MH Site Maintenance Services Limited & Anor v James Watson [2025] EWCA Civ 775

[2025] EWCA Civ 775Case No CA-2024-000229
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT LIVERPOOL
His Honour Judge Wood K.C.
J06LV462
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/06/2025
Before
LORD JUSTICE COULSONLADY JUSTICE ANDREWSLORD JUSTICE HOLGATE
Between
(1) MH Site Maintenance Services LimitedAppellants/(2) Markerstudy Insurance Services LimitedDefendantsJames WatsonRespondent/
Simon O'Dwyer (instructed by Carpenters Group Solicitors) for AppellantsSteven Turner (instructed by Express Solicitors) for RespondentHearing Hearing Date: 10 June 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 24 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]The central issue in this appeal is whether or not the court has jurisdiction to make directions in connection with a claim within the Pre-Action Protocol for Low Value RTA Claims (“the PAP”), where the claimant has also commenced proceedings under CPR Part 8 to protect that claim against a limitation defence. Both District Judge Baldwin and His Honour Judge Wood KC concluded that the court had no such jurisdiction. This second appeal proceeds by way of permission granted by Laing LJ.[2]In addition, there are a number of other issues, primarily raised by the claimant/respondent (“the claimant”) in the Respondent’s Notice, to the effect that the appeal is academic, and that the original unless order sought by the defendants would have been draconian and unfair, and would have breached the rules relating to privilege. Although I deal with all the issues raised, I consider that these satellite issues have tended to obscure the straightforward point at the heart of the appeal.

