#10331 - Discontinuance Stays And Orders - BPC Civil Litigation

STAYS

• general power

  • court may stay:

    • whole OR part

    • of proceedings OR judgment

    • generally OR until specified time / date (r3.1(2)(f))

  • = part of court's case management powers

  • can stay of own motion of an application of any person, regardless of whether a party (SCA 1981 s49(3))

• effect of stay

  • proceedings remain alive BUT only step that can be taken is application to lift stay

  • stayed judgment CANNOT be enforced until stay lifted

Stay on failure to file defence

• claim stayed if:

1. at least 6 months expired since expiry of time for filing defence (14 / 28 days if AoS); AND

2. no D has:

   1. served or filed an admission; OR

   2. filed a defence / counterclaim; AND

3. C has NOT entered or applied for DefJ / SJ (r15.11(1))

• any party may apply for stay to be lifted, using part 23 procedure + giving reasons for delay (r15.11(2), PD 15 para 3)

Stay to allow settlement

• how does a stay come about?

1. parties request

   • party may request stay for ADR / settlement in writing when file DQ (r26.4(1))

   • if all parties request a stay 1 month stay + court will notify parties in writing (r26.4(2))

2. court directs

   • if thinks appropriate, court will direct whole / part 1 month stay OR other period (r26.4(2A))

3. when Part 36 offer accepted

4. frequently ordinary consent order provides for stay

5. Tomlin order - stays proceedings in terms set out in schedule, with liberty to apply

   • extension of stay

     • court may extend until for period / till date as appropriate (r26.4(3))

   • requirement to notify if settlement reached

     • if stay under this rule, C must tell court if settlement reached (r26.4(4))

     • if C does NOT tell court by end of stay, court will give appropriate case management directions (r26.2(5))

Stays in pending proceedings / for litigation reasons

• stay desirable for efficient progress of proceedings in following examples:

  1. PI:

1. stay to determine prognosis: no issue on liability BUT clear prognosis NOT possible for some time

2. stay to obtain medical evidence: claim issued close to expiry of limitation without sufficient medical evidence because difficulty obtaining

   1. protected proceedings: solicitor instructed close to expiry of limitation - apply for stay to enable pre-action protocol compliance

   2. where claim commenced + possibility proceedings will NOT serve useful purpose

   3. stay pending resolution of test case (Woods v Duncan)

   4. stay at allocation for settlement (r26.4) (see stay for settlement above)

   5. stay for reference to CJ

Stays to enforce compliance with orders

• only effective against C OR person in position of a C (e.g. counterclaiming D)

• examples of stays imposed to enforce compliance with orders:

  1. (usually) pending provision of security for costs

  2. C in PI claim refuses reasonable request for medical exam BSB like this!

  3. pending unsatisfactory undertaking as to costs OR connected with way claim funded

  4. second claim pending payment of costs of earlier discontinued / struck out claim

     • court may stay if C fails to pay within 14 days of date parties agreed / court ordered sum payable (r38.8)

  5. where partners fail to comply with demand for names + addressed (PD 7A para 5B.1-3)

Stays to protect concurrent claims

• general public interest in avoiding multiple claims

• the solution:

1. strike out as abuse of process; OR

2. stay (if not suitable for strike out):

1. breach of arbitration clause by commencing litigation (s9 AA)

2. where dispute should be dealt with in admin of insolvent person's estate

3. certain situations re: service outside jurisdiction

4. stays until resolution of connected criminal proceedings

   • following can apply:

     • any party to civil claim

     • prosecutor

     • D to criminal proceedings (PD 23A para 11A.1)

   • evidence in support must:

     • contain estimate of duration of stay; AND

     • ID how continuing civil claim might prejudice criminal trial (PD 23A para 11A.3)

DISCONTINUANCE

• what is discontinuance

  • = pulling out of litigation

  • discontinuance if C claims more than 1 remedy and abandons claim to 1+ remedies BUT continues with claim for other (r38.1(2))

• what may be discontinued

  • C may discontinue:

    • all of claim (r38.1(1))

    • part of claim (r38.1(1))

    • against any Ds (r38.2(3))

    • all Ds (r38.2(3))

• whether permission to discontinue required

  • general rule

    • C may discontinue without permission at any time (r38.2(1))

  • exceptions

1. court has granted II

   • C must get court's permission (r38.2(2)(a))

2. any party given undertaking to court

   • C must get court's permission (r38.2(2)(a))

3. where C has received an interim payment

   • must get:

1. court's permission; AND

2. consent of paying D in writing (r38.2(2)(b))

4. more than 1 C

   • must get:

1. consent of all other Cs in writing; OR

2. court's permission (r38.2(2)(c))

5. claim brought by person under disability

   • C must get court's approval if discontinuance = settlement / compromise (Sayers v SmithKline)

• procedure for discontinuing

  • C must

1. only IF permission / consent required

1. obtain signed consent AND / OR

2. apply for court's permission AND obtain order granting permission

2. all cases: notice of discontinuance

   • file notice of discontinuance; AND

   • serve on every other party (r38.3(1)); AND

   • state in the notice that he has served it on every other party (r38.3(2)); AND

   • [if multiple Ds, specify in notice against which Ds claim discontinued (r38.3(4))]

   • [if need permission of other party, attach copy of consent to notice (r38.3(3))]

• setting aside notice of discontinuance

  • C may apply to set aside notice served without consent / permission, provided applies within 28 days of service of notice (r38.4)

• effect of discontinuance

  • proceedings ended when notice of discontinuance served on D (r38.5(1))

  • liability for costs

    • small claims

      • NO costs consequences (r38.6(3))

    • fast + multi track

      • usual rule: unless court orders otherwise, discontinuing C liable for D's costs on / before date of service of notice (r38.6(1))

      • court will reverse usual rule if:

1. C has effectively obtained all the relief sought;

2. has been change of circumstances making it uneconomic to continue

   • partly discontinued proceedings

     • unless court orders otherwise, C liable for costs of discontinued part

     • time for assessment

       • unless court orders otherwise, costs must NOT be assessed till rest of proceedings concluded (r38.6(2))

       • court may order immediate payment

     • time for payment

       • if C fails to pay within 14 days after agreement / assessment of costs, remainder of proceedings stayed (see above)

• subsequent proceedings

  • C who discontinued claim after D filed defence needs court's permission to make another claim arising out of same / substantially same facts against same D...