Simon O’Dwyer successful in the Court of Appeal on the issue of whether the Court has jurisdiction to make case management orders to progress stagnant claims stayed under CPR Part 8 and PD49F.16.
25th Jun 2025
MH Site Maintenance Services Limited (1) & Markerstudy Insurance Services Limited (2) v James Watson [2025] EWCA Civ 775
Judgment has been handed down by the Court of Appeal in the case of MH Site Maintenance Services Limited (1) & Markerstudy Insurance Services Limited (2) v James Watson [2025] EWCA Civ 775. The case concerned the extremely important jurisdictional point as to whether the Court has any case management power to require a claimant to progress a claim within the Pre-Action Protocol for Low Value Claims in Road Traffic Accidents once the claim has been issued and stayed via CPR Part 8 for limitation purposes.
The Court of Appeal (Coulson LJ, Andrews LJ and Holgate LJ) unanimously decided that it does in reversing the determination by the District Judge at first instance and Circuit Judge on first appeal that no such jurisdiction existed.
Insurers and solicitors acting on their behalf will be all too familiar with the situation whereby repeated requests for information, evidence or updates are left unanswered or ignored leaving the defendant unable to understand the case it is being asked to meet many years after a prompt admission of liability. Another common and concerning feature of such cases is that they often develop into much higher value cases having been “incubated” within the Protocol behind a stay for many months or even years whilst the claimant continues to obtain medical evidence to build their case.
The decision in this case firstly sends a clear message to the parties that they must co-operate to ensure continued compliance with the Protocol and to claimants that the culture of lengthy periods of inactivity will no longer be tolerated nor will the extending of a stay ever be treated as a rubber-stamping exercise going forward. In addition, the ruling provides an invaluable mechanism by which an exasperated defendant can seek the assistance of the Court to make an order compelling the claimant to progress the matter within the Protocol.
The Facts and Background
The claim concerned a road traffic accident which occurred as long ago as September 2019. The claim was presented to the insurer via the Pre-Action Protocol for Low Value Claims in Road Traffic Accidents and a prompt admission of liability was made at Stage 1. By the advent of limitation in September 2022, no Stage 2 settlement pack had been forthcoming. The claimant issued a Part 8 Claim Form seeking a stay of proceedings purportedly in order to further comply with the Protocol. As is routinely the case, this request was granted ex-parte and a stay was placed on proceedings for a period of 12 months.
The defendant had serious concerns regarding the lack of progression of the claim. No medical evidence whatsoever had been provided in the intervening period between the admission of liability and the limitation period expiring. Accordingly, the defendant began to send repeated chasers for updates and information about the progression of the claim. No medical evidence was forthcoming leaving the defendant with little option but to make an application to the Court seeking a case management direction to progress the matter. That application was made in June 2023 and sought an unless order that if the claimant did not submit a Stage 2 settlement pack within 21 days then the claim would be struck out without further order.
This finally elicited a response from the claimant. Within a witness statement provided in opposition to the application, the claimant’s solicitor made the rather startling admission that the first and only medical report that had been obtained on the claimant’s behalf was dated 9th May 2023. Perhaps even more remarkably, the witness statement went on to say that the report was only in a draft format and would therefore not be disclosed to the defendant.
The application was heard before District Judge Baldwin sitting in the County Court at Liverpool on 5th July 2023. Before any substantive submissions could be made in respect of the application, DJ Baldwin indicated that his view was that there was simply no power available to the Court to make the order that was sought. In his view the options available were either to leave the stay in place or lift the stay and transfer the matter to Part 7. Plainly the latter was unattractive to the defendant as it would have removed the claim from the very restricted costs regime within the Portal. In a short ex-tempore judgment, DJ Baldwin concluded that the Court had no jurisdiction to make the order sought and proceeded to dismiss the application.
The defendant appealed and permission was granted by the Designated Civil Judge for Liverpool, His Honour Judge Wood K.C., who heard the first appeal in January 2024. HHJ Wood K.C. upheld the decision of DJ Baldwin.
Court of Appeal
Lady Justice Elisabeth Laing granted permission for a second appeal finding that the appeal raised an important point of principle or practice such that the high bar for a second appeal was met.
The respondent raised numerous arguments including that the appeal should not be heard at all on grounds that it was academic (the claim having left the Protocol in September 2023) and that there was no power to compel submission of the Stage 2 Settlement Pack or compliance with the Protocol generally.
Lord Justice Coulson, who also gave the leading judgment in the case of Barry Cable v Liverpool Victoria Insurance Company Limited [2020] EWCA Civ 1015 concerning issues of abuse of process in connection with the obtaining and utilisation of a stay in claims which were unsuitable for the Protocol, had little difficulty in rejecting these arguments.
Coulson LJ held that the issue was a significant point of practice/procedure and that it was not academic. He accepted the appellants’ fundamental submission that once a Part 8 Claim Form is issued and there are extant Court proceedings the court has all the powers identified in r.3.1(2); it has an express power under the Practice Direction cited at paragraph 26 above to order compliance with the PAP; and is obliged to take such matters into account in any event when granting or reconsidering a stay, or making the stay conditional.
The Court was clear that the appropriate length of time to be allowed in any given case for the claimant to take a further step within the Protocol will be fact specific and judged in relation to the degree of non-compliance with the Protocol.
Two other important points of practice going forward will be the timing of any such application for progression and the extent to which the defendant has sought to agree a timetable with the claimant for appropriate progression without the need to trouble the Court with an application. These applications will need to be well judged and deployed only in circumstances whereby they are appropriate and justified.
It is envisaged that the correct approach to situations whereby the defendant is becoming increasingly concerned or frustrated at the lack of progress or apparent failure to comply with the Protocol will, in the first instance, be to seek co-operation from the claimant via correspondence. The defendant should look to agree a timetable with the claimant setting out dates by which the claimant will take steps within the Protocol and by when a Stage 2 Settlement Pack will be submitted.
It should only be in cases whereby these attempts fail or are ignored that an application should then be considered. Andrews LJ indicated that it should ordinarily be at the time that any stay is renewed that consideration be given to compliance with the Protocol and applications within the first period of stay granted by the Court are likely to be rare. They should be reserved for the most serious of examples of non-compliance such as on the facts of this particular case where no medical evidence at all had been obtained prior to limitation. Clearly, each application will be judged on the particular facts of each case and the degree to which the claimant has failed to comply with the Protocol and to co-operate with the defendant.
It is anticipated that this decision will provide a clear warning to claimants that the culture of delay and an assumed entitlement to a stay which can be repeatedly renewed without any scrutiny will no longer be tolerated. Claimants will need to get on and progress these claims. It also provides the necessary mechanism for a defendant faced with a claim which is not progressing or where there are serious concerns about the claim’s ongoing suitability for the Protocol to seek that the Court engage its case management powers to order such progression.
A link to the judgment can be found here:
https://caselaw.nationalarchives.gov.uk/ewca/civ/2025/775?query=2025+ewca+civ+775
Simon O’Dwyer instructed by Marie Crawford of Carpenters Group Solicitors on behalf of Markerstudy Insurance Services Limited represented the successful appellants