The Procedural Background

[3]On 16 September 2019, the claimant was in a road traffic accident with a vehicle driven by an employee of the first defendant/appellant. The second defendant/appellant is the relevant insurer. I shall refer to them collectively as “the defendants”.[4]By a claim notification form dated 17 July 2020, the claimant began the PAP process. This PAP has its own separate portal. The second defendant admitted liability on 30 July 2020. That completed Stage 1 of the PAP process, and meant that the claim was ready to progress from Stage 1 to Stage 2.[5]The principal element of Stage 2 is the preparation by the claimant of a Settlement Pack, which includes (amongst other things) the approved medical report and other evidence, and a list of the heads of claim. It functions as a settlement offer. The defendant is then obliged to respond in detail to the individual heads of claim, thereby making its own counter-offer.[6]In this case, the claim in the PAP never progressed through Stage 2 because no Settlement Pack was ever forthcoming from the claimant. Subsequent evidence demonstrated that the first medical examination did not take place until 11 January 2023, and a draft medical report was not received until 5 May 2023.[7]This failure to progress the claim through Stage 2 was significant, because the limitation period expired on 16 September 2022. So, although the claimant and/or his solicitors had not progressed the claim within the PAP, on 6 September 2022 (10 days before the expiry of the limitation period), they issued a Part 8 claim to prevent the defendants from accruing a limitation defence. That step was sanctioned by Practice Direction 49F, and in particular paragraph 16 thereof.[8]On 13 September 2022, Deputy District Judge Openshaw stayed the Part 8 claim (for a year) until 16 September 2023 on terms that, unless the claimant applied by letter to lift the stay and proceed to a Stage 3 hearing, or transfer the matter to Part 7, by 16 September 2023, the claim would be struck out. The order, which was made ex parte, also gave the defendants liberty to apply within 7 days of the service of the order to vary or set it aside.[9]The defendants did not apply under the liberty to apply provision. It was not until 13 June 2023, following further months of inactivity by the claimant within the PAP, but just three months before the stay was due to expire, that the defendants sought an order that: i) the stay be lifted; ii) unless the Stage 2 Settlement Pack was provided within 21 days, the Part 8 claim would be struck out. The defendants’ principal case was that the court had the necessary jurisdiction to make such an unless order pursuant to what is now CPR 3.1(2)(p) (formerly r.3.1(2)(m)), which provides that the court “may take any other step or make any other order for the purpose of managing the case and furthering the overriding objective…”[10]District Judge Baldwin heard that application on 5 July 2023. During exchanges with defendants’ counsel, he said that the court was not managing the proceedings under the PAP, and observed that “nobody has ever persuaded me that I have any power to do anything in relation to ordering anyone to move to Stage 2”. He went on to explore with counsel whether the defendant still wanted the stay lifted if he did not make any order relating to the provision of the Stage 2 Settlement Pack. DJ Baldwin expressed the view that if the stay was lifted, the case would then have to be transferred to CPR Part 7, which was not what the defendants wanted. In this way, the two limbs of the application stood or fell together.[11]In his short judgment, DJ Baldwin said:
“The difficulty with that submission [that he could order the provision of the Settlement Pack] in my judgment is that the court is not today seized with managing the case, or is not being asked by way of paragraph 2 of the application to manage this case as such. Firstly the case is stayed and remains stayed, unless the stay is lifted, until 16 September 2023. Secondly, in the context of that, I am singularly unpersuaded that any steps taken by parties within the context of a protocol, such as the one under consideration, are steps “for the purposes of managing the case”
. They are steps within the protocol but they are not steps which the court can have any role in ordering or forbidding, or asking parties to conduct themselves one way or another. It would be a quite different situation if, after the event, certain steps taken by parties then come under the microscope and if the court finds those steps to have been ill-judged, or to have been conducted in any way prejudicial to the case, particularly in the context of the incurring of costs, then sanctions can be applied. But in my judgment, in this situation, not least because the case remains stayed, I am singularly unpersuaded that I have the power to order anyone to do anything within the proceedings governed by the protocol, as opposed to the proceedings as they currently stand at court.”[12]The defendant appealed. On 17 October 2023 the claimant’s solicitors informed the defendants that the matter had exited the portal. The reason they gave for this – an alleged failure on the part of the defendants to make an interim payment – was erroneous, because the claimant’s solicitors had miscalculated the relevant date. That explained the subsequent order of District Judge Jenkinson on 23 February 2024 which stated that the claimant’s removal of the claim from the portal was “unreasonable” (see paragraph 17 below). In addition, by the time that the appeal was heard in January 2024, the claimant’s solicitors had applied to lift the stay and transfer the court proceedings to Part 7. That was again notwithstanding the fact that no Stage 2 Settlement Pack had ever been provided.