MH Site Maintenance Services Limited & Anor v James Watson

Once a claimant issues protective Part 8 proceedings to preserve limitation while continuing under a pre-action protocol, the court may manage the Part 8 case and direct completion of outstanding protocol steps. It may impose a conditional stay and regulate the stay’s duration. This jurisdiction generally does not arise while the claim remains solely within the protocol. Directions should be exceptional and proportionate, particularly where there has been wholesale default. A protective stay is not automatic, indefinite, or merely administrative; its length must reflect the steps still required and the parties’ compliance.

The claimant began the low-value RTA pre-action protocol after a road accident and liability was admitted. He did not provide the Stage 2 Settlement Pack before the limitation period expired. He therefore issued protective Part 8 proceedings under Practice Direction 49F and obtained a stay while the protocol process continued.

The defendants later sought to lift the stay and require the claimant to provide the Settlement Pack. District Judge Baldwin held that the court lacked jurisdiction to regulate the protocol process. His Honour Judge Wood KC dismissed the appeal. By the second appeal, the claim had left the portal and been transferred to Part 7. The central issues were whether the appeal should nevertheless be heard and whether the court had jurisdiction to direct compliance with the protocol.

1. Academic appeal. The appeal was not academic, or should in any event be heard. The jurisdictional issue was of general importance, both sides had fully argued it, and the substantive issue and likely costs consequences remained live. The conventional requirements identified in Hutcheson v Popdog Limited [2011] EWCA Civ 1580 concerned permission to appeal and were not applied rigidly at the substantive hearing. The more flexible approach in R (L, M, P) v Devon County Council [2021] EWCA Civ 358 and R (SB) v Kensington and Chelsea Royal London Borough Council [2023] EWCA Civ 924 was followed.
2. Jurisdiction. The PAP is ordinarily a self-contained pre-action process. If a claim remains solely within the PAP, the court probably has no jurisdiction to police its progress by freestanding orders. The position changes when the claimant issues Part 8 proceedings and invokes the court’s jurisdiction. The Part 8 claim is then the case for the purposes of rule 3.1(2)(p) of the Civil Procedure Rules 1998, even if it is immediately stayed.
3. The court may make direct case-management directions requiring outstanding PAP steps, including provision of a Stage 2 Settlement Pack. Paragraphs 13–15 of the Practice Direction on Pre-Action Conduct and Protocols expressly permit proceedings to be stayed while particular steps are taken. There is no rational distinction between indirect regulation through a stay and direct orders requiring the missing steps. The court may also impose a conditional stay under rule 3.1(2)(g).
4. A stay under Practice Direction 49F is not an automatic entitlement or merely an administrative act. An initial ex parte stay may be convenient, but the grant and duration of the stay must be considered by reference to the merits and the outstanding protocol steps. The court may reconsider the stay under the liberty to apply provision. Indefinite stays and routine renewals are rarely justified.
5. The original proposed order was too draconian: 21 days was too short and an unless order may have been disproportionate as a first order. Nevertheless, some order requiring compliance with Stage 2 should have been made. Such directions should be reserved for exceptional cases, such as wholesale failure to progress the PAP, and should aim to keep the claim within the portal where possible.
6. Lady Justice Andrews added that the protective limitation procedure is directed to cases where compliance with the PAP is genuinely not possible before limitation, not avoidable delay caused by the claimant. The claimant remains responsible for progressing the claim. Lord Justice Holgate agreed with both judgments.

The appeal was allowed.

1. Court of Appeal (Civil Division): The appeal was allowed. The court held that protective Part 8 proceedings gave it jurisdiction to direct compliance with outstanding pre-action protocol steps: [2025] EWCA Civ 775.
2. County Court at Liverpool: District Judge Baldwin held that the court lacked jurisdiction to order progress within the protocol. His Honour Judge Wood KC dismissed the appeal on 16 January 2024.