FUNDAMENTAL DISHONESTY – YOU HAVE BEEN WARNED (HOPEFULLY)
I recently represented a claimant at trial in relation to a personal injury claim arising out of a road traffic accident.The def...
In Grant v Dawn Meats (UK)  EWCA Civ 2212, the Court of Appeal held that an order staying the matter also stayed the Claimant’s obligation to serve the claim form.
That being the case, the Claimant was not out of time for serving the claim form when he did so within the four month period following the expiry of the stay.
The Claimant brought a claim for personal injury, arising out of an accident at work on 30th September 2013. Liability was admitted and the claim proceeded under the Pre-Action Protocol for Low Value Personal Injury (Employer’s Liability and Public Liability) Claims (“the Protocol”).
With the claim nearing the three year limitation date, the Claimant’s medical evidence was incomplete. Accordingly, the Claimant issued a claim form and applied for a stay of proceedings, pursuant to paragraphs 1.1 (3) and 16 of Practice Direction 8B.
Various stays were granted, the last of which expired on 30th November 2016. The Claimant served the claim form on 6th March 2017. The Defendant sought a declaration that the claim form had not been served in time, arguing that the stay imposed by the court did not affect the Claimant’s obligation to serve the claim form within four months of its issue.
The Lower Courts
At first instance, 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 that basis, the claim form had been served in time.
The Defendant’s appeal was allowed, the Circuit Judge having reached the opposite conclusion. The Claimant appealed to the Court of Appeal.
The Court of Appeal Judgment
The Court of Appeal noted the following with regard to the rules and authorities on stays and service generally:
9. 3.2 Stays Generally
10. The Glossary to the CPR provides that "a stay imposes a halt on proceedings, apart from taking any steps allowed by the Rules or the terms of the stay. Proceedings can be continued if the stay is lifted". This definition is further expanded at paragraph 3.1.8 of the 2018 White Book in these terms:
"The making of a stay imposes a halt, not only upon proceedings, but also upon the expiration of any time limit in those proceedings which have not expired when the stay was imposed."
11. In UK Highways A55 Limited v Hyder Consulting (UK) Limited  BLR 95, the particulars of claim were not served during the prescribed 14 day period following the service of the claim form. However, during that period the parties had agreed a stay of proceedings. When the stay expired, the defendant said that the proceedings had come to an end because no particulars of claim had been served in accordance with the CPR. Edwards-Stuart J disagreed, ruling that the claimant had the balance of the 14 days following the expiry of the stay in which to serve the particulars of claim. He said of this outcome at :
"It seems to me that this submission avoids the impossibility problem raised by Mr White and has the sensible result that the proceedings can resume where they left off without any party having to go to the trouble and expense of making an application to the Court in order to enable that to happen. There is nothing in the rules which provides that, once stayed, no further step need be taken in the proceedings unless there has been an order of the court, even if the stay has been lifted automatically (because it expired on a particular date or the happening of a particular event)."
3.3 Service Generally
12. CPR 7.5(1) provides for different methods of service but requires such service to be completed "before 12 midnight on the calendar day four months after the date of issue of the claim form".
13. CPR 7.6 deals with extensions of time for serving a claim form. It provides as follows:
"7.6 (1) The claimant may apply for an order extending the period for compliance with rule 7.5.
(2) The general rule is that an application to extend the time for compliance with rule 7.5 must be made –
(a) within the period specified by rule 7.5; or
(b) where an order has been made under this rule, within the period for service specified by that order.
(3) If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if –
(a) the court has failed to serve the claim form; or
(b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and
(c) in either case, the claimant has acted promptly in making the application…"
14. There are a number of authorities dealing with these rules, including Vinos v Marks and Spencer PLC  EWCA Civ 1415,  3 All ER 784 (CA); and, more recently, Barton v Wright Hassall LLP  UKSC 12,  1 WLR 1119. In the latter case, a claimant acting in person purported to serve a claim form and particulars of claim by email in circumstances where prior permission for such form of service had not been given. The claim form expired unserved and the claim became statute-barred. When dealing with CPR r.6.15 (service of a claim form by an alternative method) and the court's exercise of its discretion under that rule, Lord Sumption JSC said:
"…CPR rule 6.15 is rather different. It is directed specifically to the rules governing service of a claim form. They give rise to special considerations which do not necessarily apply to other formal documents or to other rules or orders of the court. The main difference is that the disciplinary factor is less important. The rules governing service of a claim form do not impose duties, in the sense in which, say, the rules governing the time for the service of evidence, impose a duty. They are simply conditions on which the court will take cognisance of the matter at all. Although the court may dispense with service altogether or make interlocutory orders before it has happened if necessary, as a general rule service of originating process is the act by which the defendant is subjected to the court's jurisdiction."
