High Court Judgment Template



Case No: B78YM721IN THE COUNTY COURT AT LINCOLNDate: 09/12/2016Before :HIS HONOUR JUDGE GODSMARK QC- - - - - - - - - - - - - - - - - - - - -Between :Paul M WellsClaimant- and -Ralph WoodFirst Defendant-and-Nottinghamshire County Council Second Defendant- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Mr G Exall (instructed by Thompsons) for the ClaimantMr A Sugarman (instructed by DWF) for the First DefendantMr A Foster (instructed by Bevan Brittan) for the Second Defendant Hearing dates: 21st September 2016,- - - - - - - - - - - - - - - - - - - - -JUDGMENTHis Honour Judge Godsmark QC : This case concerns the gritty topic of court fees and the effect of payment of the wrong fee on filing a County Court claim form. On 27th September 2012 the Claimant was injured when hit by a car being driven by the First Defendant. The precise circumstances of the impact are in dispute. What is agreed is that the Claimant was with his bicycle intending to cross a road. He planned to emerge from a gap in hedgerow running alongside the road; that gap being created and maintained for pedestrian access to and across the road. Driving along the road from the Claimant’s left was the First Defendant. It is alleged that he drove across to his offside and into the oncoming lane in order to pass a parked car. There is an issue as to whether the First Defendant mounted what was for him the offside kerb and hit the Claimant while he was waiting to cross or whether the Claimant started to cross the road and was hit in the carriageway.The Second Defendant is the highway authority. It is alleged that the hedgerow at the side of this road (and through which there was the pedestrian access gap) was overgrown such as to obstruct a driver’s view of the gap and anyone who might be waiting in it, and also the Claimant’s view of traffic coming from his left.In this accident the Claimant suffered an undisplaced fracture of his cervical spine and a compression fracture of his thoracic spine. The fractures healed well and the Claimant is left with discomfort which is alleged to cause him some problems at work.A letter before action was sent in April 2013. In due course that led to legal proceedings with a claim form submitted through the County Court Money Claims Centre. The claim was issued on 5th September 2015, just about 3 weeks before expiry of the primary limitation period. The claim form carried with it the required value certificate in the following terms:-“I expect the total claim to recover not more than ?15,000 including a claim for personal injuries of more than ?1,000.I expect to recover general damages of more than ?1,000.”The value certificate is used to calculate the appropriate court fee due under The Civil Proceedings Fees Order 2008. Where the sum of money claimeda)exceeds ?5,000 but does not exceed ?10,000 the fee is ?455;b)exceeds ?10,000 but does not exceed ?100,000 the fee is 4.5% of the value of the claim..For this claim therefore the value certificate indicated a fee of 4.5% x ?15,000 being ?675. In fact the fee paid was ?455 which was the appropriate fee for a claim in the bracket ?5,000 to ?10,000. The claim form was returned for solicitor service.Particulars of Claim were drafted by counsel in December 2015. The claim form, Particulars of Claim, a medical report from Proof Mulholland (consultant orthopaedic surgeon) and a Provisional Schedule of Special Damages were served late in December 2015 and filed at CCMCC Salford on 4th January 2016. The Particulars of Claim at paragraph 11 indicated an expectation of damages exceeding ?25,000. The Schedule of Special Damages included a claim in respect of loss of earnings (past and future) of ?21,000, services of ?1,296, miscellaneous losses of approximately ?500 and unquantified claims for loss of pension, loss of congenial employment and disadvantage on the open labour market.On 22nd January 2016 the First Defendant filed a Defence. That dealt with issues specific to the accident . Paragraph 13 of the Defence is as follows:-The statement of value set out at paragraph 11 of the Particulars of Claim indicating that the Claimant expects to recover damages in excess of ?25,000 is noted, as is the Provisional Schedule of Special Damages which sets out significant sums which are not admitted. The Claim Form limited the claim to only ?15,000. It was or ought to have been known to the Claimant at the time of the Claim Form that he intended to advance a claim worth in excess of that sum. The same was an abuse of process. The Defendant avers that the appropriate court fee has not been paid and as such the claim was not properly brought in time and is statute barred. Subsequently the Claimant did apply to amend the value certificate on the claim form to a sum exceeding ?25,000. That was permitted with a court order made on 24th June 2016 requiring payment of the increased court fee but with the permission to amend operating with effect from 24th April 2016 (to avoid any suggestion of relating back to date of issue).The limitation plea has led to this hearing on the preliminary issue of whether the claim is time barred under the Limitation Act 1980. If it is so barred then the question of exercise of the court’s discretion to allow the case to proceed under s. 33 Limitation Act 1980 arises. The Second Defendant is content to adopt the limitation submissions of the First Defendant although there is not in fact a limitation defence pleaded by the Second Defendant.By way of explanation of the fees position the Claimant relies upon a witness statement from a legal executive in the Claimant’s solicitors firm, Shelley Artingstall. That statement sets out how the valuation of ?15,000 certified on the claim form was arrived at. In short it is about the mid-point of what Ms Artingstall thought was the appropriate bracket of damages for pain, suffering and loss of amenity in the Judicial College Guidelines. The statement goes on to describe how on receipt of the medical report in August 2015 it was learned that the Claimant had changed jobs and there may be a loss of earnings claim but that could not then be accurately assessed. The statement concludes as follows:-I confirm that before service, I discussed lifting the limit of the claim form with