[13]On 16 January 2024, His Honour Judge Wood KC dismissed the appeal. Judge Wood expressed a degree of sympathy for the defendants [34] and said it was quite right that the court should use such powers as do exist to compel parties to progress claims and not to be dilatory. However, he went on to conclude that the submission that DJ Baldwin had the relevant power was misconceived for several reasons.[14]First, he said that the functioning of the PAP depended entirely upon the preclusion of any external involvement or direction but compliance with the specific requirements set out in the protocols: [35]. Secondly, he said that the close connection between the CPR and the PAP did not necessarily mean that the court could step in and interfere when it was apparent that a party was not complying with the requirements to proceed swiftly through the Stages of the PAP: [37]. Thirdly, he said that the procedure provided by Practice Direction 49 paragraph 16 (that is to say the issuing of a protective writ for limitation purposes) was prescriptive:
“it anticipates those cases where a Claimant is seeking a further opportunity to comply with a relevant Protocol; but needs more time without prejudicing his or her position under the Limitation Act.”
However he noted at [38] that:
“…It is open to a defendant, when served with an order that has been made under paragraph 16.1, to apply to lift the stay or to contend that it was wrongly imposed, thus putting pressure on a Claimant who would have no alternative but to seek a transfer to Part 7 proceedings, as the claim would then fall out of the portal.”
[15]Fourthly, the judge said that the order of DDJ Openshaw did not engage the portal process and that it instead reflected what was required of a claimant under paragraph 16.7 of Practice Direction 49. He said that it was only at Stage 3 that the court became involved: [40]-[41] His conclusion on this point was in these terms:
“41. The Stage 3 process is the stage at which the court becomes involved. There is a world of difference between providing a direction which interferes with Stage 2, which is nothing to do with court involvement, and making an unless order in relation to the court proceedings, which requires the Claimant to do something about a stay which had been put in place, to attempt further opportunity for resolution within the portal.”
[16]Fifthly Judge Wood said by reference to CPR 3.1(2)(p) that the “case” as referred to in that Rule “can only be taken to mean the case that is before the court and not the pre-action process that is being followed.” [42].[17]On 23 February 2024 the claimant’s application to transfer the Part 8 claim to Part 7 was heard by District Judge Jenkinson and allowed, although the District Judge recorded in his order that the claimant “removing this case from the portal was unreasonable”. There have been a number of subsequent orders in the proceedings. The claim is valued at less than £10,000 and has been allocated to the fast track. It is due for trial in the next few weeks.[18]When granting permission for the second appeal, Laing LJ said:
“This appeal is arguable with a realistic prospect of success. It is arguable that District Judge might have conflated the process under the Protocol with the claim under Part 8. It may well be that the powers conferred by CPR 3 are not available if a matter is proceeding only under the Protocol, as, by definition, that process applies before there is an extant claim or action. However, the position may well be different if, in parallel to the proceedings under the Protocol, a claimant issues a claim under Part 8, even if the claimant immediately applies for a stay of that claim. Whether the power under part 3 would extend to requiring a claimant to take a step under the Protocol is a matter for argument. I note R's contention, in paragraph 3 of his statement of reasons, that there is no need for a power to compel the service of a settlement pack when an order granting a stay can contain an unless order requiring steps to be taken under the Protocol. This contention may support, rather than undermine, A’s case.”
[19]Subsequently, Laing LJ ordered that the claimant’s submission that the appeal was academic (which had been raised in the context of this appeal but not the earlier appeal to Judge Wood) would be dealt with at the hearing of the substantive appeal. The Law a). The PAP[20]The Pre-Action Protocol for Low Value PI Claims in RTAs can be found in the White Book starting at paragraph C13-001. The Preamble and Aims are said to be:
“Preamble 2.1 This Protocol describes the behaviour the court expects of the parties prior to the start of proceedings where a claimant claims damages valued at no more than the Protocol upper limit as a result of a personal injury sustained by that person in a road traffic accident. The Civil Procedure Rules 1998 enable the court to impose costs sanctions where it is not followed. Aims 3.1 The aim of this Protocol is to ensure that – (1) the defendant pays damages and costs using the process set out in the Protocol without the need for the claimant to start proceedings; (2) damages are paid within a reasonable time; and (3) the claimant’s legal representative receives the fixed costs at each appropriate stage.”

