We have all had that feeling when dealing with civil procedure. Have I missed a deadline? Have I overlooked a rule? Have I missed an authority explaining an otherwise straightforward rule? Each year the White Book gets thicker and thicker. It is easy to despair when faced with various procedural tripwires, especially when dealing with an opponent that wants to make your procedural life as difficult as possible. The purpose of this article is to highlight a potential tripwire which is easily overlooked so that civil practitioners are aware of the issue.
What is the issue? The issue is this: What is the position if one files and/or serves a document during a stay. You may ask yourself the question “Is that it?”. You may think what’s the big deal? If you file or serve a document during a stay – then it is filed or served when you file and serve it – even if it is during a stay. If only it were that straightforward.
I will use an example to demonstrate the issue.
A claimant issues a claim and serves the Claim Form and Particulars of Claim on 1 June 2023. On the face of it, the Acknowledgment of Service would need to be filed by 15 June 2023. However, the parties agree that the claim should be stayed for 3 months (perhaps the claim needed to be issued urgently for limitation purposes and the parties want a stay to complete any relevant pre-action protocol steps, including trying to settle it, before the proceedings really get under way). So, the Court orders, on 12 June 2023, a stay until 12 September 2023. The defendant’s solicitors, wanting to protect their client’s position, and acting efficiently, provides the Acknowledgment of Service to the Court on 14 June 2023. Now remember, this would mean that the Acknowledgment of Service was provided to the Court during the stay – which started on 12 June 2023. However, in our example, the 3 month stay then does not result in a settlement. The claim will proceed. Accordingly, the stay automatically lifts, or expires, on 13 September 2023. The defendant’s solicitor thinks – no biggie – it has already filed the Acknowledgment of Service on 14 June 2023 – right? However, it may not be that straightforward.
The reason that it is not that straightforward is this: There is a risk that claimant will say that the purported filing of the Acknowledgment of Service on 14 June 2023 was ineffective, thus entitling the claimant to obtain default judgment. The claimant will say this because the Acknowledgement of Service was provided to the Court, or purportedly filed, when there was a stay in place. Let me explain.
A “stay” is defined in the Glossary to the Civil Procedure Rules as: “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 a stay is lifted”. This seems to suggest that one cannot take any step during a stay unless (1) it is a step allowed by the Rules (i.e. a rule that allows you to do something during a stay, rather than any old step allowed by the Rules) or (2) it is a step allowed by the order that granted the stay (e.g. a liberty to apply to lift the stay provision).
The Court of Appeal case of David Grant v Dawn Meats [2018] EWCA Civ 2212 is relevant. At paragraph 18 of the judgment, Coulson LJ stated the following:
“…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 were 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”
So, that Court of Appeal case appears to state:
- No steps are permitted during the period of a stay;
- Once a stay lifts or expires, the parties’ respective procedural positions are the same as they were at the moment when the stay was imposed; and
- Once a stay lifts or expires, the parties and the court pick up where they left off at the time of the imposition of the stay.
The obvious implication of the above is that any procedural steps purportedly taken during the course of a stay are ignored. This is because (1) a party is not permitted to take any steps during a stay and (2) the parties and the court pick up where they left off at the time of the imposition of the stay (thus ignoring steps taken during the stay).
Hopefully, one can now see the difficulty that the defendant in our example may have. The defendant purportedly filed the Acknowledgment of Service when the stay was in place (and so the defendant took a step it was not permitted to take). Upon the lifting of the stay, in our example, the parties and the court pick up where they left off at the imposition of the stay (and in our example, when the stay was imposed, no Acknowledgment of Service had been filed at that date).
This may be a surprising result, but it does appear to be the implication of the Dawn Meats case.
It does seem a curious outcome. If we slightly adapt the above example, the apparent injustice of such a position is apparent. The claimant serves the Claim Form and the Particulars of Claim on 1 June 2023. Again, the Acknowledgment of Service would need to be filed by 15 June 2023. Let us say, the Court makes an order, on 15 June 2023, to stay the proceedings for 3 months to 15 September 2023. The staying order is not drawn until 20 June 2023 and is not served until 22 June 2023. However, the defendant files the Acknowledgment of Service on the last day it needed to be filed i.e. 15 June 2023 (and remember the stay started on 15 June 2023, but the defendant did not receive the staying order until 22 June 2023 – but the fact remains – the Acknowledgment of Service was filed when the stay is in place). The above would mean that (1) the filing of the Acknowledgment of Service on 15 June 2023 was ineffective and (2) the defendant would have to “clockwatch” to make sure it “re-filed” the Acknowledgment of Service on the first day that the stay is lifted, otherwise it will be late. This would be a curious state of affairs and an unwarranted burden on parties. But, it does appear to be the potential position arising from the Dawn Meats case.
On Coulson LJ’s statement in the Dawn Meats case two further cases shed a bit more light.
The first case is the Court of Appeal case of Arkin v Marshall [2020] EWCA Civ 620. When referring to Coulson LJ’s above statement, the Court of Appeal in the Arkin case (at paragraph 51) stated the following:
“We agree with all that Coulson LJ said there, save that we think that it may be going too far to say that the parties to a stayed action are not permitted to take any steps at all.”
So, what does that mean? Maybe you are allowed to take a step even if there is a stay. So, maybe, in our example, the defendant will be fine having provided the Acknowledgment of Service during the stay. However, it is still not clear.
The second case is the High Court case of Clarion Housing Association Limited v Crest Nicholson Operations Limited [2023] EWHC 620 (TCC). That case was concerned with the serving of the claim form and particulars of claim on a date when a stay was in place. In that case Kerr J stated the following (at paragraphs 63 and 64) (I add my own comments in square brackets):
“In my judgment, the claim form and particulars of claim were validly served on Friday 9 December 2022 at 1749 when they were delivered to the defendant’s registered office by courier. I accept the submission that Coulson LJ did not in Grant v Dawn Meats (UK) Ltd intend to preclude service of originating process during the period of the stay. [So, it looks like service of “originating process” i.e. the claim form etc. would be valid during a stay and would be regarded as served on the date that they were actually served – though this does seem, on the face of it, to be contrary to the Dawn Meats case, but may be not be so, in light of the clarification in the Arkin case (as above). But, this statement only talks of service of originating process, not other documents.]
Deadlines that would expire during a stay are extended by the postponement of the running of time until the expiry of the stay, when time starts running again. [Nothing controversial there]
“What is “not permitted” to borrow Coulson LJ’s words, during a currency of a stay is the enforcement of compliance with procedural obligations in the proceedings, including agreed steps. A party may not apply to the court during a stay and may not during a stay complain of a missed deadline that expired during the stay. [So, what does that mean? I think it means the following: (1) A party cannot make any application of any sort (other than, say an application to lift the stay under a liberty to apply provision in the staying order) during a stay and (2) a complaining party cannot take any step, during a stay, to force compliance from the other party who the complaining party thinks has not done something it should have done e.g. a make a complaint, during the stay, regarding a failure to meet a deadline that passed before the imposition of the stay]
Nor may it complain after the stay has expired of a missed deadline that would have expired but for the stay but has not yet expired as extended by the stay [This seems uncontroversial given that deadlines that would expire during a stay are extended by the postponement of the running of time until the expiry of the stay]
The stay does not nullify any steps taken during its currency” [What does that mean? Does that mean that serving and filing a document, as per our example, will be ok?]
I have to say the position is not particularly clear.
I suspect that the law is as follows and I think the key matter is the nature of the document that is sought to be filed or served.
Firstly, one cannot make any application during a stay. The only exception to this would be an application that would be allowed for in the order staying the proceedings, such as an application pursuant to the usual liberty to apply to lift the stay provision in such an order. So, for example, if the deadline for filing an Acknowledgment of Service had passed before the imposition of a stay, and the defendant had not filed one, the claimant could not then seek to obtain default judgment by sending in a request / application for default judgment during the stay.
Secondly, one can probably file and serve other documents during a stay e.g. an Acknowledgment of Service, a witness statement, disclosure list etc. The next issue is what would be the date of service or filing of that document? The Arkin case seems to suggest it would the actual date when the document was filed or served. But that does seem contrary to the notion that the proceedings are stayed – how can the date at which a document is filed or served be a date when a stay is in place? I think there is an easier solution. If a document that one is seemingly permitted to file or serve during a stay (e.g. an Acknowledgment of Service, a witness statement etc.), is provided to the Court or the other side during a stay, then it is deemed, or treated, as having been filed or served on the date that the stay was lifted. The analogy of a dam is a good one: (1) the stay acts as a dam; (2) anything sent to the Court or the other side during the stay is treated as if it were held up against the dam; (3) once the stay is lifted – the dam is removed; and (4) the documents are then “released” and deemed filed or served upon the removal of the dam / lifting of the stay. This does seem like a sensible and common-sense solution.
In any event, in light of the foregoing, it does seem the safest course for a party is to simply file and serve documents when a stay is not in place. That way all the potential arguments about whether it was actually served / filed and the date of the same will be avoided. If filing and serving documents during a stay is ineffective, then it does seem ridiculous, and unnecessarily burdensome, that one would then have to “re-file” or “re-serve” them as soon as the stay has lifted. However, if a document (seemingly depending on its nature) is filed or served during a stay, there does appear to be scope for saying that that step is not a nullity and the document was validly filed or served. But, as just stated, the safest course is simply to file and serve when the stay is not in place. Sometimes it is best to simply step over a tripwire, even if it is unclear if the tripwire is actually there in the first place.
