Atha & Co v Liddle: When is a claim brought for limitation purposes, where value of claim was deliberately misstated
http://www.bailii.org/ew/cases/EWHC/QB/2018/1751.html
The general rule is that, for the purposes of limitation, a claim is brought as soon as the claimant's request to issue the claim form is delivered to the court office (see BC v Barnes). However, there has been conflicting caselaw on the position where the value of the claim has been misstated (often in order to pay a lower court fee).
In this case, the claimant said that the value of her claim was unknown at the time she drafted the claim form. She had put a value of between £10,000 and £25,000 (paying the correct court fee of £1,250 for that amount) and not higher because she said she feared that she might have difficulty recovering the higher fee in costs if it subsequently turned out that her claim was worth less than £25,000. Turner J said that that approach had been an abuse of process. Under CPR r16.3(2)(c), the claimant must state in the claim form if it "cannot say how much is likely to be recovered" and the appropriate fee for such a claim is £10,000. The judge said that "The ordinary and proper use of the court process when providing the statement of value on a claim form involves the recording of the unvarnished truth", but that this abuse had not justified a strike out of the claim.
Had the claim been brought before the expiry of the limitation period? The judge said that the court is entitled to consider the "risk" which is transferred on delivery of the claim form to the court office. Prior caselaw has referred to the risk that the court office will not process the claim on time, but Turner J said that there was never any risk here, since the correct fee had been paid for the statement of value on the claim form: "Putting it another way, upon the receipt of the claim form the process ceased to be transactional".
The judge refused to follow the decision of Lewis v Ward Hadaway (see Weekly Update 02/16), in which it was held that a claim had not been "brought" for limitation purposes where the value of the claim had been deliberately misstated in order to pay a lower court fee. That was because Turner J felt that the claimant's approach had had no impact whatsoever on the timing of the issue of the claim form. Accordingly, the claim had been brought in time.
The judge did, however, recognise that "the proliferation of irreconcilable first instance decisions over the last few years is such that the time is now ripe for authoritative guidance from the Court of Appeal".
COMMENT: This case involved a situation where the value of the claim form was deliberately misstated in order to pay a lower fee. As noted in the judgment, prior caselaw has held that deliberate (or even sometimes innocent) misstatement of the value of the claim form meant that a claim form had not been "brought" for limitation purposes, although in Dixon v Radley House (see Weekly Update 37/16), it was held that a genuine miscalculation of the value of the claim did not prevent a claim being "brought" (although the danger in undervaluing a claim (innocently or not) is that if the further claim is not identified with sufficient clarity in proceedings when initially issued, a later amendment may involve a new claim after the end of the limitation period (and so the court may refuse permission to amend the claim)).
PJSC Aeroflot v Russian Airlines: Court awards indemnity costs after claim discontinued
http://www.bailii.org/ew/cases/EWHC/Ch/2018/1735.html
The basic rule where a claim is discontinued is that the claimant will be liable for the costs incurred by the defendant up to the date on which the notice of discontinuance was served. The defendant's costs will usually be assessed on the standard basis, if not agreed, but indemnity costs can sometimes be ordered. This case is an example of indemnity costs being awarded.
Although Rose J held that there is no "Clutterbuck rule", the approach set out in Clutterbuck and Paton v HSBC [2016] was sound: "Where a claimant makes serious allegations of fraud, conspiracy and dishonesty and then abandons those allegations, thereby depriving the defendant of any opportunity to vindicate his reputation, an order for indemnity costs is likely to be the just result, unless some explanation can be given as to why the claimant has decided that the allegations are bound to fail". Here, allegations of fraud had been pursued over eight years and the proceedings were prosecuted vigorously up to a few hours before the claim was abandoned (without explanation), the afternoon before the trial. Accordingly, indemnity costs were awarded.
There was no need to show that the misconduct of the paying party had led to wasted costs. The judge also held that it would be inappropriate to take the defendants' refusal to mediate into account. She was satisfied that there was never any possibility of the parties making any progress in mediation (or even agreeing the identity of a mediator), and cases where allegations of fraud and serious wrongdoing have been made "are intrinsically unsuitable for mediation".
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