Aims

[21]Stage 1 is identified in section 6 of the PAP; Stage 2 is dealt with in section 7. Section 7.32, dealing with the Stage 2 Settlement Pack, makes plain what is to go into the Pack:
“7.32 The Stage 2 Settlement Pack must comprise – (1) The Stage 2 Settlement Pack Form; (2) A medical report or reports; (3) Evidence of pecuniary losses (4) Evidence of disbursements (for example the cost of any medical report); (4A) In a soft tissue injury claim, the invoice for the cost of obtaining the fixed cost medical report and any invoice for the cost of obtaining medical records; (5) Any non-medical expert report; (6) Any medical records/photographs served with medical reports; and (7) Any witness statements.”
[22]Paragraph 5.7 of the PAP expressly deals with the position where compliance with the PAP is not possible before the expiry of the limitation period. It expressly provides that the claimant “may start proceedings and apply to the court for an order to stay (i.e. suspend) the proceedings while the parties take steps to follow this protocol.” It tells the claimant to use the procedure under Part 8 in accordance with Practice Direction 8B, which has subsequently been renumbered as Practice Direction 49F.

(b) Practice Direction 49F

[23]Paragraph 1.1 explains that PD49F sets out the Stage 3 procedure for a claim where the parties have followed the PAP but are unable to agree the amount of damages payable at the end of Stage 2, or where “compliance with the relevant Protocol is not possible before the expiry of a Limitation Period and proceedings are started in accordance with paragraph 16 of this Practice Direction.”[24]Paragraph 2 of PD49F makes plain that the Part 8 procedure is modified by the Practice Direction and is subject to paragraph 2.2, which provides as follows:
“2.2 The claim will be determined by the court on the contents of the Court Proceedings Pack.

(c) ”

In this way, the claimant is required to do very little to commence this sort of Part 8 claim as compared to what might be called an ordinary Part 8 claim.[25]Paragraph 16 of PD49F is concerned with limitation. The relevant parts read as follows:
“16.1 Where compliance with the relevant Protocol is not possible before the expiry of a limitation period the claimant may start proceedings in accordance with paragraph 16.2. 16.2 The claimant must- (1) start proceedings under this Practice Direction; and (2) state on the claim form that- (a) the claim is for damages; and (b) a stay of proceedings is sought in order to comply with the relevant Protocol… 16.4 Where a claim is made under paragraph 16.1 the provisions in this Practice Direction, except paragraphs 1.2, 2.1, 2,2 and16.1 to 16.6, are disapplied. 16.5 Where— (1) a stay is granted by the court; (2) the parties have complied with the relevant Protocol; and (3) the claimant wishes to start the Stage 3 Procedure, the claimant must make an application to the court to lift the stay and request directions. 16.6 Where the court orders that the stay be lifted— (1) the provisions of this Practice Direction will apply; and (2) the claimant must— (a) amend the claim form in accordance with paragraph 5.2; and (b) file the documents in paragraph 6.1. 16.7 Where, during Stage I or Stage 2 of the relevant Protocol - (1) the claim no longer continues under that Protocol; and (2) the claimant wishes to start proceedings under Part 7, the claimant must make an application to the court to lift the stay and request directions.”
Where compliance with the relevant Protocol is not possible before the expiry of a limitation period the claimant may start proceedings in accordance with paragraph 16.2. The claimant must- (a) the claim is for damages; and (b) a stay of proceedings is sought in order to comply with the relevant Protocol… Where a claim is made under paragraph 16.1 the provisions in this Practice Direction, except paragraphs 1.2, 2.1, 2,2 and16.1 to 16.6, are disapplied. Where— (3) the claimant wishes to start the Stage 3 Procedure, the claimant must make an application to the court to lift the stay and request directions. Where the court orders that the stay be lifted— (a) amend the claim form in accordance with paragraph 5.2; and (b) file the documents in paragraph 6.1.

(c) Practice Direction re Pre Action Conduct and Protocols

[26]There is a general PD in connection with Pre-Action Conduct and Protocols, to be found at page 2647 of Volume 1 of the White Book 2025. Amongst other things, it provides that: “13. If a dispute proceeds to litigation, the court will expect the parties to have complied with a relevant pre-action protocol or this Practice Direction. The court will take into account non-compliance when giving directions for the management of proceedings (see CPR 3.1(4) to (6)) and when making orders for costs (see CPR 44.3(5)(a)). The court will consider whether all parties have complied in substance with the terms of the relevant pre-action protocol or this Practice Direction and is not likely to be concerned with minor or technical infringements, especially when the matter is urgent (for example an application for an injunction). 14. The court may decide that there has been a failure of compliance when a party has—(a) not provided sufficient information to enable the objectives in paragraph 3 to be met;(b) not acted within a time limit set out in a relevant protocol, or within a reasonable period; or(c) unreasonably refused to use a form of ADR, or failed to respond at all to an invitation to do so. 15.