my supervisor Peter Magee. We both considered that this should be dealt with at CMC. Given that the schedule of loss set out very clearly the Claimant’s claim, I was not attempting in any way to avoid payment of an increased court fee.”It will be noted that whilst the witness statement deals with recognition of the escalating value of the claim, it is silent as to why the wrong fee was paid even for the certified value of the claim. ?455 was the fee paid whereas on a claim not exceeding ?15,000 the correct fee was ?675.Although the First Defendant wished to cross-examine Ms Artingstall at this hearing she was unfortunately ill and unable to attend. There was, rightly in my view, no application to adjourn.In the event that the limitation argument fails, there is also before me an application by the Second Defendant for summary judgment on the basis that the claim against the highway authority has no real prospect of success. I will come to this in due course.The First Defendant’s position is that without the appropriate fee being paid for the claim there is no bringing of the claim form sufficient to stop the limitation clock from running. It makes no difference whether the incorrect payment is an innocent mistake or a deliberate attempt to issue proceedings without paying the proper fee (something akin to abuse of process).That I regard as a far-reaching submission. The court has issued a claim form, properly sealed and dated. However the suggestion is that the claim form is ineffective, at least for limitation purposes, because of payment of the wrong fee. A number of issues occur to me, there may well be others. I take them in no particular order.In argument counsel could not satisfy me as to the status of proceedings issued by the court against an incorrect fee. Are such proceedings void from the outset? Or are they only invalid if challenged? In this particular case an application to amend the value of the claim (with topping up of the court fee) was allowed. There was no suggestion that the claim was invalid for all purposes, only for the purposes of limitation. Thus the suggestion seems to be that proceedings issued with the wrong court fee are valid unless limitation is pleaded – in effect, voidable at the Defendant’s option. But what then of a case where there are multiple Defendants some of whom plead limitation and others do not? Alternatively of course it might be said that proceedings issued with the wrong court fee are defective for all purposes.What is the position of the Claimant who deliberately decides to limit his or her claim? This can and does happen with a party who has a claim which just creeps into a higher costs band. That Claimant may decide that it is not worth paying a higher fee for limited potential gain. The Court of Appeal has already recognised that such a tactical decision is perfectly permissible (see Dyson LJ in Khiaban v Beard [2003] EWCA Civ 358 @ para. 13). But what if something then happens (e.g the issue of a counterclaim) which alters the economics? Is the Claimant barred from seeking to amend the claim value and pay the higher fee or vulnerable to an application that the original claim is invalid because the wrong fee was paid for a claim the true value of which was known?Are claims to become subject to scrutiny, perhaps with litigation well advanced, if a Defendant detects that a fee error was made at point of issue? For my part I lean towards the view that the payment of the appropriate court fee is a matter between the paying party and HMCTS.What is the position in a Help with Fees case? A Claimant submits financial details along with an application for Help with Fees and as a result obtains full or partial fee remission. Is the Defendant to be entitled to obtain details of the financial details submitted in support of the application and challenge the fees remission with a view to showing that a Claimant has paid the wrong fee thus rendering the claim defective in some respect?What of the party who goes to seek legal advice from a solicitor as to making a claim right on the cusp of limitation? The solicitor may need a lot more information before being able to quantify the claim but be aware that the primary limitation period expires the next day. Proceedings must be issued but are those proceedings invalid because the solicitor was not in a position to assess the correct fee?The suggestion that payment of the wrong fee renders a claim in some way defective does not sit comfortably with the provisions in the Civil Procedure Rules. CPR 7 deals with the commencement of proceedings. Of note is CPR 7.2 headed “How to Start Proceedings”.(1) Proceedings are started when the court issues a claim form at the request of the claimant.(2)A claim form is issued on the date entered on the form by the court.CPR 7.2 is subject to a gloss applied by Practice Direction 7A, paragraph 5 which is headed “Start of Proceedings”.5.1Proceedings are started when the court issues a claim form at the request of the claimant (see rule 7.2) but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is “brought” for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date.5.2The date on which the claim form was received by the court will be recorded by a date stamp either on the claim form held on the court file or on the letter that accompanied the claim form when it was received by the court.5.3An enquiry as to the date on which the claim form was received by the court should be directed to a court officer.5.4Parties proposing to start a claim which is approaching the expiry of the limitation period should recognise the potential importance of establishing the date the claim form was received by the court and should themselves make arrangements to record the date.(Paragraph 5.5 which follows is not relevant)Neither CPR 7.2 nor paragraph 5 of Practice Direction 7A make any reference to payment of fees. There is also express provision within the Civil Procedure Rules dealing with sanctions for non-payment of fees. CPR 3.7 makes provision for the consequences of non-payment by a Claimant of certain (not all) fees. The rule provides for a notice to be sent to a Claimant requiring payment of the proper fee in default of which the claim is struck out. CPR 3.7 does not apply to failure to pay the correct fee on issue.However of particular note are the terms of CPR 3.7A. So far as relevant this provides as follows:-(1)This rule applies where(a)a defendant files a counterclaim without - (i)payment of the fee specified by the relevant Fees Order; or (ii)making an application for full or part remission of the fee: or ………………….(2)The court will serve a notice on the defendant requiring payment of the fee specified in the relevant Fees Order if, at the time the fee is due, the defendant has not paid it or made an application for full or part remission.(3)The notice will specify the date by which the defendant must pay the fee.(4)If the defendant does not - (a) pay the fee; or (b)make an application for full or part remission of the fee, by the date specified in the notice, the counterclaim will automatically be struck out without further order of the court.Thus CPR 3.7A provides in detail what happens if a counterclaim is filed without the appropriate fee. The filing remains effective but the counterclaim is vulnerable to being struck out if the notice requiring payment is not complied with. If the Defendant in the current case is correct, a claim issued with the wrong fee is ineffective to stop the limitation clock from running, but a claim introduced by counterclaim without the correct fee is effective to stop the limitation clock from running but is vulnerable to being struck out in default of compliance with a payment notice. That is a peculiar distinction.For my part, I would start from the position that a claim form issued by a court and sealed is effective for limitation purposes regardless of the fee paid. Issue of the claim form marks the commencement of proceedings. Such an approach provides certainty as to the date of bringing of proceedings (subject to paragraph 5 of Practice Direction 7A). It also avoids what I regard to be the undesirable potential for satellite litigation surrounding what the appropriate fee would have been in particular circumstances around the time of issue.The Defendants say that I am constrained by authority to come to a different view. To that I now turn.The authorities cited by the Defendants in support of their submissions start with Aly v Aly (1984) 81 LSG 283 in the Court of Appeal. The case involved a personal injury claim which had been issued within the limitation period. At that time a period of 12 months for service was allowed. Just before the expiry of the 12 month period an application was made ex parte to extend time for service and granted. Following service, the Defendant sought to set aside the extension of time and applied to the court for a summons. There was a 14 day time limit under the then rules. The letter containing the application for the summons was received by the court within the 14 days but the summons was not stamped and issued by the court until after the 14 days had elapsed. In considering whether there had been an “application to the court” within 14 days the Court of Appeal said:-“..one can only treat the words “apply to the court” as meaning doing all that is in your power to do to set the wheels of justice in motion according to the procedure that is laid down for the pursuit of the relief which you are asking.”The Court of Appeal held that this test was satisfied by getting the application for the summons to the court in time.The caser of Aly was cited in the Court of Appeal decision in Barnes v St Helens Metropolitan Borough Council [2006] EWCA Civ 1372. That case concerned the question of when proceedings were “brought” for the purposes of the Limitation Act 1980. A request for the court to issue a claim form was received by the court within the limitation period but the court did not issue the claim form until after the limitation period had expired. The Court of Appeal held that what was required by the Limitation Act was for proceedings to be “brought” within time. At paragraph 16 of the judgment Tuckey LJ said:-“The time at which a claimant “brings” his claim form to the court with a request that it be issued is something he has to do; the time at which his request is complied with is not because it is done by the court and is something over which he has no real control. Put another way one act is unilateral and the other is transactional. Looked at in this way I do not agree with the judge or Mr Norman that in this context the verb “to bring” has the same meaning as the verb “to start”. The 1980 Act can perfectly properly be construed so that in the context of the CPR a claim is brought when the claimant's request for the issue of a claim form (together with the court fee) is delivered to the court office.” Thus a claim can be “brought” before it is “started” on issue. What is significant for current purposes is the reference to the request for issue of the claim form together with court fee.The case of Page v Hewetts [2012] EWCA Civ 805 brings the question of court fees into focus. The claim form alleged breach of trust and breach of contract and included a claim for an account. The initial submission of a request to issue well within the limitation period was lost somewhere – no claim form was issued. Time for limitation purposes started to run from 6th February 2003. A second request to issue was received by the court on 6th February 2009. The claim form was sealed and issued on 17th February 2009 (outside the limitation period). There was an application for summary judgment by the defendant on the basis that the claim was out of time asserting that the 6th February 2009 request to issue had not been accompanied by the correct fee. Summary judgment was granted and the claim dismissed. On appeal, the Court of Appeal decided that the wrong test for summary judgment had been applied and set aside judgment for the claim to continue.In considering the case Lord Justice Lewison echoed the sentiments expressed in Barnes and favoured an approach based on risk allocation. At paragraphs 32 and 33 he said:-“32. Taken literally, the ratio of Barnes v St Helens Metropolitan Borough Council is that once the claimant has delivered his request for the issue of a claim form to the court office, he has “brought” his action. 