Speed & Anor v London Borough of Waltham Forest & Ors

A failure to obtain an extension of a stay does not, without more, strike out proceedings. The effect of a conditional stay depends on the order’s terms and the claims and parties within its scope. A court must not assume that claims against other defendants were struck out where the order related only to one defendant. Where a claimant was a minor when proceedings were issued but had reached majority by the time of a strike-out application, representation and capacity must be addressed. An unserved application made after majority, absent a finding of incapacity, may leave the resulting order precarious and require consideration by the Court of Protection. A related permission application may properly be adjourned pending that clarification.

The appellants appealed from an order made by His Honour Judge McKenna, sitting in the Queen’s Bench Division of the High Court, following the failure of an application to extend a stay of proceedings. The appeal concerned whether that failure had struck out the claims against all five defendants, the proper scope of an earlier order made by MacDuff J, and the status of an earlier strike-out order affecting the first claimant after he had reached majority. The Court also considered an outstanding application for permission to appeal and unresolved questions concerning the first claimant’s litigation capacity.

1. The appeal was allowed. The Court held that paragraph 2 of Judge McKenna’s order appeared to assume that the claims against all five defendants had been struck out, but that assumption was mistaken if it had been made.
2. MacDuff J’s order stayed the action until 19 May 2010 and provided for automatic strike-out only if no application to lift or extend the stay was made before 19 April 2010. The Second Claimant’s application was made on 14 April 2010. There was therefore no automatic strike-out. In any event, MacDuff J had been concerned only with claims against the First Defendant. The claims against the Second to Fifth Defendants had never been struck out and no application had been made to strike them out.
3. The order of Master Eyre allowing the first claimant’s assault claim to proceed necessarily treated the claim form and particulars of claim as validly issued and served on his behalf. By the time of the strike-out application, however, the first claimant had reached majority. The application had not been served on him, and there had been no finding that he lacked capacity or was a protected party. The status of the strike-out order was consequently precarious. The Court of Protection was to consider his capacity, and any litigation friend appointed by that court could make an appropriate application concerning Master Eyre’s order.
4. The Second Claimant’s outstanding permission application was adjourned pending clarification of the first claimant’s position. The appropriate order on the application before Judge McKenna was that the Second Claimant pay the First Defendant’s costs.
5. The Court commended mediation to the represented parties. The first claimant could not participate without further provision because he was unrepresented and his capacity remained unresolved.

• Court of Appeal (Civil Division): On 9 February 2011, the Court allowed the appeal, held that the failure to extend the stay had not automatically struck out the proceedings, and gave consequential directions concerning capacity, permission to appeal and costs: [2011] EWCA Civ 88.
• High Court, Queen’s Bench Division: His Honour Judge McKenna, sitting as a High Court judge, dealt with the failed application to extend the stay and made the order under appeal: [2010] EWCA Civ 1551.