(d) The CPR

[27]The principal part of the CPR relevant to the appeal is the list of the court’s powers at r.3.1(2). Relevant to this appeal are the following sub-rules (as per their current numbering):
“(2) Except where the Rules provide otherwise, the court may… (g) Stay the whole or part of proceedings of judgment either generally or until a specified date or event… (p) Take any other step to make any other order for the purpose of managing the case and furthering the overriding objective…”
In addition, Rule 3.1(4) provides: “(4) Where the court gives directions it will take into account whether or not a party has complied with the Practice Direction (Pre-Action Conduct) and any relevant pre-action protocol” (d). Case Law on the Interrelationship between the PAP and the CPR[28]There are a number of authorities which confirm the overlap between the jurisdiction of the court and the PAPs generally. In Jet2 Holidays Limited v Hughes [2019] EWCA Civ 1858; [2020] 1 WLR 844, this court found that, even though the relevant statements were made in pre-court proceedings, the rules within the CPR relating to contempt of court applied to such statements.[29]In Cable v Liverpool Victoria Insurance Co. Limited [2020] EWCA Civ 1015; [2020] 4 WLR 110, this court decided that the principles of abuse of process could apply to the procedure governed by this PAP. Reference was made to paragraph 13 of the Practice Direction on Pre-Action Conduct and Protocols (paragraph 26 above): it followed that non-compliance with a PAP could, in an extreme case, amount to an abuse of process. Amongst other things, I said: “58 Secondly, the RTA Protocol is a detailed set of rules designed to streamline the civil justice process and to ensure that many of these claims never even reach the stage of a formal commencement of proceedings. It would be counter-intuitive if non-compliance with those rules could be dismissed as being irrelevant to the court's overall control of civil business (including the ability to strike out for abuse of process) simply because they related to a period before the formal commencement of court proceedings. 59 Thirdly, the RTA and EL/PL Protocols are expressly interwoven into the CPR themselves. Claims under these low value protocols are the subject of specific provisions in section II of CPR Pt 36, concerned with offers to settle, and section III of CPR Pt 45, concerned with fixed costs. In addition, of course, Practice Direction 8B is expressly referable to these low value PAPs.

(e) Case Law on Academic Appeals

[30]The conventional approach to academic appeals is set out in Hutcheson v Popdog Limited (News Group Newspapers Limited, third party) [2011] EWCA Civ 1580: [2012] 1WLR 782 where Lord Neuberger said:
“15.Both the cases and general principle seem to suggest that, save in exceptional circumstances, three requirements have to be satisfied before an appeal, which is academic as between the parties, may (and I mean 'may') be allowed to proceed: (i) the court is satisfied that the appeal would raise a point of some general importance; (ii) the respondent to the appeal agrees to it proceeding, or is at least completely indemnified on costs and is not otherwise inappropriately prejudiced; (iii) the court is satisfied that both sides of the argument will be fully and properly ventilated.”
[31]That was setting out the test to be applied on an application for permission to appeal, rather than – as has occurred here – when the issue is considered at the appeal hearing itself. More recently, this court has adopted a rather more flexible approach to the exercise of its discretion to hear academic appeals: see in particular 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.

The Issues on Appeal

[32]The defendants’ sole ground of appeal is that DJ Baldwin (and subsequently Judge Wood) were wrong to find that the court had no power to make case management directions in respect of a claim that was waiting to go through Stage 2 of the PAP. Although that appeal arises from a point originally taken by DJ Baldwin (rather than an argument advanced by the claimant at that first hearing), the defendants’ position has been opposed by the claimant with increasing vigour over the course of these proceedings.[33]In addition, the claimant has raised a number of other matters, primarily by way of its Respondent’s Notice. The first complaint is that the appeal is academic now that the claim has been transferred out of the PAP. The second and third arguments are that the court either has no power, or should not exercise any power, to order disclosure of a privileged draft medical report and a settlement offer (which the claimant says would have been the effect of the unless order sought before DJ Baldwin). The fourth ground in the Respondent’s Notice is to the effect that the application for directions in respect of the Stage 2 Settlement Pack should have been dismissed in any event as a matter of the court’s discretion, given the claimant’s solicitor’s explanation for the delay.[34]I shall take first the submission that the appeal is academic. I shall then deal with the central question, which is the jurisdiction of the Court. The judgment concludes with briefer comments on the other issues raised in the Respondent’s Notice.

Is The Appeal Academic?

