Kerry Underwood


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In Various Claimants v MGN Ltd [2017] EWHC 1883 (Ch)

the Chancery Division of the High Court dismissed the Defendant’s application to strike out the claims for abuse of process and allowed the Claimants to amend the statements of value on the claim form, and pay the increased court fees.

The claim forms originally stated a value of “up to £100,000″ and the Defendant offered that sum but the Claimants declined.

As the Defendant had complained about the Claimants incurring excessive costs, the Claimant sought the Defendant’s consent to incur the costs of amending the claim form to seek unlimited damages.

The Defendant declined and the Claimant suggested paying an increased issue fee if the damages at trial exceeded the sum on the claim forms.

The Defendant argued that the Claimants’ conduct in continuing the claims in spite of its offer was an abuse of process and applied to have the claims struck out and the Claimant cross-applied to amend the claim forms.

The Chancery Division said that although the Defendant had offered the Claimant what their claim form suggested they wanted, the Claimants had almost immediately made it clear that they wanted more, and from that time it was “an almost wilful misreading of the situation” to suggest that the Claimants had acted abusively by proceeding with a claim when the Defendant had offered to satisfy it.

The only reason that the Claimants had not applied immediately to amend the claim forms was because it wished to save the Defendant costs.

Following the decision in

Lewis v Ward Hadaway [2015] EWHC 3503 (Ch)

it could be an abuse of process deliberately to understate the amount claimed in order to avoid paying the appropriate court fee.

However, here, there was no suggestion that this had happened.

CPR 16.3(7) protects a Claimant from the potential adverse technical consequences of “leaving a low claim figure in the claim form but getting a higher award”.

However, where a Claimant’s expectations genuinely change during the proceedings, the Claimant should not “wait and see” if it recovers more at trial, but should amend the claim form at that time and thus trigger payment of an extra issue fee.

In this case, given the Defendant’s previous complaints about costs, the Claimants’ approach was understandable, but this was not a matter to be decided between the parties with the Claimants paying extra fees if they won sufficiently at trial.

Court fees depend upon expectations, not the level of the actual award.



In Cross v Black Bull (Doncaster) Limited, Sheffield County Court, 21 December 2017,

the Circuit Judge allowed an appeal against the District Judge’s decision to strike out a case on the ground that failure to pay the correct fee was an abuse of process.

The Court of Appeal has now refused the Defendant permission to appeal against the decision of the Circuit Judge.

The Court of Appeal confirmed the Circuit Judge’s finding that it was for the applicant to establish the case of abuse of process, and not for the Claimant to disprove it.

Furthermore an allegation of abuse of process against any firm of solicitors is a serious matter which requires to be established on more than mere speculation.

Gordon Exall, in his excellent blog – Civil Litigation Brief says that he is unaware of any case at appeal level where a case has been struck out for under payment of court fees, or where an Appeal Court has upheld such a first instance striking out.



Written by kerryunderwood

June 6, 2018 at 8:36 am

Posted in Uncategorized

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