UNDERPAYMENT OF COURT FEES AND STRIKING OUT: CLAIMANT SUCCESSFUL ON APPEAL:

Exactly a year ago today His Honour Judge Robinson gave judgment in a case relating to under-payment  the Court fees , see Wiseman -v- Martson.  Judge Robinson gave judgment this morning in a case that covered similar ground. He allowed an appeal where the District Judge had struck out the claim for under-payment of court fees.

THE CASE

Cross-v- Black Bull (Doncaster) Limited* (Sheffield County Court 21st December 2017)

The claimant brought an action for damages for personal injury. Shortly before issue the claimant’s solicitors wrote a detailed letter to the defendant.  This included the comment that the claim was currently valued at £10,000, however the claimant reserved the right to amend the value if further information came to light.

Proceedings were issued with the claim limited to £10,000.

The schedule of loss (dated three months after issue) claimed a total of £41,6780

THE DEFENDANT’S APPLICATION

The defendant issued an application for an order that the action be struck out as an abuse of process in “seeking improperly to avoid payment of the court fee”.

The claimant’s direction questionnaire, completed after the application, included a draft direction that the claim be amended to plead the value as £60,000 and the claimant pay the additional fee.

THE APPLICATION BEFORE THE DISTRICT JUDGE

The deputy District Judge struck out the appeal finding that proceedings had been issued at a lower rate deliberately to avoid paying the higher court fee.

THE CLAIMANT’S SUCCESSFUL APPEAL

The Circuit Judge allowed the claimant’s appeal.

The judge read the claimant’s pre-action letter in detail. He found that the letter before action was a sensible course of action.  The judge held that the DDJ had erred in inferring that the claimant’s solicitor had deliberately abused the process was not a proper inference to draw on the facts.

Further, even if there had been any element of abusive behaviour, “strike out was simply a far too draconian response”.  On any view the claimant should not be deprived from pursuing the claim for £10,000. “Strike out as a response was so disproportionate that it can properly be said to fall outside the range of reasonable responses open to a Judge, even on the facts as found by the Judge. I would have set aside the strike out order in any event.”

The appeal was allowed.

INDEMNITY COSTS

The claimant had made a Part 36 offer to settle the appeal with the striking out order being set aside and the order for costs be replaced by an order for costs in the case.  The claimant obtained an order for the costs of the hearing before the District Judge to be paid in any event.  The judge held that the claimant had made an effective Part 36 offer and had obtained a more advantageous result on appeal. The defendant was ordered to pay the costs incurred 21 days after the Part 36 offer on an indemnity basis.

• This note is based on the written judgment. I am hoping to receive this in electronic form shortly.  I appeared for the claimant at the appeal instructed by Atherton Godfrey, solicitors, Doncaster.