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Key Point

Unreasonable to leave portal for technical non-compliance only

Smith v Owen

Birkenhead CC, DJ Campbell, 30th November 2016

Here the claimant removed the claim from the MOJ RTA Portal for of two disbursements, one for photographs and one for the DVLA disbursements. The issue was whether the Claimant had acted unreasonably in doing so.

The disbursement for photographs was not agreed. The Defendant said as much and it was virtually common ground that in disputing the disbursement, saying why it was in dispute, then the Defendant was not in breach by failing to pay that.  The main argument was on the non-payment of the DVLA disbursement, a mere £2.50.  The Claimant relied on the case of Chisanga which had held it was reasonable to leave the Portal for non-payment of the DVLA disbursement.

However, DJ Campbell disagreed, noting she had been a solicitor for 20 years and would have been appalled at the idea of anyone in her firm issuing proceedings simply because of a non payment of £2.50 which it was well known would easily be 'scooped up' to be paid when the final order was made.

The court decided at [47] that whilst there was no obligation under the rules for a Claimant to check with a Defendant why the £2.50 had not been paid, it was incumbent on any solicitor acting reasonably to have queried where the £2.50 was. She confirmed the approach of DJ Peake in Kilby v Brown to act reasonably and enquire before issuing.  Whilst she acknowledged this made her decision at odds with another judge at the same court, she reached this decision based on her interpretation of the rules and meant no criticism on the other judge.  The Claimant had acted unreasonably in leaving the Portal, and would be restricted to Portal costs.

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