33. However, literalism is not fashionable, so it is also necessary to consider the policy that underpins the decision. Tuckey L.J. dealt with this too. He pointed out that this meant that a claimant had the full period of limitation within which to “bring” his claim; and that it would be unjust if he had to take the risk that the court would fail to process it in time. It does not seem to me that the reason why the court fails to process the request in time alters the justice of the case. If it is unjust for the claimant to take the risk that the court staff are on strike, it seems to me to be equally unjust for him to have to take the risk that a member of the court staff might erroneously put his request in the shredder or the confidential waste, or that his request is destroyed by flood or fire in the court office, or is taken in a burglary. Each of these might be reasons why the court failed to process the request in time. Essentially the construction of the Act that this court favoured in Barnes v St Helens” Metropolitan Borough Council is based on risk allocation. The claimant’s risk stops once he has delivered his request (accompanied by the claim form and fee) to the court office. PD 7 cannot, in my judgment, alter the correct construction of the Act. Then at paragraph 38:-38. If, therefore, the claimants establish that the claim form was delivered in due time to the court office, accompanied by a request to issue and the appropriate fee, the action would not, in my judgment, be statute barred. In my judgment both the Master and the judge were wrong to hold the contrary.”These passages bring to the fore the requirement for a request to issue proceedings to be accompanied by the appropriate fee before it can be said that the claimant has done all within his power to set the wheels of justice in motion.The case of Page v Hewetts having been resurrected for trial, it was heard by Hildyard J. and reported at [2013] EWHC 2845 (Ch). He found the following facts:-a)That a request to issue had been received by the court on 6th February 2009 i.e the last day of the limitation period.b)That the request was accompanied (mistakenly) by the wrong fee which was insufficient by ?400.Having so found, the learned judge had then to consider whether failure to proffer the correct fee meant that a claim was not “brought”. He concluded that in such a situation the claim was not brought. Paragraphs 56 and 57 of his judgment set out his reasoning.“56 . It is, in a way, concerning that the fate of a claim should depend upon the miscalculation by such a relatively small amount of a court fee. I have considered whether it is so de minimis that the Court should not take it into account, or make some exception or allowance. 57. However, as I read Lewison LJs judgment in the Court of Appeal, the rationale of treating the receipt by the court of the required documents as sufficient and as transferring to the court the risk of loss or delay thereafter (see paragraph 31 of Lewison LJ's judgment) is that it is unfair to visit such risk on a claimant after he has done all that he reasonably could do to bring the matter before the court for its process to follow. Lewison LJ expressly described what had to be established by the Claimants: that the claim form was (a) delivered in due time to the court office, accompanied by (b) a request to issue and (c) the appropriate fee. In my judgment, the failure to offer the appropriate fee meant that the Claimants had not done all that was required of them; and they had left it too late to correct the error, which was a risk they unilaterally undertook.Thus in Page v Hewetts with the claim form issued or started outside the limitation period, the claimant was unable to show that the claim had been “brought” within that period because of a failure to send the appropriate fee with the request to issue.The Defendants in this case then point to the case of Lewis v Ward Hadaway [2015] EWHC 3503 (Ch). Again the facts as found are relevant. The litigation involved 31 claimants including Mr Lewis and concerned property transactions arranged through a particular property group. The 31 claimants had the same solicitor who issued proceedings deliberately understating the value of each claim so as to minimise the court fees payable on issue. In 11 of the 31 cases the claim form was delivered to the Court before expiry of the limitation period, but not issued by the Court until after. In the remaining cases the claim forms were issued before the limitation period expired. Mr John Male QC sitting as a Deputy High Court Judge found that this deliberate understating of value so as to minimise the court fee payable on issue was an abuse of process. However on the facts he declined to exercise his discretion to strike out the claims as an abuse of process.However the Deputy High Court Judge did go on to consider the Defendant’s application for summary judgment on the basis that the failure to proffer the appropriate fee with the request to issue touched on the question of whether the claims had been brought within time. Significantly, that application for summary judgment based on limitation was made only in the 11 claims where the claim form had not been issued within the limitation period (see paragraph 87 of the judgment).Given the Deputy High Court Judge’s earlier finding that the failure to proffer appropriate fees had been an abuse of process it is perhaps not surprising that he concluded that the claimants had not done all in their power to set the wheels of justice in motion. He expressed himself in this way in paragraphs 99 and 100 of his judgment:-“99. For the purposes of this application, it is common ground between the parties that the claim form was delivered in due time to the court office, accompanied by a request to issue. The only question which I have to determine on this application is whether the claim form and the request were accompanied by the “appropriate fee”. In determining that question, bearing in mind what the Court of Appeal said in Page v Hewetts was the policy underpinning Barnes v St Helens Metropolitan Borough Council , and also bearing in mind what the Court of Appeal said in Aly v Aly , I have to consider whether, in this case, the claimants did all that was in their power to do to set the wheels of justice in motion according to the procedure that was laid down for the pursuit of the relief which they were seeking. And, as per Hildyard J in Page v Hewetts , I must also have in mind the underlying rationale, which is whether the claimants had done all that they reasonably could do to bring the matter before the court for its process to follow, in order for the claimants' risk to cease. 