Mr Neville Cross v Black Bull (Doncaster) Limited
The Appeal Judgement was handed down in the case of Mr Neville Cross v Black Bull (Doncaster) Limited on 20th December 2017. The case at first instance concerned a claim for personal injury brought by the Claimant. At the time of issue of proceedings, the case was valued at £10,000 but the Claimant’s Solicitor wrote to the Defendant prior to issue and advised that they reserved the right to amend the value of the claim should further information materialise. Three months after the issue of proceedings, the Schedule of Loss was prepared and the same totaled £41,678.
The Defendant thereafter issued an Application for an Order that the Claimant’s claim be struck out for an abuse of process, due to the Claimant “seeking improperly to avoid payment of the Court fee.”
Following the Application, the Claimant completed their Directions Questionnaire and the directions sought included a provision that the claim be amended to a value of £60,000, with the additional Court fee to be paid by the Claimant. Nevertheless, at the Application Hearing the DDJ struck out the Claimant’s claim for damages, finding that the Claimant had issued proceedings at a lower rate deliberately to avoid paying the higher Court fee.
The Claimant appealed the decision and it fell to HHJ Robinson to consider the issue. He considered the Claimant Solicitor’s pre-action letter to the Defendant and described the same as “a very sensible letter, seeking to tease out a settlement prior to issue of proceedings.”
The final paragraph of the letter to the Defendant read as follows:
“Finally on the basis of information presently available and in order to keep court fees to a minimum we propose to provisionally assess quantum so as not to exceed £10,000. This is on the strict understanding that we reserve the right to claim such sums as may be appropriate in due course. Unless we hear from you to the contrary we shall assume this is agreed. If, however, you do formally object we shall be required to pay a higher court fee and will produce this letter to the court on assessment, if necessary, in support of a claim to recover court fees at that higher level. “
Whilst the DDJ had inferred from this, and in particular the phrase “to keep Court fees to a minimum,” that the Claimant’s Solicitor was seeking to avoid payment of the Court fees, HHJ Robinson was of an entirely different opinion. He stated that “ the clear meaning of that phrase, taking the letter as a whole, is “legitimate minimum”. I do not read into the letter an intention to evade court fees. I read it as meaning quite the opposite. “
HHJ Robinson held that the DDJ had been wrong to reach the conclusion that the Claimant’s solicitor had deliberately abused the process and stated that “it was impermissible for the DDJ to speculate that the objective of the Claimant’s solicitors was to engage in fees avoidance.”
Further, it was held that even if there had been any element of abusive behaviour on the part of the Claimant’s Solicitor, to strike the claim out would have been far too draconian a response. HHJ Robinson stated that “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.” HHJ Robinson therefore allowed the Appeal and the Order for strike out was set aside.
In terms of costs, the Claimant had made a Part 36 offer to settle the Appeal, with the strike out Order to be set aside and the Order for costs to be replaced by an Order for costs in the case. At the Appeal, the Claimant obtained an Order for the costs of the Hearing before the DDJ to be paid in any event. HHJ Robinson held that the Claimant had made a valid Part 36 offer and a more beneficial result had been achieved on Appeal. The Defendant was therefore ordered to pay the costs incurred from 21 days after the Part 36 offer was made on an indemnity basis.