Civil procedure

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Masood Ahmed

Does a stay of proceedings imposed by the court apply to the service of the claim form, as well as to any other procedural step that would otherwise have been required to be taken during the period of the stay? Lord Justice Coulson considered the question of a stay and its impact on service of a claim form in the recent case of David Grant v Dawn Meats (UK) [2018] EWCA Civ 2212, a claim which was subject to the Pre-Action Protocol for Low Value Personal Injury (Employer’s Liability and Public Liability) Claims (the protocol). 

The rules and the nature of stays

Under the protocol, where the parties have agreed liability but are unable to agree the amount of damages at the end of Stage 2, the CPR provides that the remaining quantum-only proceedings will be issued under Part 8 (known as the Stage 3 procedure) and it is governed by Practice Direction 8B. PD 8D 1.1(3) states that the Stage 3 procedure applies where ‘compliance with the relevant protocol is not possible before the expiry of a limitation period and proceedings are started in accordance with paragraph 16 of this practice direction’. The detailed provisions are set out at paragraph 16 of PD 8B which requires, inter alia, the claimant to state on the claim form that a stay is required in order to comply with the protocol. 

David Grant: facts and lower court decisions

The claimant was employed by the defendant and suffered an accident at work. The claimant intimated a claim under the protocol and the respondent admitted liability. However, the parties were unable to reach a settlement during the primary limitation period, and the defendant indicated that it had a counterclaim. As a result of limitation concerns, the claimant issued proceedings on 24 June 2016. The claim form also sought a stay of proceedings in order to obtain a medical report. The stay was granted and extended until 30 November 2016 when the limitation expired. A defence was filed ‘without prejudice’ to the defendant’s arguments that the claim form should have been served within the four-month period under CPR 7.5(1). Following service of the claim form on 6 March 2017, the defendant applied for a declaration that it had not been served in time, arguing that the stay imposed by the court did not affect the appellant’s obligation to serve the claim form within four months of its issue. The deputy district judge concluded that the stay operated in such a way as to apply to every step otherwise required by the CPR, including the obligation to serve the claim form. On this basis, she determined that the claim form had been served in time. On the defendant’s appeal, Judge Gore QC reached the opposite conclusion.

Court of Appeal decision

Coulson LJ observed the effect of a stay was to place a ‘freeze’ on proceedings which meant that no steps in the action, by either side, are required or permitted during the period of the stay. When the stay is lifted, or the stay expires, the position as between the parties should be the same as it was at the moment that the stay was imposed. The parties (and the court) pick up where they left off at the time of the imposition of the stay. On this basis, the claim had been served on time. The stay expired on 30 November 2016, when it was not renewed. The stay had been in operation since 7 July 2016, which was 13 days after the proceedings had been issued. Thus, on an application of the usual principles relating to a stay, the appellant had four months (less 13 days) from 30 November 2016 in which to serve the claim form, which meant that, to be in time, service had to be effected on or before 17 March 2017. On this basis, since the claim form was served on 6 March 2017, the claim form was served in time.

The defendant’s argument that service of the claim form ‘stood alone’ and therefore was not part of the stay, was dismissed by Coulson LJ because: 

1. The rules do not say that the service of the claim form stands outside – and is therefore unaffected by a stay of proceedings; 

2. There was nothing in the rules to justify distinguishing between the service of the claim form on the one hand and any other procedural step, such as the service of the particulars of claim, on the other. There was no such distinction within the CPR; 

3. R.7.5 is not relevant to the issue on this appeal. The claimant did not seek to extend time for service of the claim form under that rule;

4. Lord Sumption in Barton v Wright Hassall LLP [2018] UKSC 12 was not addressing the question of a stay at all, but was instead dealing with the entirely separate question of the importance of formality in bringing the fact of the claim to the attention of the defendant;

5. Any other interpretation contrary to that of the Court of Appeal in the present case would make the stay effective for some things (such as service of the particulars of claim), but not for others (such as service of the claim form). That would introduce an unnecessary level of complexity into what should be a straightforward situation.

The judge was wrong to say that the proceedings ‘do not really have a legal life’ until the service of the claim form. Coulson LJ explained that: ‘The issue of the claim form creates a lis, regardless of its subsequent service. Moreover, the judge’s acceptance, even if he was right, of the need for the appellant to apply to lift the stay in order to serve the claim form, was itself an acknowledgement that the proceedings do “have a legal life” prior to the service of the claim form.’ 

Coulson LJ’s judgment is to be welcomed. It helpfully clarifies the nature and effect of a stay on proceedings. As his lordship explained, the effect of a stay is to place a freeze on the obligations to take procedural steps; when the stay expires, the parties and the court simply resume where they left off, including the need to serve claim forms. 

Masood Ahmed is associate professor at the University of Leicester, a member of the Civil Procedure Rule Committee and White Book commentator (@ahmedCivJustice)