WISEMAN -V- MARSTON: THE UNDERPAYMENT OF COURT FEES: DEFENDANT’S APPLICATION FOR PERMISSION TO APPEAL REFUSED

In December last year I reported on the decision in Wiseman -v- Marston’s PLC (Sheffield County Court 21st December 2016). His Honour Judge Robinson allowed the claimant’s appeal in a case relating to payment of court fees. The defendant applied for permission to appeal that decision.   I have been asked several times about whether the appeal is proceeding. Permission to appeal has been refused by Lord Justice Jackson.

(A copy of the judgment of HH Judge Robinson is here.wiseman judgment

The Order refusing permission to appeal is here.wiseman order000)

THE ORDER REFUSING THE DEFENDANT PERMISSION

“1. The error made by the claimant’s solicitor was not an abuse of process. It was quite unlike that in Lewis -v- Ward Hadaway, where there was deliberate conduct designed to avoid paying the correct fee.

2. The claimant applied promptly to amend and tendered the correct fee. Whilst the court nowadays quite properly adopts a more restrictive approach towards allowing amendments, it was obviously appropriate to grant this particular application, for the reasons given by HHJ Robinson.

3. This appeal has no real prospect of success. Further, it does not satisfy the second appeals test. The proposed appeal does not raise any important point of principle or practice. There is no other “compelling reason” why the Court of Appeal should devote time and resources to dealing with it.”

A REMINDER OF THE ORIGINAL JUDGMENT

The original post was based on my own notes of the judgment  where I represented the claimant. The full transcript is now available as an attachment on the link above or here wiseman judgment

KEY POINTS

• A failure by a solicitor to put the correct value on the claim and pay the correct fee was not an abuse of process.
• The court should allow the claimant’s application to amend the statement of value.
• The defendant’s applications for summary judgment and to strike out the claim as an abuse of process were dismissed.

THE CASE

The claimant brought an action for damages following an accident she suffered on the 15th January 2013.

• The claimant’s solicitor sent the papers to counsel  for an advice on quantum before issue but was informed that there was going to be a delay in return of the papers.
• Because the limitation period was imminent a claim form was issued which limited the claim to £50,000, a court fee of £2,500 was paid.
• When the papers were returned from counsel, with a schedule, it was clear that the claim had a value greatly in excess of £200,000.
• The claimant promptly served the Particulars and Schedule of Damages and made an application to amend the statement of value to more than £200,000.
• The defendant made two applications – for summary judgment or that the claim be struck out as an abuse of process. Both of these applications being based on the failure to pay the correct fee.

THE APPLICATION BEFORE THE DISTRICT JUDGE

The application before the District Judge was heard in April 2016.  She held that the claimant’s solicitors failure to properly quantify the claim prior to issue was an abuse of process. (The claimant’s solicitor had candidly admitted that, if he had considered the issue with sufficient case, it would have been clear that the claim had a higher value than £50,000).

The District Judge

• Refused the claimant’s application to amend the statement of value.
• Stated that she need not make any order on the Defendant’s applications.
• Ordered the claimant to pay the defendant’s costs of the applications.

THE APPEAL TO THE CIRCUIT JUDGE

Both sides appealed the order of the District Judge. The claimant argued that she should have been given permission to amend; the defendant that its applications should have been allowed, or at least some order made on its applications.

THE DECISION OF THE CIRCUIT JUDGE: THE CLAIMANT’S APPEAL

The Circuit Judge allowed the claimant’s appeal.  The key question in the case was whether the claimant’s actions were an “abuse of process”. The question of what was an abuse of process was not a matter of judicial discretion.

THIS WAS NOT AN ABUSE OF PROCESS

The Circuit Judge stated that there was a world of difference between a solicitor who “played the system” and deliberately issued proceedings paying a low court fee with the intention of amending if the case looked as if it it had good prospects and the current case.  In the current case a competent solicitor knew he had to issue to avoid limitation problems.  That solicitor did not fully engage his mind to the true value of the case. However he did conclude that the value was substantial and paid a court fee of £2,500.

Once counsel’s advice was received the solicitor immediately took steps to remedy the situation. Proceedings were served promptly (and properly) and a prompt application made to amend the statement of value (the increased fee had been paid and kept by the court).

The judge commented:

“I cannot think of anything further away from abuse of process than that”. 

ABUSE OF PROCESS COULD BE RECTIFIED

The judge also commented that even if he had held that the actions were an abuse of process (which they were not) the actions afterwards would have ended the abuse. The prompt service of proceedings and prompt application amended the abuse.

The judge also rejected the defendant’s argument that serving a claim form limited to £50,000 with Particulars and a Schedule showing a figure much higher than that was an abuse.  The claimant was not to be penalised for serving promptly and letting the defendant know the case it had to meet.  The claimant could have amended, prior to service, without permission and the onus would be on the defendant to set that aside.

AMENDMENT SHOULD HAVE BEEN ALLOWED

The judge held that the District Judge had erred in not considering, and applying, the traditional approach to amendment.

• The application to amend had been made promptly.
• The injustice to the claimant in refusing the application to amend was immense.
• There was no prejudice to the defendant, other than having to pay an additional £7,500 in court fees (and appropriate damages).

THE DEFENDANT’S APPEAL

The Circuit Judge held that the District Judge should have made some order on the Defendant’s applications.  He dismissed them both.  (The defendant was ordered to pay most of the costs before the District Judge and the costs of the appeal).