In Grant v Dawn Meats, the Court of Appeal had to decide if a court imposed stay of proceedings applied to the service of the claim form, as well as procedural steps required to be taken during the stay.
The appellant was employed by the respondent.
On 30 September 2013, the appellant suffered an accident at work. He then pursued a claim under the Pre-Action Protocol for Low value Personal Injury (Employers’ Liability & Public Liability) Claims (the Protocol). The respondent admitted liability but asserted a counterclaim for money pursuant to the appellant’s contract of employment. Settlement was not reached during the limitation period.
Where parties are unable to agree quantum under the Protocol, a Part 8 claim can be issued. Due to limitation concerns, the appellant issued his claim on 24 June 2016. The claim form, issued on that date, also crucially and within the rules, sought a stay.
By order dated 7 July 2016, a stay was granted for three months, so expiring on 7 October 2016.
On 5 October 2016, at the appellant’s request, the court extended the stay until 30 November 2016. There was no dispute that the stay expired on that date.
On 17 January 2017, the respondent was ordered to file a defence by 17 February 2017. A defence and counterclaim was served on 14 February 2017, but “without prejudice” to the respondent’s argument that a claim form should have been served within the four-month period set out at CPR 7.5(1) but had not been. This issue was live at a case management conference on 2 March 2017. The claim form was served on 6 March 2017.
The respondent applied for a declaration that the claim form had not been served in time, arguing that the court-imposed stay did not alter the appellant’s obligation to serve the claim form within four months of its issue.
On 19 April 2017 at first instance, the deputy district judge (DDJ) held that the stay operated in such a way as to apply to every step otherwise required by the CPR, including the requirement to serve the claim form. So the DDJ determined that the claim form had been served in time.
On 11 August 2017, the circuit judge (CJ) heard the respondent’s appeal and reached the opposite conclusion to the DDJ. The CJ held that despite the stay, the claim form should have been served within four months after issue but was not. This was key, because it was agreed that any new claim would (pursuant to section 33 of the Limitation Act 1980) now be statute-barred. The CJ’s judgment was before the Court of Appeal.
The Protocol provides that a Part 8 claim can be issued where the parties are unable to agree quantum. PD 8B.16 deals with limitation and provides:
16.1 Where compliance with the relevant Protocol is not possible before the expiry of a limitation period the claimant may start proceedings in accordance with paragraph 16.2.
16.2 The claimant must –
(1) start proceedings under this Practice Direction; and
(2) state on the claim form that –
(a) the claim is for damages; and
(b) a stay of proceedings is sought in order to comply with the relevant Protocol.
Paragraph 5.7 of the Protocol also provides that parties can apply for a stay when necessary to allow them time to take the steps required.
The leading judgment was given by Coulson LJ. He considered the above provisions and even referred to the definition of a stay in the CPR glossary to help identify the purpose of a stay.
Coulson LJ held that a stay quite simply halted/froze proceedings and that parties were not required or permitted to take any steps during the period of the stay. He also said that when the stay expired or was lifted by application the parties should carry on with the case at the time the stay was imposed. Coulson LJ further held that this analysis had to apply to the service of claim forms as to any other step in the proceedings.
Coulson LJ examined and found that the requirements of PD 8B.16 were clear and applied to the appellant’s case, and that the appellant had started proceedings by issuing a claim form and properly sought a stay. There was no mention of the need to serve the claim form in those circumstances. If the position was as found by the CJ, then Coulson LJ considered that PD 8B would have to be amended and the steps needed to be taken to effect a stay would be onerous.
Coulson LJ referred to the respondent’s opportunism by trying to take advantage of procedural uncertainty, notwithstanding the respondent’s earlier admission of liability of which Coulson LJ was mindful. He commented that there should be no reward for such opportunism.
Court of Appeal decision
The court concluded that the claim was not statute-barred. A stay had been imposed on 7 July 2016, 13 days after the claim was issued. The stay was lifted on 30 November 2016. The appellant therefore had four months, less 13 days, from that date to serve the claim form. An appeal allowed. So, therefore, a court imposed stay of proceedings does apply to the service of the claim form, as well as procedural steps required to be taken during the stay.
Practical implications for practitioners
Claimants should be diarising of limitation and when issuing this type of claim they should include an application for a stay.
Defendants on costs: opportunism is not rewarded.
For both parties, once a stay has been ordered, carefully diarise when the stay expires as you will have to pick up from where you left off.
The case offers reassurance to claimants/their lawyers that when limitation is close to expiring, a claim can be protected by issuing the claim and seeking a stay so the relevant pre-action protocols are followed. The decision also provides clarity about stays generally.