Ben Zurawel succeeds in Court of Appeal

17 Oct, 2018

In a judgment handed down on 16th October 2018, the Court of Appeal (Hickinbottom, Coulson and Haddon-Cave LJJ) confirmed that a stay of proceedings applies 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.

In David Grant v Dawn Meats (UK) [2018] EWCA Civ 2212, the claimant brought a low value personal injury claim against his employer. Liability was admitted, but a potential counterclaim prevented settlement and it became necessary to issue protective proceedings because of limitation, despite there being no up-to-date medical evidence. In accordance with paragraph 16 of Practice Direction 8B, the claimant sought and was granted a stay to obtain such evidence. The claimant obtained medical evidence and in due course, after the stay had expired, served the claim form. The defendant then applied to strike the claim out for failure to serve the claim form within the 4 month period set out in CPR r.7.5(1).

The claim was issued on 24th June 2016 and stayed on 7th July 2016 for 3 months. On 5th October 2016 the stay was extended to 30th November 2016. The claim form was served on 6th March 2017. It was common ground that this was more than 4 months after issue, but was in time if the period for serving the claim form did not run during the period during which the claim was stayed (which would mean service had to be effected on or before 17th March 2017).

Deputy District Judge Davy held on 19th April 2017 that the stay operated in such a way as to suspend the obligation to serve the claim form, but the defendant appealed. On 11th August 2017, His Honour Judge Gore QC allowed the appeal, reaching the opposite conclusion, and declared that the proceedings had not been served within the period prescribed by CPR r.7.5(2). On 29th January 2018 Hamblen LJ gave the claimant permission for this second appeal on the basis that it raised an important point of principle or practice.

Giving the decision of the court, Lord Justice Coulson held [18] that '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 is 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.'

The Court of Appeal went on to hold [22] that the CPR 'do not say that the service of the claim form stands outside - and is therefore unaffected by - a stay of proceedings', that [23] there is 'nothing in the rules to justify distinguishing between the service of the claim on the one hand and any other procedural step, such as the service of the particulars of claim, on the other' and [25] that '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, he considered [26], 'would introduce an unnecessary level of complexity into what should be a straightforward situation.'

The Court of Appeal also confirmed [27] that it is the issuing of the claim form and not its service that gives proceedings 'a legal life'. Issuing a claim form creates a 'lis' - i.e. proceedings with which the court is seised - and to serve the claim form is to take a step within those proceedings.

Noting 'an element of opportunism' on the part of the Defendant, the Court of Appeal allowed the appeal, declared the claim form to have been served in time, and awarded the claimant his costs of both appeals.

Ben Zurawel was instructed for the successful Claimant / Appellant by Kibria Ahmed of AMV Law.

The full judgment can be found here


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