The Court of Appeal has ruled that, in a Part 8 claim where a stay of proceedings was imposed after issue of the Claim Form, the stay operated to include the four-month period within which the claim form had to be served.
The decision represents further clarification of this important element of the CPR. Although a Part 8 claim, the indication is that this decision will also apply to Part 7 claims.
The claim related to an accident at work involving the Claimant in September 2013. He pursued a claim against the Defendant, his then-employer. The Defendant admitted liability, but when the parties were unable to agree quantum, a Part 8 claim form was issued.
The Claimant issued proceedings on 24 June 2016. In the absence of recent medical evidence, the Claimant also sought a stay of proceedings. The stay was granted by Order dated 7 July 2016 for initially expiring on 7 October 2016. The court further extended the stay until 30 November 2016. It is common ground that the stay expired on that date. The Claimant served the Claim Form prior to the expiry of the stay.
The Defendant argued the Claim Form had been served late because it was not served within 4 months of issue (i.e. by 24 October 2016). Deputy District Judge Davy disagreed, concluding that the stay operated in such a way as to apply to every step required by the CPR, including the obligation to serve the Claim Form. This meant the Claim Form had been served in time.
However, on hearing the Defendant's appeal, Judge Gore QC reached the opposite conclusion. As it was apparent that a further claim could not be issued, this finding was fatal to the Claimant's case.
The Claimant appealed to the Court of Appeal.
The Court of Appeal confirmed that a stay operates to freeze proceedings, and this included the time period for the service of the Claim Form.
Lord Justice Coulson found that when the stay is lifted "the parties (and the court) pick up where they left off at the time of the imposition of the stay".
The Court of Appeal found that the service of the Claim Form should not be treated differently to other procedural steps. The Civil Procedure Rules did not provide any rule and/or guidance that the service of the Claim Form justified special treatment.
If HHJ Gore's finding was upheld, then this would have introduced additional (and unnecessary) level of complexity to a stay in proceedings. This would have meant the stay was effective for some procedural steps, but not others. This would have been "contrary to the intention that the rules in this area should be straightforward."
Lord Justice Coulson added that "whilst the judge was right to say that, if a claim form is eventually not served at all then it is as if the proceedings had never happened, he was wrong to say that the proceedings "do not really have a legal life" until the service of the claim form. The issue of the claim form creates a lis (Latin for "a suit pending,") regardless of its subsequent service".
What can we learn?
- The recent decision in Barton v Wright Hassall found that it is not unreasonable to expect litigants-in-person to familiarise themselves with the appropriate rules. However, had the Court of Appeal upheld HHJ Gore's decision, this would have placed an unreasonable burden on litigants in similar circumstances.Lord Justice Coulson pointed out that had he rejected the appeal, future claims of this nature would "require the appellant to seek a stay, then to apply to lift the stay in order to serve the claim form (and then presumably to apply to re-impose the stay)."
- This is particularly relevant due to the expectation that the Civil Liability Bill alongside the proposed increase to the small claims track limits for injury claims, will result in further numbers of litigants-in-person. Stays of this nature may be required on an increasing basis, and the issue addressed in this claim will arise again.
- The line between opportunism and those parties playing 'technical games' will always be subject to interpretation, and may warrant different judicial responses. However, Lord Justice Coulson stated that in this instance, he considered that "there had been an element of opportunism [by the Defendant] which [he] would be reluctant to reward." Whilst there was no suggestion of any unconscionable behaviour of the part of the Defendant, the judgment indicates there may be growing unease about the basis of these actions, especially in light of increased number of lay claimants.