Time limit for serving claim form will not run during stay of proceedings

In a recent decision, the Court of Appeal held that a stay of proceedings applies to the service of the claim form in the same way that it applies to any other procedural step: Grant v Dawn Meats (UK) [2018] EWCA Civ 2212.

Accordingly, the period of a stay will not count towards the timeframe within which a claim form must be served. Once the stay has expired or been lifted, the position as between the parties will be the same as it was at the moment the stay was imposed. Time for service of the claim form will continue to run from this point.

Although this judgment is given in the context of a personal injury claim and the specific provisions of the applicable pre-action protocol, there are similar provisions in other pre-action protocols and the practice direction on pre-action conduct. These provisions allow a claimant to issue proceedings and seek a stay if it is not possible to comply with the applicable pre-action protocol before limitation expires. This decision therefore gives helpful confirmation that, where the court grants a stay, it will operate to suspend time for service of the claim form as well as other procedural steps.

In contrast, the recent High Court decision in Viner v Volkswagen Group United Kingdom Ltd [2018] EWHC 2006 (QB), considered here, highlights the potential dangers in applying to extend time to serve the claim form in the absence of a stay. The court in that case held that the proper course of action would have been to serve the claim form in time and then, if appropriate, apply for a stay of the proceedings. The present decision shows that, if the court grants a stay before service of the claim form, eg to allow compliance with a relevant pre-action protocol, time for service of the claim form will automatically be suspended.

Nick Chapman from our disputes team outlines the decision below.

Background

Mr Grant suffered an injury at work in September 2013. He intimated a claim against his employer, Dawn Meats, pursuant to the Pre-Action Protocol for Low Value Personal Injury (Employers' Liability and Public Liability) Claims (the "Protocol"). Dawn Meats admitted liability, but the parties were not able to agree quantum.

As the expiry of the limitation period approached, Mr Grant took the precautionary step of issuing proceedings on 24 June 2016 and seeking to stay the proceedings so that the parties could obtain up-to-date medical evidence. This was in accordance with paragraph 16 of Practice Direction 8B which states that, where compliance with the relevant Protocol is not possible before the expiry of a limitation period, the claimant may start proceedings and seek a stay in order to comply. In those circumstances the claimant "must send to the defendant the claim form together with the order imposing the stay".

The stay was granted on 7 July 2016 and would have expired three months later, on 7 October 2016, but it was subsequently extended until 30 November 2016.

Mr Grant served the claim form on 6 March 2017. Dawn Meats contended that it had not been served in time, arguing that the stay did not affect Mr Grant's obligation to serve the claim form within four months of its issue (ie within four months of 24 June 2016). Deputy District Judge Davy found that the claim was served in time, but his decision was overturned by HHJ Gore QC on appeal. Mr Grant appealed to the Court of Appeal.

Decision

The Court of Appeal allowed the appeal (Coulson LJ giving the lead judgment with which Hickinbottom and Haddon-Cave LJJ agreed). Coulson LJ began his analysis by considering the general effect of a stay, as set out at paragraph 3.1.8 of the White Book:

"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."

He also referred to UK Highways A55 Ltd v Hyder Consulting (UK) Ltd [2013] BLR 95 (considered here) in which the court held that a stay suspended time for service of particulars of claim, so that when the stay expired the claimant had the balance of the 14 day period in which to serve the particulars.

He noted that, in general terms, no steps in the action are required or permitted by either side during the period of a stay. Once the stay expires or is lifted, "the parties (and the court) pick up where they left off at the time of the imposition of the stay". There was no reason to treat the service of a claim form differently to any other procedural step, including because:

1. Neither the CPRs nor the Protocol say that the service of the claim form stands outside of, and is therefore unaffected by, a stay of proceedings. Indeed, paragraph 16 of Practice Direction 8B provides that a party in Mr Grant's position must start proceedings and seek a stay at the same time. While the claim form must be sent to the defendant at that time, there is no requirement to serve it.
2. There is nothing in the CPRs or the Protocol to justify a distinction between the service of the claim form, on the one hand, and any other procedural step, on the other.
3. Any other interpretation would introduce unnecessary complexity into what should be a straightforward situation. Making the stay ineffective for service of the claim form would require a claimant to seek a stay, then apply to lift the stay in order to serve the claim form, and then possibly apply for the stay to be re-imposed. This would be "unnecessarily cumbersome, and contrary to the intention that the rules in this area should be straightforward".

Finally, the court noted an "element of opportunism" on the part of Dawn Meats that it was reluctant to reward. Dawn Meats had admitted liability and the lack of a served claim form did not have any effect on the proper progress of the proceedings.

On the basis that the stay had been in operation since 7 July 2016 (which was 13 days after the proceedings had been issued), the claim form had to be served on or before 17 March 2017, ie four months, less 13 days, from the expiry of the stay on 30 November 2016. Mr Grant had complied with this requirement by serving the claim form on 6 March 2017.