Messenger December 2017

Case Comment 25
Case Comment
Mr Andrew Steele - v - PJM Valeting Limited (1) – and - Hertz (UK) Limited (2)
Application on behalf of Hertz (UK) Limited (2) to strike
out pursuant to CPR 3.4(2)(a) – namely that the statement
of case discloses no reasonable grounds for bringing
the claim
Stockport County Court – before District Judge Dignan
Shortly after filing their Defence, and prior to the parties
dealing with Directions Questionnaires, D2 filed the abovementioned
application. The solicitor’s witness statement in
support of the same contained three specific arguments.
The first subsequently fell away (prior to the application
being heard the Claimant successfully amended their Particulars
of Claim).
The second was based upon ‘common sense’ with reference
to case law (involving distinguishable facts).
The third was the most unusual, namely that:
· The QOCS provision was originally implemented to ensure
that the ‘deserving claimant’ could still gain access to
justice and protect their case;
· In D2’s solicitor’s experience an unfortunate and unintended
consequence of the reforms is the bringing of frivolous
claims; and
· This claim amounted to wasteful litigation and common
sense dictated that the claim should be struck out with
D2 then being in a position where they could enforce the resulting
costs order.
From the Claimant’s perspective, it very much seemed as
though the application was motivated by a desire to circumvent
the QOCS principle. Importantly, this latter point (the
third submission re QOCS and the ‘deserving claimant’) was
not pursued by Counsel at the hearing, and therefore the
application hung simply on the ‘common sense’ argument
and the case law. The Claimant deployed a wealth of arguments
in response to the application, and indeed succeeded
in their submissions that the application should be dismissed.
In reaching his decision the Judge concentrated on
the point that the evidence (that would be forthcoming in
due course) needed to be considered; he noted that the
case relied on by D2 was based upon a decision whereby
the evidence did not establish that the object was not reasonably
safe.
The decision on costs was particularly interesting.
The Claimant, pursuant to CPR 45.29H, would usually have
been limited to fixed recoverable costs in the sum of £250
plus VAT.
The Claimant applied under CPR 45.29J for a finding that
there were exceptional circumstances in this matter, requesting
that the Judge summarily assess costs utilising a
costs schedule that totalled £2905 plus VAT.
The Judge focussed on three main points in finding in
favour of the Claimant that exceptional circumstances applied
(noting that exceptional circumstances means consideration
of all of the circumstances) which can be
summarised as follows:
1. The hurdle of the claim needing to be ‘bound to fail’ (CPR
3.4.2) was, as found by him in his judgment, never to going
to be reached. D2 had exhibited to their application a Court
of Appeal decision that was fact-specific. It’s easy to say in
hindsight that the application shouldn’t have been made,
but it certainly shouldn’t have been when it pinned its
colours to an irrelevant case.
2. If this application had succeeded it would have meant the
claim was dismissed and QOCS would automatically be disapplied
pursuant to CPR 44.15(1)(a). D2 would have been
able to enforce an order for costs without permission from
the court. That is a “significant, a very significant, potential
outcome”. The consequences of the application were therefore
critical.
3. D2’s Counsel quite rightly didn’t refer to the third submission
as found in the in the solicitor’s witness statement in
support of the application (re QOCS and the ‘deserving
claimant’). The argument offered a critique of the QOCS provision
and made reference to policy decisions and the truthfulness
of claimants. It was a misconceived ground and
there was no basis for making that argument.
The Claimant was ultimately awarded £2,200 plus VAT in
costs, a grand total of £2640, nearly 9 times the fixed recoverable
sum.
Barrister Nyssa Cronie from Express Solicitors (In house)
Solicitor with conduct of the case Kimberley Kirkby Express
Solicitors