Sarayiah v University of Durham & Ors

The construction of a court order is a single coherent process. The court considers the order’s language in the circumstances known to the court and patent to the parties. The reasons for making the order are admissible and may be decisive in identifying the issue the order was intended to resolve.

Where an order temporarily stays proceedings and permits an application to be restored after a specified event, the stay ends in accordance with the stated timetable. Unless the application is restored and further relief obtained, time resumes running. A failure to serve particulars of claim within the resulting period may justify strike-out, but the court must assess whether strike-out is proportionate.

The claimant brought defamation proceedings against the defendants. The claim form was served in May 2018, but the particulars of claim were served in July 2019.

Master Davison had extended time for service until determination of the claimant’s application for a stay. Master Thornett subsequently adjourned that application until 21 days after the Court of Appeal’s decision on a related permission application, and permitted either party to apply to restore it after the stay was lifted.

The defendants applied to strike out for late service. The claimant applied for judgment in default of defence. The central issue was the proper construction and effect of Master Thornett’s order.

1. The defendants’ strike-out application was granted and judgment was entered for the defendants. The claimant’s application for judgment in default of defence was dismissed.

2. The construction of Master Thornett’s order required consideration of its language together with the circumstances before the court and patent to the parties. The court’s reasons were admissible to identify the issue the order was intended to resolve, applying Sans Souci Limited v VRL Services Limited [2012] UKPC 6.

3. The order recorded an agreed stay pending the Court of Appeal’s decision. That stay ended 21 days after the claimant was informed of the decision. The order superseded Master Davison’s earlier interim extension. If the claimant wished the stay to continue, he had to apply to restore the stay application. Until further relief was obtained, time ran for service of the particulars of claim.

4. The claimant received the relevant decision, on the approach most favourable to him, on 23 January 2019. The period for service therefore expired on 14 February 2019. Service on 2 July 2019 was more than four months late and breached CPR 7.4(2), as extended by the order.

5. The court had discretion to strike out under CPR 3.4(2)(c). The ultimate question was whether strike-out was proportionate, applying Walsham Chalet Park Limited (t/a The Dream Lodge Group) v Tallington Lakes Ltd [2014] EWCA Civ 1607 at [44]. Strike-out was proportionate because the claimant was experienced in litigation, the delay was significant, he knew the relevant timetable, he did not restore the stay application, and he never made a proper retrospective extension or relief-from-sanctions application.

   The claimant’s later ex parte application concerning service on the fourth defendant was also dismissed and certified totally without merit because the time for service had expired and no basis for the orders sought was established.

The judgment describes earlier orders in related proceedings and interlocutory orders in the present proceedings, but this was a first-instance determination of the defendants’ strike-out application and the claimant’s applications.