Should I stay or should I go?

Grant v Dawn Meats (UK) [16.10.2018]

This case review was co-authored by Marta Bozek, Litigation Assistant, London.

The Court of Appeal has ruled that where a stay is imposed after the issue of a claim form but before service, the stay applies to all procedural steps, including the obligation to serve the claim form.

Background

On 30 September 2013, the appellant, employed by the respondent, suffered an accident at work. Shortly after, he initiated a claim under the Pre-Action Protocol for Low Value Personal Injury (Employers Liability and Public Liability) Claims (the Protocol).

The respondent admitted liability but settlement could not be agreed before the end of the limitation period. Due to limitation concerns, the appellant issued proceedings under Part 8 of the Civil Procedure Rules (CPR) on 24 June 2016. The appellant was granted a stay of proceedings until 30 November 2016.

On 14 February 2017, the respondent filed their defence and counterclaim ‘without prejudice’ to their argument that the claim form should have been served within four months of the claim form being issued - by 24 October 2016. The respondent raised this argument again at a case management conference on 2 March 2017. The claim form was finally served on 6 March 2017. The respondent then applied for a declaration that the claim form had not been served in time, arguing that the stay did not affect the obligation to serve the claim form within four months of its issue.

At first instance, the judge concluded that the stay applied to every step of the proceedings, including the obligation to serve the claim form, thus the claim form was served in time, although on appeal to the High Court, the opposite conclusion was reached.

Decision

The Court of Appeal agreed with the judge at first instance and confirmed that the stay operates to freeze all elements of proceedings. The CPR makes no mention of the service of the claim form justifying special treatment and to do so would have been:

contrary to the intention that the rules in this area should be straightforward.

Whilst the Court of Appeal did not suggest unconscionable behaviour on the part of the defendant, they did consider there had been an element of opportunism, which they would not want to reward.

Comment

Whilst the decision provides clarity as to the meaning of a stay on proceedings, it benefits claimant solicitors who take a lackadaisical approach to their clients’ claims, by affording them additional time and unnecessarily dragging out a case disproportionately once limitation is reached. The effect of this for insurers will result in holding reserves for longer.

There is also clarity that there are no procedural steps to be taken following a claimant issuing Part 8 proceedings in Stage 3 of the Protocol and immediately obtaining a stay. In some cases, this may provide insurers with a further opportunity to settle the claim before the end of the stay and thus avoid incurring the cost of instructing a solicitor.

This case review was co-authored by Marta Bozek, Litigation Assistant, London.

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