[35]I have concluded that the appeal is not academic or that, even if it is, it should be heard in any event. There are a number of reasons for that.[36]First, the issue of jurisdiction in these circumstances is a point of general importance: that was why permission for this second appeal was granted by Laing LJ in the first place. It is plain from DJ Baldwin’s observations that he is regularly asked to make directions that reach back into the PAP process but he never does so. All other things being equal, I consider that this court should decide that significant point of practice/procedure.[37]Secondly, by their very nature, it would be unusual for a complaint arising from acts or omissions during the PAP to be heard at a time when the claim was still within the PAP: the practical time constraints imposed by the PAP (and the Limitation Act) would suggest that, by the time of any appeal, whatever had happened to the claim, it would no longer be within the PAP. As a result, all appeals in such cases could be said to be academic so that, on the claimant’s approach, the points they raise would never be resolved. That would be an inappropriate approach to an important point of clarification about the operation of the Civil Procedure Rules.[38]Thirdly, requirements (i) and (iii) in Popdog are fulfilled in this case. Ground (ii) is not, but that is because – unlike many academic appeals - the substantive point is in issue between the parties. Moreover, this is a case where, notwithstanding its low value, there are likely to be detailed arguments about costs, given the unfortunate history of the claim when it was within the PAP (let alone the circumstances by which it exited the portal). I anticipate that the arguments on appeal, including the argument that the appeal is academic, are all thought to have potentially significant costs consequences later: that presumably explains why they have been fought so hard. Ground (ii) of Popdog therefore has no application in this case. To that extent at least, this case could be regarded as exceptional.[39]Fourthly, if the claimant had wanted to take this point, he should have taken it before Judge Wood. By the time of the first appeal hearing in January 2024, the claimant’s solicitors had already informed the defendants that the claim had exited the PAP. In addition they had applied to lift the stay and transfer the proceedings to Part 7. On the basis of the claimant’s submissions now, the appeal before Judge Wood was therefore academic. There is no explanation of why this point was not taken then. In consequence, this court was faced with oral argument on the point for the first time at the substantive hearing of a second appeal, when all the relevant costs had already been incurred.[40]Fifthly, the claimant has been found to have unreasonably removed the claim from the PAP. On one view, but for that unreasonable removal, the claim would still be in the PAP, and the appeal would not be academic. On that basis, the claimant is relying on his own wrong to run this argument, which is impermissible.[41]As an example of the labyrinthine arguments in this case, Mr Turner, on behalf of the claimant, suggested that the claim would have exited the PAP at a later date anyway, because a second interim payment had been sought for the cost of X-rays which would have taken the claim outside the PAP. He said that this was the consequence of paragraph 7.21 of the PAP, which provides that a claimant could request more than one interim payment where the claim was valued at more than £10,000. Mr Turner’s submission was that, implicitly, the rule prevented a second request for an interim payment in respect of a claim worth less than £10,000, and that the mere making of the request was enough to take the claim outside the PAP.[42]I profoundly disagree. The facts here were that a second interim payment was requested and agreed by the defendants. Both parties wanted to stay within the PAP. It would be an absurd construction of paragraph 7.21 if, contrary to the wishes of both parties and the aim and purpose of the PAP itself, the claim had automatically to exit the PAP, and go off to be determined under CPR Part 7, merely because an agreed request for an interim payment had been made. I do not believe that the PAP was intended to be read in such a self-defeating manner. Accordingly, I consider that there is force in the submission that the claimant is only able to argue that the appeal is academic because of his own unreasonable conduct in exiting the portal.[43]Finally and in any event, even if the appeal is academic, I consider that it would be contrary to the overriding objective for this court, at the last minute, to duck out of deciding the substantive issue because of a late argument that the appeal was academic I accept that the point was first raised on behalf of the claimant in response to the defendants’ application for permission to bring a second appeal but it is late because it was not taken before Judge Wood. . The parties have dealt with the substantive arguments on what is, as I have said, an important point. I would therefore follow the same approach as in the two recent cases in this court identified at paragraph 31 above.[44]For all those reasons therefore, I conclude that this court should deal with the substantive jurisdictional argument.

