Practice and Procedure


PUBLISHED December 18, 2003

The possibility of a fair trial was merely one of the factors to be taken into account on an application for relief from sanctions under r.3.9 Civil Procedure Rules 1998 SI 1998/3132, on such an application, the court should have regard to all relevant circumstances.Appeal against a judge's decision to uphold a previous decision to refuse to lift the automatic stays that had been imposed on actions against solicitors and barristers who had previously advised the appellants. The appellants ('H', 'M', 'P' and 'W') had issued proceedings against their former solicitors ('E') and, in the case of H his former barrister, ('N') in March 1999. They alleged that E and N had acted negligently in advising them that they could not pursue their claims against two local authorities of child abuse to which they had been subjected while in care. As the actions did not come before the court within one year, they were automatically stayed under CPR 51. An application to lift the stay was made on 9 May 2002. The master, whose discretion was upheld by the judge, concluded, inter alia, that: (i) the appellants had not proceeded with the expedition that the overriding objective of the Civil Procedure Rules 1998 SI 1998/3132 demanded; and (ii) E and N would suffer more prejudice than the appellants were the stay to be lifted. The appellants argued that: (a) the master and the judge had erred by failing to treat the case as an application to strike the actions out, with the result that they had failed to consider, as they should have done, whether there was a "substantial risk of the impossibility of a fair trial"; and (b) the judge had erred by failing to re-exercise the discretion available to him.HELD: (1) An application to lift an automatic stay was an application for relief from sanctions under CPR 3.9. While there would be many cases where the possibility of a fair trial would be highly important to the exercise of the court's discretion under CPR 3.9, it did not follow that where a fair trial was still possible, relief would be granted. The instant case involved all too familiar inefficiency and lack of diligence. In such a case it was likely to be very material that a fair trial was still possible, but that could not necessarily be decisive. All the circumstances had to be considered and prejudice to professional defendants was among them. Taylor v Anderson (2002) EWCA Civ 1680 was distinguished. (2) The correct approach under CPR 3.9 was to stand back and assess the significance and weight of all relevant circumstances. The master's exercise of his discretion had been flawed for three main reasons: (i) he had placed undue emphasis on the expedition required by the overriding objective, as the overriding objective was a duty on the court in litigation to which the CPR applied, whereas the present applications related to the conduct by claimants of actions made subject to automatic stays because they were not brought before the court in such a way and at such a time as to make the CPR apply; (ii) he had placed too much weight on the prejudice to E and N as a result of the litigation hanging over them; and (iii) he had failed to take into account the potential double discounting of damages that might occur were the appellants forced to sue the solicitors who had handled their claims against E and N. In all the circumstances it would be appropriate to exercise the discretion under CPR 3.9 afresh and lift the automatic stays.Appeals allowed

[2003] EWCA Civ 1801