Successful Appeal Of Defendant Costs On The Small Claims Track

Overview - Mr Nahid Ahmed v Axa Corporate Solutions Assurance [2019]

The Defendant successfully appealed the 1st instance decision not to award the Defendant's costs on the small claims track following the dismissal of the Claimant's credit hire claim.

The Defendant recovered all their costs of the 1st action, and was not limited to recovering only costs occasioned by the unreasonable conduct of the Claimant.

Background

The Claimant had stated the rental agreement, for the credit hire charges, had been signed by himself, when in fact was found at the hearing that it had been signed by his wife.

The claim was dismissed and the Defendant sought their costs in accordance with CPR27.14(2)(g), where costs can be awarded on the small claims track where a party has acted unreasonably.

It was the Defendant's case that the 1st instance Judgment erred in seeking to establish that the Claimant had been fundamentally dishonest, and/or acted with malice, in making any finding of unreasonable conduct:-

A finding of fundamental dishonesty and/or malice by the Claimant was not the proper test. The proper test is found in CPR27.14(2)(g), that being one of unreasonable conduct. The Judge erred when failing to find on fundamental dishonesty because it could not be shown what communications/advice had passed between the Claimant and his Solicitors. Seeking to treat the Claimant's conduct as distinct from his instructing Solicitors, would in effect provide immunity to any represented Claimant from a finding of unreasonable conduct. The Judge similarly erred when failing to find malice as the Claimant did not have a financial interest in the claim. The entire premise of any credit hire claim is that the Claimant has a financial responsibility for the credit hire charges. If there were no financial responsibility for the credit hire charges then it must be unreasonable to bring litigation for charges the Claimant is not responsible for. The Claimant, presumably funded by the credit hire company, seemingly recognised the commercial impact of a successful appeal would have in any frivolous litigation brought for credit hire claims, and the protection afforded on the small claims track with the normal small claims track provisions. The Claimant's costs schedule for the appeal was 5 times the total value of the appeal. Even after the appeal was successful the Claimant sought for the Defendant to pay the Claimant's costs occasioned by the appeal (seemingly in an...