New fixed recoverable costs regimes will apply to many claims issued on or after 1 October 2023. For those whose claims may be caught by the new intermediate track (for most claims up to £100,000) and the expanded fast track, issuing proceedings before October enables them to avoid being stuck with recovering very limited fixed costs should the claim succeed. For others who fail to issue before October, inflating the size (and possibly the complexity) of the claim may seem like an obvious way to escape fixed recoverable costs. This raises the question of whether claimants risk being found to have acted in abuse of process in these circumstances.
What is an abuse of process?
An abuse of process has been described as a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process. You can see from the breadth of the definition that the court has a wide discretion when it comes to deciding whether a party’s conduct amounts to an abuse.
The court can strike out a claim form and particulars of claim as an abuse of process under CPR 3.4(2)(b) and under its inherent jurisdiction. There are several grounds for doing so. These include a wholesale disregard of the rules, bringing successive related actions against the same or different defendants in breach of the rule in Henderson v Henderson, attempting to relitigate an issue that has already been determined, and deliberately delaying the prosecution of, or “warehousing”, a claim.
Putting those types of abuse to one side, we’re focusing here on other types of abuse that occur at the outset of proceedings. These include issuing to stop the limitation period running without being able to properly formulate the claim and deliberately paying an insufficient issue fee.
But before looking at these types of abuse in detail, we need to consider whether a putative party can be guilty of abusing the court’s process even before proceedings are issued.
Abuse in the pre-action protocol period
The Civil Justice Council has just published part one of its final report on pre-action protocols, known as PAPs. The report was conceived following the Court of Appeal’s decision in Jet2Holidays v Hughes in 2019. The court held that a putative party can act in contempt of court during the PAP process even though proceedings are not yet in existence and may never be issued. In that case, the claimants had acted in contempt by including false statements of truth in their witness statements.
More recently, the question of the court’s jurisdiction in relation to the pre-action period was scrutinised by the Court of Appeal in Cable v Liverpool Victoria Insurance Co Ltd. The court concluded that just as a failure to comply with a PAP can in principle give rise to a contempt of court, it can also give rise to an abuse of process.
The jurisdiction of the court to take account of pre-action conduct when managing proceedings is generally accepted. However, as the CJC points out in its report, the court only has jurisdiction over pre-action conduct where this is provided for in primary legislation. This is currently the case only where (1) there is a dispute about costs for a claim that settles pre-action or (2) where a claim is issued.
New primary legislation would be required to enable the court to make a costs order against a putative party for its pre-action conduct where proceedings are never issued.
Abuse in issuing speculative proceedings
A claimant shouldn't issue a claim form where it is in no position properly to formulate a claim against the defendant and has no present intention of prosecuting the proceedings.
Such a claim was struck out in Nomura International plc v Granada Group Ltd. Nomura had to issue against Granada to avoid a limitation defence at a point where it was unable to properly formulate its claim. This problem will tend to arise where a defendant agrees a standstill with the claimant but fails to agree a back-to-back standstill agreement with a third party. Issuing against the third party in these circumstances deprives them of a potential limitation defence and is an abuse of process.
This shouldn't be confused with the position where the claimant issues a claim before it is able to provide proper particulars. It isn't an abuse of process to issue proceedings as long as there is a genuine intention to pursue them and the claimant is actively engaged in gathering material with which to provide particulars within the four month period in CPR 7.5 (Wilson v Bayer Pharma AG).
Note also that a defectively endorsed claim form can be cured by subsequent particulars of claim, but this is only possible where the claimant has a known genuine cause of action at the time of issue. It isn't necessary to identify the legal basis for the claim, but the claimant must identify the essence of the act or omission complained of (USAF Nominee No 18 Ltd v Watkin Jones & Son Ltd).
Abuse where a claim is deliberately undervalued
It is an abuse of process to deliberately understate the value of the claim on the claim form in order to avoid paying a higher issue fee (Lewis v Ward Hadaway and Liddle v Atha & Co Solicitors). CPR 16.3 requires a claimant to state the value of the claim in the claim form, and the contents of the claim form must be verified by a statement of truth. This issue has been explored by the courts in the context of whether a claim is “brought” within the limitation period where an incorrect issue fee is paid (see the Court of Appeal decision in Buttars v Hayes).
In contrast, it isn't an abuse of process to deliberately limit the value of a claim in order to benefit from a particular costs regime or for any other reason (Khiaban v Beard). A claimant is fully entitled to decide what to include in their claim. It isn't part of the court’s function to extract the maximum court fees from a party (this has been recently reiterated in Abbott v Ministry of Defence).
Abuse where a claim is deliberately overvalued
The question which may well arise after October 2023 is whether it is an abuse of process to deliberately overvalue a claim in order to avoid a fixed costs regime. For example, is it an abuse to say a claim is for more than £100,000 when it is really worth nearer £50,000 in order to try and escape the intermediate track?
The case law would suggest that this is an abuse of process. There are good practical reasons for taking such a view, given that a deliberate over-valuation could lead to satellite litigation and waste the court’s time and resources. The fact that the claimant will be paying a larger issue fee shouldn't affect this conclusion.
The new versions of CPR 26 and the corresponding Practice Direction which come into force on 1 October 2023 retain the court’s discretion to make an order directing the claimant to justify the amount it is seeking where it believes the amount sought exceeds what they may reasonably be expected to recover (see new PD 26 para 6).
There are various ways in which a claimant could act in abuse of process in the coming months, whether by issuing in haste before the October deadline, by overvaluing a claim or by attempting to manipulate the court’s processes in some other way. But, while a defendant could apply to strike out an abusive claim, the courts are reluctant to strike out claims for abuse in this situation. It is rarely easy to prove an intention to act abusively on the part of the claimant and/or their lawyers.
Previous cases have shown that other sanctions, usually involving costs, are more likely to be adopted: striking out is the court’s last resort. Experience tells us that there will be a surge in satellite litigation of this kind following the introduction of any significant new costs regime. Regrettably, experience also tells us that it will take years for the courts to give authoritative guidance that will put the satellite litigation to bed.
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