Flaxman-Binns v Lincolnshire County Council

An automatic stay imposed under Practice Direction 51 is a sanction for the purposes of relief under the Civil Procedure Rules.

The court must consider all relevant circumstances and each listed factor, then stand back and assess their overall significance rather than count them. A litigant in person should not be blamed for failing to prevent an automatic stay of which he could not reasonably have been aware. Where delay is substantially attributable to the solicitor, that weighs in favour of relief. Although the claimant bears the overall burden, the defendant should provide evidence of any prejudice to a fair defence. In the absence of such evidence, significant prejudice may be inferred to be unlikely.

The claimant brought negligence proceedings against the respondent local education authority concerning his education and alleged speech-related damage. The proceedings were stayed pending the House of Lords decision in X v Bedfordshire County Council [1995] 2 AC 633, and later remained inactive during the litigation in Phelps v Hillingdon London Borough Council [1999] 1 WLR 500.

The proceedings became subject to the automatic stay under Practice Direction 51.19. In September 2003 the claimant applied to lift the stay. His Honour Judge Heppel QC dismissed the application and, consequently, dismissed the claim. The central issues on appeal were responsibility for the delay, the effect of delay on the fairness of any trial, and the proper exercise of the discretion under CPR 3.9.

1. Appeal allowed. The automatic stay was lifted, the order dismissing the claim was set aside, and the proceedings were stayed until 5 July 2004 to allow the parties to seek a compromise.
2. An automatic stay under Practice Direction 51 is a sanction within CPR 3.9. The court endorsed the guidance in Audergon v La Baguette Ltd [2002] EWCA Civ 1289 and Woodhouse v Consignia Plc [2002] EWCA Civ 275. The court must address all the circumstances, including the matters listed in CPR 3.9, and must support the application with evidence.
3. The listed considerations must be examined consciously, but the court must then stand back and assess their significance and weight overall. It must avoid a mechanical head-counting exercise, as explained in Hansom and others v Makin and Wright [2003] EWCA Civ 1801.
4. The claimant was not to be blamed for failing to prevent the automatic stay while acting in person and unaware of the transitional provisions. It was reasonable to await the outcome of the pending appeal in Phelps. A short period of unexplained delay before solicitors were instructed could properly be attributed to the claimant, but the major subsequent delay was attributable to his solicitor, who accepted full responsibility. The judge’s contrary assumption was corrected by additional evidence admitted on appeal.
5. Although the overall burden lay on the claimant to show that the stay should be lifted, the respondent had not advanced a positive evidential case that the post-July 2000 delay had prejudiced its defence. The court therefore inferred that the additional delay was unlikely to have caused significant prejudice. The possibility of a fair trial and the consequences of delay were separate but overlapping questions, and the administration of justice was wider than the fair-trial issue alone.
6. Because the lower court’s exercise of discretion rested materially on an erroneous assessment of responsibility for delay, the Court of Appeal exercised the discretion afresh. The solicitor’s responsibility, rather than the claimant’s, favoured allowing the claim to proceed. The overriding objective ultimately required continuation of the proceedings, despite the decision being finely balanced. There was no order as to the costs below, subject to public funding assessment, and the respondent was ordered to pay the claimant’s appeal costs.

1. Court of Appeal (Civil Division) allowed the appeal, set aside the order dismissing the application and claim, lifted the automatic stay, and imposed a further stay until 5 July 2004. [2004] EWCA Civ 424
2. Queen’s Bench Division, His Honour Judge Heppel QC, dismissed the claimant’s application to lift the automatic stay on 28 October 2003 and consequently dismissed the claim.