The claimant continued an action brought in her late husband’s name. The action had begun under the former rules. After the new rules came into effect, the action was automatically stayed, since no progress had been made for over a year. Her application to lift the stay was refused, and she appealed.
Held: The automatic stay under Part 51 applied the court rules identified in CPR 3.9, and accordingly that rule must be read in detail along with Part 51, when dealing with an application to lift the stay. The court should also recognise that a stay risked infringing a party’s Article 6 Human Rights.
Brooke LJ referred to the public interest in the efficient conduct of litigation and continued: ‘But at least as important is the general need, in the interest of justice, to protect the respondents to successive applications in such circumstances from oppression. The rationale of the rule in Henderson and Henderson that, in the absence of special circumstances, parties should bring their whole case before the Court so that all aspects of it may be decided (subject to appeal) once and for all is a rule of public policy based upon the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits where one would do’.
Brooke LJ gave guidance as to the manner in which a court should approach the task of applying CPR 3.9 in the context of deciding whether to lift an automatic stay: ‘This rule is a good example of the way in which the draftsman of the Civil Procedure Rules has sometimes endeavoured to set out in a codified form the various matters which the court may have to take into account when deciding how to exercise its discretion in a context with which it will be all too familiar. One of the great demerits of the former procedural regimes was that simple rules got barnacled with case-law. Under the new regime the draftsman has sought to dispense with the need for litigants to be familiar with judge-made case-law by drawing into one place the most common of the considerations a court must take into account when deciding whether a litigant should be granted relief from a sanction imposed on him.
The circumstances in which a court may be asked to make a decision of this kind are infinitely varied. This is why the rule instructs the court to consider all the circumstances of the particular case, including the nine listed items. On the other hand, the rule would lose much of its praiseworthy purpose of encouraging structured decision-making if courts did not consciously go through the exercise of considering all the items on the list when determining how, on balance, it should exercise its discretion. Provided it does so, and in this way ensures that the risk of omitting any material consideration is minimised, it is most unlikely that an appeal court will interfere with its decision. If it fails to do so, an appeal court may not be able to detect that it has taken all material matters into account, and it may be obliged to exercise its discretion afresh for this reason.’
Lord Justice Brooke, Lord Justice Laws, And, Lord Justice Dyson
 1 WLR 2558,  2 All ER 737, Times 05-Apr-2002, Gazette 18-Apr-2002,  EWCA Civ 275,  All ER (D) 79
Civil Procedure Rules Part 51
England and Wales
Explained – La Baguette Ltd and Others v Audergon CA 23-Jan-2002
Judges should be careful not to create judicial checklists which added a gloss to the civil procedure rules. The claimant’s action had been stayed automatically for not having progressed for a year. The judge applied the checklist in Annodeus to . .
Cited – Ashingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
Cited – Tinnelly and Sons Ltd and Others and McElduff and Others v United Kingdom ECHR 10-Jul-1998
Legislation which disallowed claimants who asserted that they had been discriminated against, on the grounds of their religious background, from appealing through the courts system, was a clear breach of their human rights. A limitation will not be . .
Cited – Price v Price (Trading As Poppyland Headware) CA 26-Jun-2003
The claimant sought damages from his wife for personal injuries. He had been late beginning the claim, and it was served without particulars. He then failed to serve the particulars within 14 days. Totty and then Sayers had clarified the procedure . .
Cited – Di Placito v Slater and others CA 19-Dec-2003
The parties had earlier compromised their dispute, with the claimant undertaking not to lodge any further claim unless he did so within a certain time. They now sought to commence action.
Held: When considering whether to discharge such an . .
Cited – Flaxman-Binns v Lincolnshire County Council CA 5-Apr-2004
When looking at whether to lift a stay on an action imposed before the coming into effect of the Civil Procedure Rules, the court should look at each of the items listed in the rule, and should then stand back and look at the overall needs of . .
Cited – R C Residuals Ltd (formerly Regent Chemicals Ltd) v Linton Fuel Oils Ltd CA 2-May-2002
The applicant had failed to comply with an unless order, delivering his expert evidence some 20 minutes late. The evidence had not been allowed. They appealed.
Held: The claim was re-instated. This was not the first occasion of default. . .
Cited – Bilta (Uk) Ltd v Nazir and Others ChD 24-Nov-2010
The company had been wound up by the Revenue on the basis that it had been used for a substantial VAT fraud. The liquidators now sued those said to have participated. A defendant denied the jurisdiction because of a disputed arbitration agreement. . .
Cited – Jordan, Re for Judicial Review SC 6-Mar-2019
(Northern Ireland) The deceased had been shot by a member of the Royal Ulster Constabulary in 1992. There had been inquests in 1995 and 2012, but proceedings were again brought alleging delay. The Court of Appeal had ordered a further stay of . .
Lists of cited by and citing cases may be incomplete.
Civil Procedure Rules, Human Rights, Litigation Practice
Updated: 16 January 2022; Ref: scu.167729