MAKING A MISTAKE ON THE DAMAGES CLAIM PORTAL IS NOT NECESSARILY AN ABUSE OF PROCESS: AN APPLICATION THAT PROVED COSTLY FOR THE DEFENDANT
I am grateful to Express Solicitors for sending me a report of a decision in Oxford County Court relating to the Damages Claim Portal. The claimant had used the Portal to issue against the Crown. The Portal cannot be used to issue against the Crown. The defendant took that point and argued that the action was an abuse of process and should be struck out. The defendant’s application failed and it ended up with a costs order against it.
“Alexander Langston (Solicitor) and Michael Elders (Advocate) have had a recent success in Oxford County Court in successfully opposing a defendant’s application for strike out and walking away with a costs order in our favour.
Our client had been injured in the course of their employment. After following the relevant Pre-Action Protocol, we issued the Claim Form using the new Damages Claims Portal (DCP) pilot scheme as set out in Practice Direction 51ZB. A very recent change to those rules meant that cases against The Crown (which included the Defendant in this case) could not be issued on the DCP. The Defendant took this point immediately and refused to file an Acknowledgement of Service. In default of filing an Acknowledgment of Service, Judgment was entered for the Claimant. Importantly, we had served the Claim Form in a CPR-compliant fashion via post, (i.e. not using the DCP) such that the defendant received all the documents they would have under the standard Part 7 procedure.
The Defendant then applied for: Default Judgment to be set aside pursuant to CPR 3.3 (sic); the Court to declare that it did not have jurisdiction to try the claim under CPR 11; the Claimant’s claim to be struck out for abuse of process; and QOCS to be disapplied such that the Claimant would immediately have to pay the Defendant’s costs out of his own pocket.
Within one week of the Application being made, Alexander Langston proposed the pragmatic suggestion that Default Judgment could be set aside, and the Claimant’s claim be allowed to continue as if it had been issued in accordance with the usual Part 7 procedure. The Defendant refused to accept this suggestion and continued with their attempt to strike out the Claim. Prior to the hearing, Michael Elders submitted a detailed skeleton argument setting out that the defendant could not challenge jurisdiction without having filed an Acknowledgment of Service, that incorrect use of the DCP was not an abuse of process, and that, in any event, strike out was a disproportionate sanction compared to the minimal impact on the Defendant and the Court.
At the hearing, the Court was taken to Lord Bingham’s definition of “abuse of Process” in Attorney General v Barker  1 FLR 759 that the use of the court process must be in a way “significantly different from the ordinary and proper use of the court process”. Mr Elders submitted that using the DCP to issue the Claim was a “misuse” of process, but not an “abuse” of process, however even if it was an “abuse”, it should not lead to strike out due to the impact being so minimal. Further, the case of Hannigan v Hannigan  2 F.C.R. 650;  W.T.L.R. 597, where an error of procedure was made following the implementation of the new Civil Procedure Rules, provided authority to allow the Claim to continue. There the Court of Appeal held that it was wrong for the lower Courts to strike out the Claim given that the procedural error could be rectified under CPR 3.10. Finally, the claimant relied upon Cable v Liverpool Victoria Insurance Co Ltd  EWCA Civ 1015;  4 W.L.R. 110 where, despite the Claimant’s failure to comply with the PreAction Protocol amounting to an abuse of process, the Court of Appeal still reversed the decision to strike out the Claim as it was disproportionate.
In his Judgment, Deputy District Judge Stonham noted that, even if he granted the Defendant relief from sanctions for their failure to file an Acknowledgment of Service, he would not declare that the Court did not have, or should not exercise, jurisdiction pursuant to CPR 11. The Judge held that it was a misuse of process, which did not amount to an abuse of process, to issue the Claim Form using the DCP, however even if it did amount to an abuse of process, it was not prejudicial to issue the Claim Form online and it does not serve the parties or the Court to strike out the Claim Form. In his order, the Judge made provision, under CPR 3.10, for the Claim to continue as if it had been issued under Part 7.
The Defendant sought to recover their costs of the entire claim so far, however the Judge held, as Mr Elders had submitted, that attendance at the hearing could have been avoided. The Defendant was in no better position than if they had consented to Mr Langston’s pragmatic suggestion which was made only one week after the application. In a step that falls in line with the heavy criticism in Denton of parties taking opportunistic stances, the defendant was ordered to pay the claimant’s fixed costs of the interlocutory hearing.
Michael Elders – Advocate