Practice and Procedure


PUBLISHED October 3, 2003

Taking account of the specific factors set out in CPR 3.9(1) the court declined to lift the automatic stay imposed in the case of an action which had not come before a judge for a year after the coming into force of the CPR.Application by the claimant company ('W') to lift an automatic stay of proceedings imposed under para.19(1) CPR PD 51 on the basis that the proceedings had not come before a judge between 26 April 1999 and 25 April 2000. The principal of W was a businessman ('D') with interests and political connections in Angola. W's case was that the defendant bank ('ING') had in 1994 requested D to use his influence and contacts to raise certain matters of commercial importance to ING at the highest level within the Angolan government. W alleged that D had raised those issues with the Prime Minister leading to the preparation of a memorandum endorsed by the Prime Minister and entitling W to agreed commission. D sought payment of the commission in 1995 and when his demand was rejected W commenced proceedings in 1995. A defence was served in 1996. Amended particulars of claim were served in 1997 and ING applied to strike out the claim. That application failed. Re-amended particulars of claim were drafted but never served. In 1998 the Court of Appeal refused ING permission to appeal against dismissal of its striking out application. Nothing further happened between 1998 and 2001 and the action became subject to the automatic stay. In 2003 W applied to lift the stay on the basis of evidence that the failure to progress the case had been due to lack of funds and the fault of solicitors who had not informed D about the automatic stay. The principles applicable to lifting the stay were set out in Audergon v La Baguette Ltd (2002) CPLR 192 and Woodhouse v Consignia plc (2002) 1 WLR 2558 and required the court to take into account the provisions of CPR 3.9(1).HELD: (1) Given that a significant part of the delay sought to be excused was said to be due to the financial circumstances of W, the court was entitled to, but had not received, an explanation from W which was full and frank. (2) Once ING's application for leave to appeal had been refused in 1998 W should have taken steps to progress the action prior to the automatic stay being imposed. A trial date should have been obtained by W in 1998. D was a businessman who had been engaged in much litigation and if his then solicitors were not in a position to advise him he should have taken advice from another firm, which would have advised him about the automatic stay. If he decided not to take advice, then that was a deliberate decision. He must have known that W had a duty to proceed with its claim and that there were risks in delaying. There was no good explanation for the delay and it was not the fault of the legal advisers. (3) A realistic trial date of June 1994 would be ten years after the alleged events. (4) The failure to comply with the CPR and delay in making the application to lift the stay had had a seriously prejudicial effect for ING. There would be grave prejudice to ING if the stay was lifted. An attempt to try this type of claim ten years after the alleged happening of the events in dispute would not be in the interests of justice or result in a fair trial. (5) The merits of the claim had been considered on the striking out application and it was not appropriate to consider them afresh. (6) Although it had been held in 1997 that this was a claim which ought to proceed to trial, taking into account the factors set out in CPR 3.9 the conclusion was that the stay should not be lifted.Application to lift the automatic stay refused.

[2003] EWHC 2244 (Comm)