100. Earlier in this judgment, I found that the conduct of the claimants in the manner in which they paid the fees was an abuse of process. In these circumstances, looking at the underlying policy just mentioned, I consider that the claimants did not do all that was in their power to do to set the wheels of justice in motion. It was within the power of the claimants to conduct themselves in a manner which was not an abuse of process. They could have done so by paying at the outset the fees properly due for the claims which they always intended to make. Equally, looking at the underlying rationale just mentioned, I consider that the claimants did not do all that they could reasonably have done to bring the matter before the court for its process to follow. Again, the claimants could have acted in a manner which was not an abuse of process. So, at the outset they could have paid the fees properly due for the claims which they always intended to make.That brought the current Defendants to the case of Bhatti v Asghar [2016] EWHC 1049 which, according to the defendants’ skeleton argument followed Page and Lewis. That is not how I read the case. In Bhatti the issue before Warby J was the same as is now before me. The case concerned 2 claims for damages arising out of a property deal. Limitation on those claims expired in July 2015 and February 2015. In both cases claim forms were issued well inside the limitation period, in October 2014 and December 2014 respectively. Defences were subsequently filed which did not plead any limitation defence.Shortly before trial the defendant applied to strike out the claims or alternatively for summary judgment. It was asserted that there was an underpayment of court fees on the issue of each claim. The application came on just about a month before trial. The allegation of abuse of process was not pressed and thus not dealt with. However an argument was mounted to the effect that as a consequence of underpayment of the court fee the claims had never been brought for limitation purposes. Thus the limitation had continued to run despite the existence of the proceedings and the limitation period had expired post-issue in July 2015 and February 2015 respectively.Warby J rehearsed the authorities referred to above and noted (at paragraph 30) that “the key passages from these authorities appear to show that the court’s approach is and should be a strict one.” He then set out what he thought the position appeared to be at paragraph 34.“34. These authorities appear to identify a clear principle by which the court is to determine whether a claim has been “brought” for the purposes of stopping the limitation from running, the principle being that a claim is only brought for those purposes when the party concerned has done all that is in his power or to set the wheels of justice in motion. If he has done that, then the risk of any failing on the part of the court is cast upon the court and the opposite party. Doing all that is in one's power often, and perhaps ordinarily, involves proffering the correct fee to the court office at the same time as presenting the claim form and the applicable particulars of claim. In Page and in Lewis , a failure to do that led to the failure of the claim. It is however possible in principle that a failing on the part of the court at that stage of the process might lead to the claim being brought for limitation purposes, even though the correct fee was not paid. If, for instance, the court assumed the burden of calculating the appropriate fee and made an error, for which the claimant was in no way to blame it might, in appropriate circumstances, be said that the claimant had done all that was in his power or, to adopt the words of Mr Male QC, all that he reasonably could do to bring the matter before the court in the appropriate way.”Warby J was satisfied that in each of the 2 cases before him there had been an underpayment of fees due on issue. However he declined to grant summary judgment saying (at paragraph 37)“37. I do not however propose to grant summary judgment on either of the contract claims, for these reasons: (1) the limitation period has never been pleaded; (2) this basis for seeking summary judgment was not explained in the application notice of February 10; (3) nor was it raised in the defendant's evidence served on 3 March 2016, or at least not in any clear way; (4) it was first raised in a clear and coherent way in the skeleton argument for this application, which I am told was first served shortly before the hearing before the Master; (5) Mr Brittain has been unable to offer any adequate justification or excuse for the fact that the point has been raised for the first time at such a late stage; in this context I note that the Court of Appeal decision in Page dates back to 2012; (6) in all the circumstances I do not consider that the claimants have had a full, fair and reasonable opportunity to assess and canvass the issues arising from the argument advanced; I recall that Mr Challenger had to ask for copies of the authorities relied on as the argument was proceeding this morning; (7) I bear in mind also that the limitation argument is not put forward as a complete answer of the claims but only as an answer to the claims in contract. In all these circumstances I consider there are compelling reasons why the issue of limitation should be addressed at trial and not now.”It thus seems to me that having noted what the law “appears to be” Warby J declined to enter summary judgment preferring to leave the issue for fuller argument at trial. He certainly did not follow Page and Lewis to the extent of entering summary judgment to dismiss claims where claim forms had been issued within the limit period albeit on underpayment of fees.I was also referred to Glenluce Fishing Company Limited v Atermota Limited [2016] EWHC 1807 (TCC) a decision of Mr Roger ter Haar QC sitting as a Deputy High Court