorney-General v Barker [2000] 1 F.L.R. 759, Lord Bingham characterised an abuse of process as ``a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process.''

  18. The ordinary and proper use of the court process when providing the statement of value on a claim form involves the recording of the unvarnished truth. Deliberately departing from this ordinary and proper use for tactical reasons, such as removing the risk that the issue fee may subsequently be challenged when costs are being assessed, is significantly different from the ordinary and proper use of the court process.

  19. That said, I am entirely satisfied that, but for the implications arising out of the context of the operation of the limitation period in this case, the abuse would not have been such as to justify striking out the claim. The usual position is accurately summarised in the notes in The White Book 2018 at paragraph 3.4.3:

    ``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...

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