FOOTBALL ASSOCIATION ALLOWED EXTRA TIME: CPR 15.11 CONSIDERED: NOT AN ESPECIALLY HEAVY BURDEN

There are going to be two posts  about the judgment of Master Marsh in The Football Association Premier League Limited -v- O’Donovan [2017] EWHC 152 (Ch). Here we look at the decision in relation to CPR 15.11. (The second post will deal with the question of amendment).

KEY POINTS

  • A party applying to lift the automatic stay imposed by CPR 15.11 did not face an exceptionally high burden in persuading the court that they stay should be lifted.
  • In the current case there was a reasonable explanation for the delay and the stay was lifted.

CPR 15.11

CPR 15.11 provides for an automatic stay when no defence has been filed and the claimant has not applied for judgment.

(1) Where –

(a) at least 6 months have expired since the end of the period for filing a defence specified in rule 15.4;

(b) no defendant has served or filed an admission or filed a defence or counterclaim; and

(c) the claimant has not entered or applied for judgment under Part 12 (default judgment), or Part 24 (summary judgment),

the claim shall be stayed.

(2) Where a claim is stayed) under this rule any party may apply for the stay to be lifted.

THE CURRENT CASE

The claim was served on the 16th May 2016.  It was an action against the first defendant alleging that live football matches shown in a pub breached the claimant’s copyright. The defendant stated he had filed  a defence but no defence was served.  The claimant did nothing but did apply to amend the claim.  Six months had elapsed and the claimant required permission to lift the stay.

THE JUDGMENT ON CPR. 15.11
  1. The effect of CPR 15.11 is that the claim became stayed on 27 December 2016 because 6 months had passed following the end of the period for serving a defence. Even though this date fell after the application for permission to amend was issued the claimant rightly sought the court’s approval to the stay being lifted.
  2. The purpose served by CPR 15.11 is not immediately obvious other than, perhaps, it encourages claimants to make a decision about what steps to take to pursue a claim and renders inactive claims that might otherwise lie merely somnolent on the court file. It might also, perhaps more in theory than in reality, provide comfort to a defendant that no further action in the claim can be taken save with the court’s permission However, it seems to me that the rule is not intended to place an especially heavy burden on the claimant to discharge before the court will agree to the stay being lifted. In the usual way, the court must weigh the competing interests of the parties in the balance. Here, there is an adequate explanation of the delay and the claimant has a claim with real prospects of success. These two factors are closely linked because the claimant wishes to amend its claim to bring it into line with changes that have occurred since the claim was issued. The delay has been largely caused by steps being taken to give effect to those changes. So far as the merits are concerned, having already dealt with a considerable number of similar claims, I am aware that most other similar claims have not been contested. In any event, the amended claim demonstrates a claim based upon reasonable grounds. Added to that, there has been an almost complete lack of engagement by the first defendant and part of the delay has been caused by the defendant himself. On the other side of the balance, there is no obvious prejudice to the defendant caused by the delay of 6 months and I note that steps were taken to revive the claim within that period. In all the circumstances I am satisfied that it is appropriate to lift the stay.”