Judge. The claim involved allegedly defective engineering works done to a fishing vessel. It appears that the limitation period on the claim expired in March 2016. A claim form was issued on 15th February 2016, within the limitation period based on a claim then valued at “?69,694.06 but .. likely to increase once the claimant has finally quantified their loss of use claim”. The issue fee paid was based on that valuation. On 8th June 2016 Particulars of Claim were served in which damages were particularised in the total sum of ?162,132.06. That was accompanied with a request that the Defendant consent to an amendment to the Claim Form to reflect the increased value of the claim. Consent was not forthcoming and so an application to amend was made and came before the Deputy High Court Judge.The authorities rehearsed above were put before the court. The Deputy High Court Judge acknowledged the effect of those authorities by saying at paragraphs 46 and 47 of the judgment:-“46. In my view, the three first instance decisions to which I have referred, Page , Lewis and Bhatti , significantly extend the practical ambit of the Court of Appeal decisions upon which they are based. What the Court of Appeal cases were primarily concerned with was the question whether a party (in Aly v Aly a defendant, in the other two cases a claimant) could lose his rights to bring a claim or to make an application because of an error in the court office. It is unsurprising that the Court of Appeal repeatedly set its face against that proposition. In none of those cases did the Court of Appeal specify precisely what a party had to do in order to transfer the risk, as it is put, to the Court.47. From those appellate cases has developed a somewhat hard edged principle as those cases have been applied at first instance whereby a claimant whose lawyers miscalculate the fee due, or absentmindedly pay the wrong amount, may cause a claimant to lose his or her right to bring an otherwise meritorious claim to court. At present it seems that the fact that the Defendant has suffered no prejudice and indeed may receive an unexpected benefit finds no place in the principle, and there appears to be no relief from sanction available from the court. It may be that as this principle is discussed and developed in future cases, those hard edges will be softened.”Mr ter Haar declined to extend these decisions on the bringing of a claim for limitation purposes to an application to amend saying at paragraph 57:-“57. In my view the recent first instance decisions upon which Mr. Jagasia relies should be limited in their application to the circumstances expressly considered in those cases, namely applications to strike out claims on the basis that those claims were not “brought” within the applicable limitation period. I do not consider that any of those decisions justify a root and branch revision of the approach to be adopted to an application to amend.”I was also referred to the case of Lifestyles Equities CV v Retail Ltd [2016] EWHC 2092 (Ch) in which Master Clark dealt with an application for stay of an action pending payment of the correct issue fee. However that hearing and decision was concerned with identifying the correct fee and not the issue I am concerned with.On my analysis of the authorities above a number of matters emerge:-a)In none of the cases has it been concluded that a claim form issued and sealed by the court (regardless of fee paid) is not effective to stop the limitation clock.b)The authorities do point to what is necessary to bring a claim before the claim form is issued. What is required is that the Claimant do all in his power to set the wheels of justice in motion (including payment of the appropriate fee).c)A claim may be struck out as an abuse of process if there is a deliberate decision to avoid paying the appropriate issue fee. However the finding of such an abuse of process and the courts discretionary reaction to it are quite separate from the limitation status of a claim.Accordingly I do not consider that I am constrained by any authority to hold that a claim form issued and sealed by the court within the limitation period is ineffective to stop the limitation clock, whether or not the correct fee for issue has been paid.In my judgment the Defendants’ submission before me are effectively based on the proposition that “bringing ” a claim is quite separate to “starting” a claim. Whilst they are not the same, that does mean that they are mutually exclusive. To me the starting of a claim will incorporate the bringing of a claim. I do not accept that a claim form can be issued and thus the claim started without that claim also being brought (within the meaning of the Limitation Act 1980).However that does not mean that a claim cannot be brought before the claim form is issued. As the authorities cited above indicate (and as is specifically provided for in CPR PDA para 5) a claim may indeed be brought before the claim form is issued. What needs to be done is all within the power of the Claimant to set the wheels of justice in motion. That begs the question of when the wheels of justice start to move. In my judgment that is certainly no later than the issue of the Claim Form. With that event the Claimant has in fact set the wheels of justice in motion and the claim is both “brought” and “started”.Thus, whilst there may be questions yet to be answered on how payment of the incorrect court fee affects the bringing of a claim for limitation purposes where the Claim Form is issued outside the limitation period, that is not what I am dealing with here. In the application before me the Claim Form was issued within the limitation period and in my judgment with that step the claim was both brought and started.That leaves the question of payment of the wrong fee. It is not said that the current claim is an abuse of process for that reason. Even if it were that would fall to be considered quite separately to questions of the limitation effect of issue of the claim. In my judgment questions of payment of court fees are primarily between the paying party and HMCTS. Such matters may become of interest to other parties where it is alleged that there is abuse of process or in the particular circumstances of investigating whether a