BE WARY OF THE AUTOMATIC STAY – IF YOU SERVE AND DO NOTHING

November 12, 2017 · by · in Civil Procedure

CPR 15,11(2) provides for an automatic stay. The judgment in Citicorp Trustee Company Ltd & Anor v Al-Sanea & Anor [2017] EWHC 2845 (Comm) shows that it is normally not difficult to lift that stay.  The key point is to know about the rule and that proceedings are stayed. This could be more important in cases where there is a considerable, unexplained delay,  or the application to lift the stay is opposed.

THE RULES

    1. CPR rule 15.11. Sub-paragraph (1) of that rule provides that:

“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“

THE CASE

Proceedings were  served on or soon after 20th January 2017 (calculated in accordance with CPR rule 6.14). The period for filing a defence would expire 14 days later on or soon after 3rd February 2017. Accordingly, the Claimants’ claims were stayed on or soon after 3rd August 2017.

The claimant applied to lift the stay.

THE JUDGE’S CONSIDERATION OF THE CASE LAW

Mr Peter MacDonald Eggers QC reviewed the case law.

    1. CPR rule 15.11(2) permits the Court to lift the stay. In Football Association Premier League Ltd v O’Donovan [2017] EWHC 152 (Ch); [2017] FSR 31, Chief Master Marsh said, at para. 11, in respect of this rule:
“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 … 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 six 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.”
  1. Mr Robins on behalf of the Claimants submitted that the stay should be lifted because (a) the delay in issuing the application after the stay was short, (b) the delay is reasonably explicable, (c) there would be no prejudice to the Defendants, and (d) the Claimants’ claims plainly have a good prospect of success.
  2. I have no hesitation in ordering that the stay be lifted. The delay in issuing the application after the imposition of the stay was short. Mr Robins suggested it was a delay of less than a month. The current applications were issued on 4th September 2017, one month after the stay took effect. The delay leading to the imposition of the stay, such as it was, was explained by Mr Godden in his first witness statement, at para. 87, where he stated that the interim period was taken up by the steps taken to serve the proceedings on the Defendants and to bring them to the attention of the Defendants, by consultations with the Certificateholders, who had the real economic interest in the transaction, and by taking legal advice with respect to the interaction between the English proceedings and the proceedings in the KSA.
  3. In addition, I cannot see that there is any prejudice to the Defendants. By contrast, there would be considerable prejudice to the Claimants if the stay were not lifted, especially as, as I decide below, the Claimants have valid claims against each of the Defendants.
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