Claimant litigant in person ordered to pay £17,500 costs order on the small claims track for ‘unreasonable behaviour’ following a claim based on dishonesty and fraud.
Summary
District Judge Lumb in the County Court at Oxford awarded costs of £17,500 to Mr Boswell, the defendant, for ‘unreasonable behaviour’ by Mrs Reed, the claimant, following a small claims hearing. The court held that Mrs Reed, a criminal solicitor, did not properly plead her claim as the defendant had to infer that the claimant relied on the ‘tort of deceit.’
Background
Mrs Reed brought a County Court claim against Mr Boswell alleging that he gave a ‘favourable’ reference for a potential tenant, Mr Fernandes, without which Mrs Reed would not have taken him as a tenant. Mrs Reed claimed damages for losses suffered because of the reference. Mrs Reed asserted that Mr Boswell wanted Mr Fernandes out of his rental property due to being a troublesome tenant.
The particulars of claim did not specify a cause of action. Mr Boswell assumed the claim was based on the tort of deceit.
For the claim to succeed, the claimant had to prove six elements set out in Connolly v Bellway Homes [2007] All ER (D) 182:
Was there a statement and if so, when was the statement made?
Was that statement false?
Did the maker of the statement know that it was false or was he reckless as to its truth?
Did the maker of the statement intend for the claimant to rely on it?
Did the claimant rely on that statement?
Has the claimant suffered loss by reason of such reliance?
Disputes of fact
Mrs Reed was unable to produce sufficient evidence that the parties had a telephone conversation in which Mr Boswell gave the alleged reference. Mrs Reed's accounts of what was said were inconsistent throughout the proceedings.
A strongly disputed point of fact concerned text messages between Mr Boswell and Mrs Reed. It was Mrs Reed’s case that not only were these messages never sent but, the screen shots supplied were fraudulent. According to Mrs Reed, these messages were ‘concocted, a lie and Mr Boswell was totally dishonest about them.’
Unreasonable behaviour by the claimant
Litigants on the small claims track usually bear their own costs. In this case, Mr Boswell applied for costs under CPR 27.14(2)(g) due to ‘unreasonable behaviour’ by Mrs Reed. This application was based on Mrs Reed’s fundamentally defective claim and refusal to amend the statement of case, the unfounded allegation of fraudulent and dishonest behaviour of Mr Boswell, an allegation of collusion between Mr Boswell’s solicitor and expert witnesses, and the absence of clear evidence to support the claim.
The court's decision
The claim was dismissed, and the judge held that Mrs Reed had acted unreasonably for the purpose of CPR 27.14(2)(g). The court awarded Mr Boswell costs of £17,500.
The court held that the particulars of claim were wholly insufficient and did not specify the cause of action. Mrs Reed did not convince the judge with ‘sufficient particularity’ what representations were made by Mr Boswell. All these actions had the effect of significantly increasing the time, expense, and legal costs in this case.
Comments
This is a County Court decision and is persuasive, though not binding on other courts.
This claim was brought based on dishonesty and fraud, expert reports were commissioned, a one-and-a-half-day trial was held, and judgment was reserved, handed down eight months after the final hearing. This was not an ordinary small claim. Normally, costs on the small claims track are restricted and subject to fixed costs, set out in CPR 27.14.
This judgment is a useful reminder and warning to litigants in persons that, while the court can be more lenient, you must follow the civil procedure rules, properly plead your claim and provide the best evidence available. If not, there are cost risks even on the small claims track where a litigant's behaviour is unreasonable.