UK Highways A55 Ltd & Ors v Hyder Consulting (UK) Ltd & Ors

A stay suspends proceedings and outstanding time limits; it does not abolish them. Where a stay expires on a specified date, the proceedings resume automatically from the point at which they were stayed. Parties cannot create a further implied or de facto stay without a court order. When considering relief from a failure to serve particulars of claim, the court must apply the factors in CPR 3.9 and balance the interests of justice, delay, explanation and prejudice. Relief may be granted subject to conditions under CPR 3.1. Where delay has materially impaired evidence on some allegations but not others, a proportionate order may permit the claim to continue in a narrowed form.

The claimants brought proceedings concerning alleged defects in the design and construction of the A55 road. The claim form was served in May 2010, but the parties agreed a series of court-ordered stays while they pursued the pre-action protocol, expert discussions and possible mediation. The final stay expired on 23 June 2011. The claimants served particulars of claim on 12 September 2012.

The defendants applied for summary judgment or strike-out for failure to serve the particulars within the time required by CPR 7.4(1)(b). The claimants sought an extension of time, arguing that the stays had suspended or abolished the time limit and that the parties had thereafter operated under a de facto stay. The central issues were whether an extension was required and, if so, whether relief should be granted and on what conditions.

1. Effect of the stays. The time for serving particulars of claim expired before the second consent stay was imposed. A stay generally suspends proceedings until it is lifted or expires. Where it is ordered until a specified date, it ends automatically on that date and the proceedings resume from where they left off. The parties had no power to create a de facto stay after 23 June 2011 without a further court order.
2. Waiver and acquiescence. The defendants could not fairly rely on the period covered by the successive consent orders. Their conduct during the following period of discussions also amounted to acquiescence sufficient to make reliance on delay up to late April 2012 unjust. After that point, however, the claimants had no reasonable basis for withholding the particulars.
3. Relief from default. Applying CPR 3.9 and the approach in Price v Price [2003] 3 All ER 911, the court considered the administration of justice, promptness, intention, explanation, compliance, responsibility, trial timing and prejudice. The delay was substantial and the explanation was not good, but the claim was not shown to be without merit. Much of the evidential prejudice pre-dated issue of the claim form.
4. Proportionate conditions. Following the guidance in Price v Price, the court granted an extension subject to conditions. The claim could proceed on negligent design, which was principally a matter for project records and expert evidence. Allegations concerning supervision of trials and inspections were excluded because the delay had impaired the defendants’ ability to investigate factual events, witnesses and contemporaneous documents.
5. The order already made permitted the claim to proceed in that confined form. Costs and any consequential matters were reserved for further argument.

not stated in the judgment.