David Lancaster & Ors. v Jonathan Peacock QC

A stay pending an appeal in a similar case is discretionary. The court must apply the power consistently with the overriding objective and weigh all the circumstances. Relevant considerations include the likely significance of the appellate decision, possible savings in costs and court time, duplication, delay, prejudice to the parties, the risk that the appeal will not resolve the dispute, and the effect on court resources. A stay should be refused where the benefit of awaiting the appeal is outweighed by substantial delay, prejudice and the limited likely saving, particularly where factual issues depend on recollection and the claims are sample claims intended to progress the wider litigation.

The claimants sought a stay under CPR 3.1(2)(f) or the inherent jurisdiction pending an appeal in McClean v Thornhill, a similar professional-negligence claim concerning advice on a tax mitigation scheme. The appeal was expected to address issues concerning duty of care, breach and causation. The present proceedings involved ten sample claimants, whose claims were intended to determine or assist the claims of 113 other claimants. Alternatively, the claimants sought an extension of time for exchanging witness statements. The central issue was whether awaiting the appeal would further the overriding objective sufficiently to justify delaying the fixed trial.

1. The court had power to stay the proceedings under CPR 3.1(2)(f) and under its inherent jurisdiction. That power had to be exercised in accordance with the overriding objective, including saving expense, ensuring expeditious and fair resolution, and allocating an appropriate share of court resources.
2. The guidance in In Re Yates Settlement Trusts was applicable. Where an important similar case was subject to appeal, it could be in the public interest to defer determination of another case, but the decision depended on all the circumstances.
3. The Court of Appeal’s decision in McClean was likely to provide binding guidance on some legal issues and might reduce argument at trial. Its effect remained uncertain. The appeal might settle, be decided narrowly, or be taken further, and factual and legal differences meant that it was unlikely to determine the present claim.
4. The relevant balance included the substantial delay that a stay would cause, the increased costs and duplication avoided by waiting, the uncertain prospect of ultimate savings, prejudice to the defendant from prolonging the proceedings, and the potential benefit of appellate guidance. The current trial was estimated to last 21 to 23 days, whereas the likely additional argument concerning McClean would take no more than one or two days.
5. The additional costs and court time were relatively small in the context of the litigation. By contrast, a stay would postpone trial by one to two years, produce a five- to six-year period from issue to trial, and risk impairing recollection of events dating back to 2007. It would also prolong real professional and financial prejudice to the defendant and consume court resources through later relisting.
6. The interests of avoiding substantial delay and the prejudice caused by postponement outweighed the possible advantages of awaiting the appeal. The application for a stay was dismissed. The alternative application for an extension of time was not granted.