party has done all in its power to set the wheels of justice in motion so as to have brought the claim before issue. It may be that on having a shortfall in payment brought to his or her attention a Judge will stay a claim pending payment of the correct sum but that will be a judicial decision. Otherwise non-payment of the correct fee may well attract the operation of CPR 3.7 and 3.7A with notices being sent giving an opportunity to pay before being struck out.In the current case, the payment of the wrong fee at issue had no effect on the validity of the Claim Form or its stopping of the limitation clock. It was a matter which required correcting and that has now happened.This hearing before me was on 21st September 2016. It now transpires that on the day before, these arguments were again being rehearsed in the High Court this time before Stuart-Smith J in the case of Dixon & Dixon v Radley House Partnership [2016] EWHC 2511 (TCC). He delivered his judgment on 17th October 2016 at a time when this judgment had been prepared in draft pending written submissions on the issue of amendment of the Particulars of Claim. In providing submissions for the First Defendant on that issue Mr Sugarman has brought the decision in Dixon to my attention with a speed which is impressive and for which I am indebted.Dixon was an application to amend defences to plead limitation. The point being taken was that a fee had been paid by the Claimant on issue which subsequently proved to be insufficient when the claim was quantified more fully with Particulars of Claim. The Defendants sought to plead that, in effect, where a Claimant paid a court issue fee which later turned out to be insufficient, then that prevented his claim from being “brought” for limitation purposes. That raised similar although not identical questions to those I have before me.In his judgment in Dixon Stuart-Smith J has identified the same distinction in the authorities as I have sought to describe above. He also came to similar conclusions. He said at paragraphs 33 and 34:-“33. There is no statutory provision, either in the relevant Orders or elsewhere, which either states or implies that issued proceedings are in any sense invalid or ineffective if the Court issues them in the normal way but having accepted a fee which either is or becomes less than the proper fee for the claim. It is, in my view, obvious that the payment of fees is primarily the concern of the Court, which looks to the payment of fees as a source of revenue. The process by which the Court may check whether the right fee has been proffered has not been the subject of enquiry in the present application. It is of course possible that the Court may on occasions fail to require the right fee from a party in respect of a given step as the result of a mistake or misunderstanding on the part of the Court. ?34. It is axiomatic that, subject to one qualification, time stops running for the purposes of the Limitation Act 1980 when proceedings are issued. The qualification is that time does not stop running for claims that are not included in or comprehended by the proceedings as issued.” ?Later at paragraph 46 he added:-“46. In a case where (a) abusive conduct is not present and (b) the court sets the wheels of justice in motion by issuing proceedings but (c) the Claimant has not paid and the Court has not required the correct fee, I reject the submission that an action is not brought for the purposes of the Limitation Act 1980 at the moment of issue. There is no support for the submission either in statute or in authority other than in Bhatti. For the reasons set out above I am not able to follow the path taken by Bhatti”. ?In Dixon Stuart-Smith J held that the question of whether payment of the correct court fee was relevant only to the “bringing” of proceedings before issue. He held, for reasons similar to those set out by me above, that payment of the wrong fee on issue (apart from abuse of process) did not affect the validity of the Claim Form or prevent the stopping of the limitation clock. Indeed he concluded that such a limitation defence based on the contrary had no real prospect of success.Mr Sugarman invites me to prefer the approach in Page and Bhatti. For my part I consider that those cases do not decide the point I am addressing which is much closer to that decided by Stuart-Smith in Dixon. I consider myself bound by the judgment of Stuart-Smith J but if I am wrong about that and there are conflicting High Court decisions on the same point, I prefer the decision in Dixon for the reasons which I have set out extensively above.My conclusion is thus that this claim was brought within the limitation period.s.33 Limitation Act 1980If I am wrong about the effect of the issue of proceedings I would have to consider the Claimant’s application to allow the claim to proceed under s.33 Limitation Act 1980. By s.33(1) Regard must be had to the prejudice to the parties by either applying or disapplying the limitation period and by s.33(3) the court to have regard to all the circumstances of the case and in particular:-(a) the length of, and the reasons for, the delay on the part of the plaintiff;(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed… (c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.I accept that it is for the Claimant to show that in the particular circumstances of the case it would be equitable to allow the claim to proceed although brought outside the limitation period and that it is no light burden.To me the most important of all of the circumstances of the case would be that, on any account, this claim was started within the limitation period. A letter of claim was sent in April 2013 (7 months after the accident) which led to the issue of proceedings within time.Looking at the specific considerations of s.33(3):-a)Delay The delay is in effect the payment of the correct fee. The reasons for that are contained in Ms Artingstall’s witness statement although that does not explain why the wrong fee was paid initially. Whilst there is a lack of full explanation, the delay between issue and payment of the correct fee is about 9 months and as far as I can see caused no prejudice at all.b)Cogency of evidence Again the delay is in effect 9 months but in the context