Walayat & Ors v Berkeley Solicitors Ltd

Where a defendant brings an additional claim against a person who is not already a party, the court fee is determined by reading the relevant fee provisions with CPR Part 20. Treating an additional claim as a claim for procedural purposes does not make it a mere joinder or substitution of a party. An unlimited additional claim seeking a monetary remedy falls within paragraph 1.1 of Schedule 1 to the Civil Proceedings Fees Order 2008, and attracts the £10,000 fee. Paragraph 1.6 is directed to adding or substituting parties without introducing the substantial new issues ordinarily involved in an additional claim.

The defendant solicitors’ firm brought additional claims against a former director, another solicitors’ firm and its director. The claims were against persons who were not already parties and sought remedies other than contribution or indemnity. The additional claims were issued as unlimited claims and a fee of £55 was paid.

On an application concerning jurisdiction and abuse of process, the court rejected the argument that payment of the wrong fee constituted an abuse. The judge reserved the separate question of the correct fee. The issue was whether the claims constituted starting proceedings under paragraph 1.1 of Schedule 1 to the Civil Proceedings Fees Order 2008, or filing proceedings against parties not named in the proceedings under paragraph 1.6.

1. Declaration and order. The correct fee for the unlimited additional claims was £10,000 under paragraph 1.1 of Schedule 1 to the Civil Proceedings Fees Order 2008. The defendant was required to pay the outstanding balance as a condition of continuing to pursue the claims.
2. The conflicting views of HMCTS staff did not determine the issue. Neither the statement in the EX50 guidance nor the court office’s CE-filing fee was binding, and the judge declined to be influenced by opinions whose genesis was unknown [16].
3. The governing task was statutory interpretation: to identify the legal meaning of the 2008 Order which conveyed the legislative intention [17]. The absence of a requirement to state value for an additional claim did not determine the fee. CPR 16.3(5) concerned proper issue in the High Court, not calculation of the fee, as shown by its relationship with CPR Practice Direction 7B and the poor fit between statements of value and the fee scale [18].
4. Under CPR 20.2(1)(b) and CPR 20.3(1), the claims were additional claims governed by Part 20 and treated as claims for the purposes of the CPR, subject to Part 20. A counterclaim against an existing party was expressly dealt with by paragraph 1.7 at the fee applicable to equivalent separate proceedings. It would be anomalous for an additional claim against a new party to attract a different fee [19].
5. Paragraph 1.6 was construed as addressing joinder or substitution without introducing new causes of action or substantial new claims, such as replacing a party after death, adding a party said to be liable in the same way as an existing party, or correcting the identity of a party. Those circumstances justify a lower fee because the issues are narrow and technical. An additional claim ordinarily raises new issues and is materially different [20]-[21].

The court therefore declared that the £10,000 fee was payable. Costs and other consequential matters had been dealt with at the earlier hearing [22]-[23].

First-instance determination of the correct court fee. The judgment records that jurisdiction and abuse-of-process arguments had previously been rejected in an oral judgment delivered on 2 February 2021; this judgment determined the reserved fee issue.