IN THE MATTER OF CLAIMS DIRECT TEST CASES

A stay of case-management directions pending an imminent appeal may be granted where conditional undertakings offer a practical means of preserving the hearing while protecting the parties from wasted work and unfair prejudice. The court may reject a proposed disclosure order requiring advance provision of a document list where the documents cannot yet be inspected and the order is likely to generate hypothetical disputes. A conditional stay may require prompt compliance after the appellate result, advance identification of documents and witnesses on the relevant outcome hypothesis, and clarification of the issues in dispute. The court may preserve liberty to apply if later disclosure makes the listed hearing unfair.

These representative costs proceedings arose from the business of Claims Direct. Master Hurst made a case-management order in November 2001, amended in January 2002, requiring disclosure and witness statements before a hearing fixed for 9 April 2002. The claimants sought permission to appeal against directions defining the issues for that hearing and renewed an application for a stay pending consideration by a specially convened full Court of Appeal on 18 and 19 March.

The claimants had not complied with the directions, and the respondents had withheld compliance pending resolution of the application. The central issue was whether the directions should be stayed on conditional terms which preserved the April hearing while allowing the respondents a fair opportunity to prepare.

Disposition

The application for a stay of Master Hurst’s disclosure and witness statement order was allowed on the terms offered by the claimants. The costs of the application, including the claimants’ solicitor’s attendance on the earlier application, were left to the discretion of the full Court of Appeal.

1. The court expressed no view on the merits of the proposed appeal. The relevant question was the practical and just management of the proceedings pending the full court’s decision.
2. The respondents’ proposed additional order requiring advance disclosure by list of documents which would be disclosed if the claimants lost the appeal was refused. It would be a strange and novel order. Since the documents could not then be inspected, disputes about their scope or adequacy would be hypothetical and might create further procedural conflict rather than assist the court.
3. A conditional stay was appropriate because the claimants’ undertakings created a better prospect that the 9 April hearing could proceed than an order imposing additional court-directed compulsion. The court regarded cooperation in the circumstances as desirable.
4. The claimants undertook to comply, within 48 hours of the announcement of the substantive appellate result, with the disclosure and witness statement order to the extent then required. Inspection of disclosed documents was to begin on the morning after lists were provided, excluding Sundays. By 13 March, they were to provide a list of documents and identify witnesses on the hypothesis that they succeeded in the appeal. They were not required at that stage to disclose witness statements. They were also to address the amended points of dispute by letter and serve amended points of reply within 48 hours of the appellate decision.
5. The respondents had liberty to apply to Master Hurst if the late arrival of material after an unsuccessful appeal made it unfair or impracticable to maintain the 9 April hearing. This was acknowledged as a safeguard, not encouragement to postpone the hearing.

• Court of Appeal (Civil Division): On a renewed interlocutory application, granted a stay of Master Hurst’s disclosure and witness statement directions pending the hearing of the substantive appeal by a specially convened full court.
• High Court of Justice, Queen’s Bench Division, Supreme Court Costs Office: Master Hurst made a case-management order in November 2001, amended in January 2002, fixing issues for determination and directing disclosure and witness statements before a hearing on 9 April 2002.