of a claim which has been started within time. I do not consider there will be any substantial effect on the cogency of evidence.c)Defendant’s conduct. There is no criticism of the Defendants’ conduct.d)Disability of the Claimant Not relevant.e) & f)Promptitude of Claimant A letter of claim was sent within 7 months of the accident. Although the claim could have been pursued more speedily there is nothing outside what he court sees regularly in such cases without attracting criticism.Given that this claim was issued within the limitation period, the s.33(3) considerations do not lead me to consider that either Defendant would be prejudiced in allowing the claim to proceed out of time. I would have found it equitable to apply s.33 Limitation Act 1980 so as to permit the claim to proceed.Summary Judgment / Application to Amend Particulars of ClaimThe Second Defendant highway authority has applied for summary judgment on the basis that the claim against it has no real prospect of success. The application was based on the Claimant’s account that the First Defendant mounted the pedestrian area within which he was standing (or was at least 99% so). This alongside the pleading that the untended state of the hedge obstructed the Claimant’s view from the pedestrian area. If the First Defendant mounted the pedestrian area, the point made by the Second Defendant is that the state of the surrounding hedgerow in so far as it obstructed the Claimant’s view was irrelevant and could not attract liability in the Second Defendant.As argument before me developed it emerged that the Claimant was alleging that the hedge was not so much obstructing the Claimant’s view but rather was obstructing the First Defendant’s view of the presence of the Claimant. It also seemed to me that there might be another issue for the trial judge to grapple with. The First Defendant was alleging that far from mounting the pavement, it was the Claimant who emerged from the cut-through onto the carriageway and into his path. Whilst that was not the Claimant’s case, it might be that the judge found that he did emerge onto the highway and might conclude that this was at least in part due to the overgrown state of the hedge obstructing the Claimant’s view of oncoming traffic.As these points were ventilated it became evident that the Particulars of Claim might benefit from further attention. An oral application to amend was made. I ordered that a proper draft be prepared and served with provision for written submissions if the draft was controversial. It seemed to me that clarification of the Claimant’s case, and/or the pleading of an alternative case should the court find he did emerge onto the highway, might well dispose of the summary judgment application.The proposed Re-Amended Particulars of Claim have attracted opposition. The proposed amendments are the new paragraphs 8A and 8B. Paragraph 8A sets out the Claimant’s causation case against the Second Defendant on the Claimant’s primary factual case i.e that but for the overgrown hedge the First Defendant would have been able to see the Claimant, alternatively that the Claimant would have been able to see the First Defendant’s approach and take evasive action.Paragraph 8B deals with the Claimant’s alternative factual case which caters for the possibility that the court may find that he did enter the highway into the path of the First Defendant. The proposed amendment advances a case:-a) against the First Defendant for failing to see the Claimant and driving too fast for the circumstances; b)against the Second Defendant in that the overgrown hedge prevented the Claimant and Defendant from being able to see each other.The First Defendant objects to the amendment in paragraph 8B(1) as raising a self-contradictory factual case. I do not accept that. What is being anticipated is the possibility that the court may find facts which are not on all fours with the Claimant’s primary factual case but which may still give rise to some liability in the First Defendant. There is nothing objectionable in that nor any prejudice to the First Defendant. The evidence will be exactly the same.The Second Defendant makes no real objection to the new paragraph 8A. The objection relates to paragraph 8B(2) and suggests that the proposed amendments are speculative and inconsistent with his primary factual case. In my judgment it is no bar to a proposed amendment that a party anticipates possible factual findings within the same factual matrix. There is no new cause of action being pleaded here. The Claimant is simply identifying how he puts his case in the event that certain factual findings are made. Again there is no prejudice to the Second Defendant in that the evidence at trial will not be effected by the proposed amendment.I accordingly allow the proposed re-amendments to the Particulars of Claim.What is not clear to me from the Second Defendant’s written submissions is whether the Second Defendant maintains that summary judgment should still be entered even once the re-amendment is made. I suspect not (understandably) from paragraph 25 of the latest written submissions from the Second Defendant. I can also see that there is likely to be a need for directions as to filing Amended Defences, with consequent directions and issues as to costs to be considered in the light of this judgment.I propose to hand down this judgment on 9th December 2016 at 10am in Nottingham Justice Centre. If the parties are able to agree an order consequent upon the judgment there will be no need for any attendance. If an order cannot be agreed (and that may include the Second Defendant wishing to continue with its application for summary judgment) then if counsel are available I will hear further argument on 9th December providing it is limited to 30 minutes. If either that date is inconvenient to counsel or more than 30 minutes is likely to be required I will adjourn further argument to a date to be fixed dependant on who needs to be heard and what time is required.In the event that I need to adjourn off further argument on 9th December 2016 I will also order that time for applying for permission to appeal shall not run until the adjourned date.HHJ Godsmark QC ................
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