UK: Time Limit For Serving Claim Form Will Not Run During Stay Of Proceedings

Last Updated: 9 November 2018
Article by Nick Chapman

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions