[2018] EWCA Civ 2212

 

In this case, limitation arose before the parties had been able to complete all the steps of Stage 1 and Stage 2 in the Portal. In accordance with para 5.7 of the EL/PL Protocol, the Claimant issued stage 3 and the proceedings were stayed. During the period of the stay, the Claimant did not serve the claimant form on the Defendant. The Defendant argued that the failure to serve the claim form within 4 months meant that the claim lapsed and there were no proceedings.

 

At first instance the Claimant won, however the defendant appealed and HHJ Gore QC reversed that decision, finding that the stay did not operate to stay the time within which the claimant must serve the proceedings.

 

Permission to appeal to the Court of Appeal was given by LJ Hamblen.

 

The Court of Appeal considered that a stay 'halts' or 'freezes' proceedings. No steps are required or even permitted during a stay. When a stay is lifted, the position is exactly as it was between the parties the moment the stay was imposed.

 

The Court of Appeal also noted that para 16 of PD 8B requires the claimant to 'send' the defendant the claim form, rather than 'serve' it. There was no justification in the argument that the claim form stood outside the rules, there was no distinction in the CPRs between the service of a claim form and any other procedural step.

 

Also the interpretation of the CPRs could be 'sense-tested' by noting that if there were a requirement to serve the claim form within 4 months despite a stay, then that would require the appellant to seek a stay, then apply to lift the say in order to serve the claim form, then presumably 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.

 

 

This is an interesting judgment on the issue of limitation and the Portal. It does not appear that the Court of Appeal were directed to the decision in Patel v Fortis which dealt specifically with service in the Portal. Indeed it is also clear that the Court of Appeal were labouring under the mis-apprehension that there was a requirement to serve a Portal claim form within 4 months, which does not appear anywhere in the Portal Protocol or PD 8B. However, it does give welcome clarity on the position once a claim is issued and the status of a stay.

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