In determining whether a party had properly brought a claim before the court so as to stop the clock for limitation purposes, the requirement that the from be accompanied by the “appropriate fee” was not satisfied in circumstances where the act of payment of the fee was in itself an abuse of process. In such circumstances, the claim had not properly been brought and time continued to run for limitation purposes.

John Male QC, sitting as a deputy judge of the Chancery Division, so held in a reserved judgment in granting the application by the defendant firm of solicitors, Ward Hadaway, for summary judgment on limitation grounds in relation to a number of professional negligence claims arising from property transactions brought by the claimants, Richard Lewis and others.

The claimants’ solicitors deliberately undervalued the claim in the initial claim form to avoid paying the higher issue fee in relation to larger claims. The claim forms were all subsequently amended and the higher court fee paid, the solicitors maintaining that the course had been adopted to allow the claims to be issued whilst waiting to be put into funds for disbursement costs by their lay clients.

JOHN MALE QC said that it was common ground between the parties that the claim forms were delivered in due time to the court office and that the only question was whether the forms were accompanied by the “appropriate fee”. In determining that question, and bearing in mind what the Court of Appeal in Page v Hewetts Solicitors [2012] CP Rep 40 said was the policy underpinning the decision in Barnes v St Helens Metropolitan Borough Council [2007] 1 WLR 879 and also bearing in mind what the Court of Appeal said in Aly v Aly (1984) 81 LSG 283 the court had to consider whether the claimants had done all that was in their power to set the wheels of justice in motion according to the procedure that was laid down for the pursuit of the relief that they were seeking. As per Hildyard J in Page v Hewetts Solicitors [2014] WTLR 479 the court had also to have in mind the underlying rationale which was whether the claimants had done all they reasonably could to bring the matter before the court for its process to follow, in order for their risk to cease. Having found that the conduct of claimants in the manner in which they paid the court fees was an abuse of process, and in the light of the underlying policy apparent from the authorities, the claimants had not done all that was in their power to set the wheels of justice in motion. It had been within the power of the claimants to conduct themselves in a manner which was not an abuse of process, albeit that technically the correct fee was in the end paid. From the outset they could have paid the fees appropriate to the claims they had always intended to make. Furthermore, in Page v Hewetts Solicitors the limitation defence succeeded because the solicitors had innocently miscalculated the fees due. It would be inconsistent and wrong if the limitation defence were to fail because of a deliberate abuse of process by the claimants.