HT-2024-000027 - [2025] EWHC 3002 (TCC)

In Mr Thompson’s Skeleton Argument for the hearing before me (he being counsel for the Claimant) at paragraph 17 he submits:

It is submitted that the only sensible interpretation of the evidence is that the parties were in agreement that the stay should be extended by a period commensurate with the extension of the deadline for the Protocol meeting to be held, i.e. to the end of February, or at least that the Defendants acquiesced in the situation that arose (namely that a meaningful meeting could be held up to the end of March 2025, including after the expiry of the stay, without the Claimant having served the claim form and particulars of claim). A Protocol meeting would not have been meaningful unless the Claimant would have been in a position to progress the claim if no resolution of the dispute had been achieved.

All parties have submitted witness statements from their respective solicitors setting out what each subjectively thought was being agreed or not agreed.

Whilst I did not ask for submissions on this point, it seems to me that evidence is strictly irrelevant: what is relevant is what the parties agreed as assessed objectively on what was said or done (or not said or done) by each of them.

Mr Thompson accepts that there was no express agreement to an extension of the stay imposed by Jefford J. As he stated in his submission as recorded above, he submits that agreement to a stay flowed from the agreement to the extension of time for the Without Prejudice meeting.

This has been interpreted by the Defendants as a submission that it was implicit in the agreement to postponement of the Without Prejudice meeting that there would be an extension to the stay.

The Defendants refer to the well established principles in respect of implication of a term. These were, in my view, correctly summarised in paragraph 53 of the skeleton argument of Mr Zvesper, counsel for the First Defendant:

On the facts of this case, I would add an extra condition. It is clear on the correspondence that all parties were to be involved in the Without Prejudice meeting and therefore that any postponement of the meeting would have to be agreed by all (or the subject of a court order) and also that the terms of such postponement would have to be agreed.

Whilst all parties were agreed on the postponement to the end of March 2025, there was a small difference between them in that the Second Defendant’s agreement appears to have been conditional upon agreement of a Consent Order, whilst the other Defendants’ agreement was unconditional. However, I do not rest my decision on that point as such, but there is importance as to the form such an agreement would take.

In my view, it does not follow from the fact of an agreement to the postponement of the meeting alone that a stay was agreed. If there had been no potential limitation problem, then there was no reason why a meeting could not have taken place after the stay had been lifted.

It was the expiry of the limitation period if (a) the stay was not continued and (b) the pleadings were not served by 26 February 2025 which lies at the heart of the problem. What the Claimant needs is a retrospective extension of the stay of the proceedings to put itself in the position it would have been in had the stay been extended or renewed prior to 26 February 2025 by when the proceedings otherwise should have been served.

I find it impossible to conclude that the Defendants impliedly agreed to a stay being granted retrospectively so as to deprive them of any limitation defences each of them might have as a result of the failure to serve the proceedings timeously.

A further important point is that the agreement to postpone the meeting had been reached by 10 February 2025, which was 12 days before the stay was due to expire and 16 days before the date for service of the pleadings would expire. Nothing which the Defendants did or said (or did not do or say) amounted to an implied agreement that the Claimant need not take appropriate steps to protect its position in the days remaining. The simplest thing would have been to serve the pleadings and then seek an order for a further stay for a limited period, or to seek a short extension for the date of service of the pleadings.

As to what was agreed, it is relevant that it was agreed between the parties’ lawyers. With that in mind it seems to me that a relevant term was to be implied, namely that insofar as the agreement to postpone the meeting required legal formalities to be respected, the parties would use their best endeavours to comply with such formalities.

In respect of the meeting, the deadline for this had been set by the Court. CPR 2.11 permits parties to vary the time specified to do an act. CPR 2.11 provides:

Unless these Rules or a practice direction provide otherwise or the court orders otherwise, the time specified by a rule or by the court for a person to do any act may be varied by the written agreement of the parties.

I am prepared to accept, without deciding the point, that an exchange of emails may constitute a “written agreement” for the purposes of CPR 2.11. Thus, I am willing to accept that there was a written agreement to the postponement of the meeting.

The question is whether there was a “written agreement” to stay the proceedings, assuming, contrary to what I have decided above, that the parties have implicitly agreed to a stay of the proceedings. This involves the question, does the expression “written agreement” to vary a time specified by the Court include an implied agreement.

The Second Defendant submits, and I agree, that the answer to this question is given by the decision of the Court of Appeal in Thomas v Home Office (Footnote: ³) in which Neuberger L.J. said at paragraph [28]:

… To my mind, the concept of a “written agreement between the parties”, particularly in the context of the Rules, involves a document or exchange of documents which is intended to constitute the agreement or to confirm or record the agreement…

In that case, the Court was considering a case in which the principles of estoppel were invoked to avoid the strict terms of CPR 2.11. I agree with the Second Defendant that the reasoning of the Court rejecting that case applies also to a suggested implied agreement. The purpose of Court Orders is to spell out with precision what parties must do and the time for doing so. The same applies to agreements to vary time limits in Court Orders. In this case, the Order of Jefford J. specified when the stay would end: any written agreement would have to address that extant Court Order.

However, even that would not be sufficient: in UK Highways A55 Limited v Hyder at [51], Edwards-Stuart J. said (Footnote: ⁴):

…the rules give the court the power to impose a stay: it is not something that can be imposed by a party individually, or by the parties collectively, because the rules confer no such power. If the parties do not have the power to impose a stay by express agreement in the absence of an order of the court, and in my view it is clear that they do not, I cannot see how they can impose a stay by implication.

Thus, there could not have been a legally binding agreement between the parties to impose a stay. At most there could have been an agreement between the parties that an application for an order by consent to stay the proceedings would be made to the Court, subject, as always, to the Court’s discretion as to whether to make such order.

Accordingly, I conclude that there was an agreement to postpone the Without Prejudice meeting, and I am prepared to accept that that agreement complied with CPR r. 2.11. However, on the facts I conclude that there was no agreement to extend the stay of the proceedings, or, if there was one, it did not comply with CPR r. 2.11, and, even if it had complied with CPR r. 2.11, it would at most have been an agreement to apply to the Court for an order by consent.

Thus, the Court has a situation in which the parties have not agreed to an extension of the stay, and, indeed, the Defendants are opposed to such an extension because it would (or might) have the effect of depriving them of accrued limitation defence.