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Stuart J
Stuart J, Solicitor
Category: UK Law
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Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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stay of proceedings

Resolved Question:

Is is possible for a claimant to apply for a stay of civil proceedings under Practice Direction 26.4.2b and if so does this require a letter, completion of a form or the drafting of an order?

Submitted: 1 year ago.
Category: UK Law
Expert:  Stuart J replied 1 year ago.
Hello, I am Law Denning and I am a practising solicitor in a High
Street practice. I have been an expert on this website in UK law since 2008.
During that time, as you appreciate, I have answered thousands of questions
from satisfied users on a variety of subjects.
Because we are all in practice with clients and court and other
users, I might not always respond in
minutes, particularly evenings and weekends. Please bear with me in that
case

It is my pleasure to try and assist you with this today. Please bear with me
while I gather some further information from you in order for me to be able to advise you fully.


-Could you explain your situation a little more?
Customer: replied 1 year ago.

What precisely do you need to know in relation to this general enquiry? The action is only just being started.

Expert:  Stuart J replied 1 year ago.


Is this a small claim?

Have you filled the allocation
questionnaire in yet?



Will the other side agree to
this?

Customer: replied 1 year ago.

Not a small claim. I have not completed the allocation questionnaire yet. I doubt the other side will agree and they are not communicating with me.

Expert:  Stuart J replied 1 year ago.


There is no 26.4.2 B.

There is a 26.4.2 A



http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part26#IDAZPSBB



if both parties agree either
in the allocation questionnaire or by letter, then under 26.4.2, the court can
grant it.



Under 26.4.2 A court can
grant it if the court considers that it is appropriate in which case, that
would need to be an application on notice and you would need to give the other
side notice of the application and they may object although I cannot see why
they would object as it delays the matter.



However if the other side are
not communicating with you I cannot see why firstly you would want to apply for
a stay secondly why you would ask for it.



At this stage, I would be
inclined to simply fill in the allocation questionnaire and ask for the one
month stay and see what the defendant comes back with.



 



Does that answer the
question? I am happy to answer specific points.



Can I help further?

Stuart J, Solicitor
Category: UK Law
Satisfied Customers: 20874
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street practice
Stuart J and 5 other UK Law Specialists are ready to help you
Customer: replied 1 year ago.

 

Reasons for being concerned about not requesting a 3 month stay

 

  1. The pre action protocol – I am issuing due to expiry limitation period.

 

Reasons for not being concerned perhaps

 

  1. I did serve a Letter of Claim over one month ago but the defendant has not responded at all. I now realise that it did not give enough explanation about the precise nature of my claim. It was detailed and did make it clear I was making a claim and the matters that are the basis of the claim. It did not though satisfy all the requirements of the Practice Directions. I have been revising the document.
  2. I do have copies of email discussions with the defendant that occurred over 7 months late last year when I tried to reach a settlement but then they stopped communicating. They might argue with justification perhaps that I did not explain the precise basis of my claim but by reason of their expertise they would have been expected to resolve my issues without the detailed explanations that will appear in the Particulars.
  3. It has taken me since January to prepare the case documents as they are detailed and I had already done significant research etc over the period of 7 months last year, all in preparation for the case.
  4. Information was published just a month ago that is very material to my claim and without it my claim would not have made as much sense.
  5. I know that starting proceedings it will surely elicit a response as they will be aware of all the legal issues. We should then make swift progress. If I give them another two months in addition to the one you suggest then they will take it. I might state that in principle I will give them up to 3 months but if it seems they are just using it as a means to waste time then I will lift the stay at any stage with 14 days notice.

 

I fear that a one month stay might expose me to the prospect of meeting the defendant’s costs even if I win. I did ask the defendant to agree to the stay via email but have received no response.

 

Do I need to worry if I lift the stay after one month if they attempt to waste time?

Expert:  Stuart J replied 1 year ago.


Have you actually
issued proceedings?

If not have you asked
the proposed defendant to enter into a standstill agreement whereby they do not
raise limitation as a defence.



You can do that if
they agree and it is usual to agree 30 days notice by either party.



You cannot ask for a
stay until you issue proceedings. The process in that case is the standstill
agreement.



