The High Court has decided not to strike out a claim where an incorrect fee was paid days before the limitation period ended. 

The defendant in Atha & Co Solicitors v Liddle alleged that the claimant’s solicitor paid the wrong fee upon presentation of the claim form – an error that amounted to an abuse of process. 

The claim, against north-east firm Atha & Co, was received by the court two days before the limitation period was due to expire, and issued a week after the limitation date. If the court decided the claim was not brought correctly on the earlier date, the law firm would have a complete defence to the claim. 

The court heard that the claimant had paid a court fee of £1,250 based on expected damages of more than £10,000 and not more than £25,000. But when the defendant offered to settle for £25,000, this was refused. 

The defendant asserted this conduct amounted to an abuse of the process of the court, the consequence of which was that the claim had not been brought on the date the ‘tainted’ claim was received by the court. In effect, they argued, the wrong fee payment postponed the correct receipt of the claim form and the limitation period should apply. 

At first instance, His Honour Judge Gargan concluded from all the materials before him that the statement of value did not amount to an abuse of process. 

Mr Justice Turner concluded that, despite what he described as the claimant’s solicitor’s abuse of the process of the court, the claim was brought for limitation purposes at the time the claim form was received by the court and not when it was later issued. 

He accepted that some might argue that a party guilty of abuse should not receive favour, and he stressed the court retained the power to strike out a claim where abuse is ‘sufficiently egregious’. 

But the judge added: ‘Where, as here, the abuse falls very short of such a level and has no impact on the timing of the issue of the claim then it may be thought that it would be wrong in principle to permit the provisions of the 1980 [Limitation] Act to be deployed as a tool of retrospective and disproportionately draconian discipline.’ 

Mr Justice Turner dismissed the defendant’s appeal, but added as a postcript that the proliferation of first-instance decisions in recent years about limitation periods was such that authoritative guidance from the Court of Appeal is now needed.