Before going on to find:
17. 5. Analysis
18. As the various citations at paragraphs 10 and 11 above make plain, a stay operates to 'halt' or 'freeze' the proceedings. In general terms, 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.
19. In the present case, the stay expired on 30 November 2016, when it was not renewed. The stay (or more properly the original stay and its extension) had been in operation since 7 July 2017, 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 4 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.
20. That conventional analysis would be wrong only if there was a reason to treat the service of the claim form as different to any other procedural step, such as the service of, say, the particulars of claim. That was indeed Mr Arentsen's basic submission: he said that the service of the claim form "stands alone", and so was required in any event, regardless of the stay imposed by the court. At the close of his oral submissions, he summarised his case by contending that, until the proceedings were served, "there was nothing to stay".
21. For a variety of reasons, I do not accept those submissions: I consider them to be contrary to the CPR, and also to lead to consequences which the rules cannot conceivably have intended.
22. First, the rules do not say that the service of the claim form stands outside – and is therefore unaffected by – a stay of proceedings. Paragraph 16 of PD 8B is expressly premised on the basis that a party in the position of this appellant must start proceedings (by issuing the claim form), and at the same time, seek a stay of those proceedings. There is no mention of any requirement to serve the claim form in those circumstances. On the contrary, paragraph 16.2 of PD 8B requires the sending of the claim form to the defendant, rather than its service. If Mr Arentsen were correct, there would be no reasons for the rule to require "sending" rather than "service"; because the stay would bite when service was effected. More generally, paragraph 16 would have to be completely reworded if Mr Arentsen was right and the claim form had to be served before any stay could be imposed or come into effect.
23. Secondly, in the context of a stay of proceedings, I can see 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 is no basis for saying, as the judge did, that Edwards-Stuart J's explanation in UK Highways as to the effect of a stay was not equally applicable to the service of a claim form. The CPR does not make any such distinction. The explanation in UK Highways is therefore equally applicable to the present case.
24. I do not consider that r.7.5 is relevant to the issue on this appeal. The appellant did not seek to extend time for service of the claim form under that rule, and if I am right about the effect of the stay, he had no need to do so. The authorities referred to at paragraph 15 above are therefore nothing to the point. To the extent that it is suggested that the provisions of r.7.5 meant that a stay could not have the effect contended for by the appellant, because only an application under r.7.5 could give the appellant the relief sought, I reject it: there is nothing about r.7.5 which prevents a court-imposed stay from affecting the time limit for the service of the claim form in the usual way. Any other conclusion would be contrary to the plain words of paragraph 16 of PD 8B.
25. Moreover, I do not accept Mr Arentsen's submission that the passage from the judgment of Lord Sumption in Barton, referred to at paragraph 15 above, somehow elevates the service of the claim form into a step in the proceedings which has to be taken regardless of any stay, or which dictates when the stay comes into force. Lord Sumption 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.
26. Thirdly, I consider that my interpretation of the CPR can be sense-tested in this way. Any other interpretation 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. Indeed, as the judge himself noted at , such an interpretation 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). Such a procedure would be unnecessarily cumbersome, and contrary to the intention that the rules in this area should be straightforward.
27. On a related topic, I should add 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, 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.
28. Finally, it is right to note that, in the present case, there has been an element of opportunism on the part of the respondent which I would be reluctant to reward. The absence of a served claim form did not in fact make any difference to the progress of this case. Liability was always admitted. The court ordered a defence by the 17th of February and the defendant filed and served a defence and counterclaim in accordance with that order. The absence of the claim form did not have any effect on the proper progress of these proceedings. On the other hand, if Mr Arentsen were right, then, having conceded liability, the respondent would not be liable to the appellant for any damages.
29. In a similar vein, although Mr Arentsen sought in his oral submissions to rely on the fact that the appellant had not sent the claim form in accordance with paragraph 16.2 of PD 8B, that was not a point taken before the judge, and therefore not a point that can now arise on this appeal. In any event, it could not bear upon the issue of whether, as a matter of construction of the rules, a stay applies to the service of the claim form.
30. For all those reasons, therefore, I would allow the appeal against the decision of Judge Gore QC. Subject to submissions on the form of the order, I would reinstate the decision of Deputy District Judge Davy dismissing the respondent's application dated 17 March 2017 for the claim to be struck out for non-service of the claim form; and declare the claim form to have been served in time. The claim form was served within 4 months of its issue, once proper allowance is made for the full period of the stay imposed by the court.
With the current version of the Protocol now having been in place for some five years or so, the situation of a claimant having to issue and stay proceedings due to limitation is becoming more and more common. The judgment provides welcome clarity in relation to service.
It is also worth noting the comments of Haddon-Cave LJ at paragraph 28 of the judgment, reinforcing the general reluctance of the court (as seen in, for example, cases where relief from sanctions is sought) to reward opportunism on the part of a party when an alleged “breach” has made little or no difference to the conduct of the litigation.
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