You cannot lift the
stay on 14 days notice unless that is what it says in the court order.



To be honest, I am
not altogether certain what your concern is or why you want to stay proceedings.

Stuart J, Solicitor
Category: UK Law
Satisfied Customers: 20874
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street practice
Stuart J and 5 other UK Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you. I am submitting the claim form tomorrow.


 


My concern is that even if I win the judge will find me liable to the defendant's costs because I did not follow the Pre Action Protocol. Having to issue now means I do not have time.


 


I do not have time to ask the defendant anything as they do not respond anyway.


 


I will research a standstill agreement. I would need to ask the judge to start proceedings if they were not happy with a standstill agreement. Involving the defendant is impossible as they do not respond.


 


I will write the court order so it will say 14 days notice. I would like to give them 7 days but I do not want to appear to hard in case the court takes a dim view.


 


Any view reference the prospect of having to pay the defendant's costs if I simply issue would be appreciated. I like the idea of the one month stay and presumably I can extend that as required if defendant cooperates reasonably. I think I need to issue because otherwise this will go on for months. It has already caused huge damages and they are mounting quickly.


 


 

Expert:  Stuart J replied 1 year ago.


When does limitation
expire?

How much is the claim
worth and what is the general gist of it?



Remember that you can
always issue proceedings now and serve them later.



Is there any reason
why you would have to pay the defendant's costs do you think? Are you likely to
withdraw from proceedings or you simply thinking because you have not complied
with the protocol? Bearing in mind that limitation is approaching why have you
not dealt with this before?



I do need the full
background please. It is very difficult to answer hypothetical questions and
facts served in dribs and drabs.

Stuart J, Solicitor
Category: UK Law
Satisfied Customers: 20874
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street practice
Stuart J and 5 other UK Law Specialists are ready to help you
Customer: replied 1 year ago.

Limitation period expires within days.


 


Damages will be substantial


 


Civil claim breach of contract and libel


 


No there is no possibility of withdrawing from the proceedings. The only possibility of paying defendants costs would be the protocol.


 


Because I have been preparing the case and trying to make progress with the defendant thinking it was obvious not being aware of the full facts that only became available a month ago. Both took 12 months. I did not realise there was a limitation period until just a few weeks ago. I had been so busy focusing on the documentation and before that trying to find a resolution. As it happens that may be fortunate as recent news has improved my case though it was always solid anyway. I wanted to avoid court action if possible though if I had known then what I know now I would not have waited.

Expert:  Stuart J replied 1 year ago.


You do know that
there is a 12 month time limit for defamation claim but six years for breach of
contract don't you? http://www.thompsons.law.co.uk/ltext/defamation.htm

if you have not
issued, why is there no possibility of withdrawing from the proceedings?



I really need the
full background from start to finish.

Customer: replied 1 year ago.

Thank you. I have just discovered what you meant and your comments now make sense. I have four months to serve the claim form from the date of its issue and until that time I can apply for an extension. However the defendant can at any time require me to serve the claim form. That means a stay is not necessary because I can just delay service of the claim form. I guess I can make the court aware of my intention to only serve the form once I am satisfied I have given the defendant enough time to respond to the Letter of Claim etc. I assume that if the defendant at any time requires me to serve the claim form they are effectively saying they no longer want time to settle pre hearing?

Customer: replied 1 year ago.

Thank you. Your answers were very good. It just took me a little time to understand them. Although it appears as if I am asking another question above, in fact I am not. Sorry about that. I will ask another question if it is a good one.

Expert:  Stuart J replied 1 year ago.

That was I was getting to , I just wanted to be sure of the facts.

You can tell them that you are issuing protective proceedings as limitation is approaching if you wish. They could of course ask you to serve or it might wake them up. Regards

Customer: replied 1 year ago.

I will state that I am prepared to be reasonable and give them time to respond and reach a settlement if they are expeditious and make genuine efforts. I will state that if they do ask me to serve then it will be taken as confirmation that they do not want any more time to negotiate and that they recognise that I will have done everything I could in the circumstances to attempt to meet the objectives of the pre action protocol at least.

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