Did The Court Have Jurisdiction To Make The Orders Sought?

[45]In my view, DJ Baldwin did have the jurisdiction to make an order requiring the claimant to comply with his obligations in respect of the provision of the Stage 2 Settlement Pack. Both he and Judge Wood were therefore wrong to conclude otherwise. In addition, the flawed approach to the second limb of the application tainted the discussion with counsel as to whether the two limbs stood or fell together. The defendants did not want the claim to exit the PAP, much less that the claim be transferred to CPR Part 7. They wanted the stay to be lifted solely in order to get the claimant to comply with his obligations under the PAP. DJ Baldwin’s refusal to contemplate that course meant that the defendants were left without a substantive remedy.[46]The starting point of the analysis must be that the PAP process is self-contained and is not ordinarily subject to the court’s jurisdiction. It is a pre-action process; in other words, it involves a process that expressly functions before any court proceedings are issued. That is plain from paragraphs 2 and 3 of the PAP, set out at paragraph 20 above. It is all aimed at avoiding even the commencement of court proceedings.[47]Although there were some concerns about this PAP before it was introduced, it appears that – anecdotally at any rate – it is working well. That is because, in the vast majority of cases, both parties are happy to be within the portal and doing all they can to co-operate in order to bring about a settlement. In my view, co-operation is the key element of the PAP process. Each side needs to keep the other informed of progress, next steps and likely issues. The PAP does not work when a claim is started and then covered in a blanket of silence and inactivity.[48]However, if things go wrong under the PAP, I take the view that a party in the position of these defendants could probably not have issued freestanding court proceedings to seek orders requiring, for example, the speedy provision of a Stage 2 Settlement Pack. The PAP is a separate and self-contained process which does not generally fall to be policed by the court, and in those circumstances the court would probably not have had the necessary jurisdiction to make such orders. I do not consider that the Practice Direction concerned with Pre-Action Conduct and Protocols (paragraph 26 above) alters that view: paragraphs 13-15 of that PD, and certainly paragraph 15(b) which permits the court to order compliance with the PAP, presuppose that there are extant court proceedings, which require to be stayed to permit the PAP to be complied with. To that extent, therefore, absent the commencement of Part 8 proceedings, I do not disagree with the points made by Judge Wood in his first two reasons summarised at paragraph 14 above.[49]But the critical point is that, as the paragraphs of the PD concerned with Pre-Action Conduct and Protocols make clear, when the claimant expressly invokes the jurisdiction of the court by issuing a claim form, the position changes. Once that has happened, the court has the jurisdiction to deal with the Part 8 claim in accordance with the CPR. That demonstrates why Judge Wood’s fifth reason (paragraph 16 above) was wrong: the Part 8 claim was ‘the case’ for the purposes of CPR 3.1(2)(p) and, as explained below, that case may require a consideration of the progress of the claim in the PAP, and the making of consequential directions.[50]Mr Turner’s submission was that the court’s jurisdiction in these circumstances was very limited. He said that, once a claimant has issued the protective proceedings under Part 8, the court will automatically grant a stay: he called that an administrative function, which did not and should not involve any inquiry by the court into the merits of either the underlying claim or the request for a stay. His suggestion was that it was only when the original stay expired – on the facts of this case, a year later – that the court should consider the merits of the parties’ respective positions. That approach echoes Judge Wood’s fourth reason summarised at paragraph 15 above.[51]I disagree. Whilst pursuant to paragraph 16 of PD49F the court will usually, in the first instance, grant a stay on an ex parte basis, that mechanism is purely for administrative convenience in these low value PAP cases: see [14] of Cable. The ‘liberty to apply’ provision means that both sides can always take the question of a stay back to court to argue for a variation of the earlier order, or in an extreme case, that there should be no stay at all. So whilst the initial form of order is made ex parte for administrative convenience, the order for a stay itself will, in an appropriate case, be the subject of proper debate and reconsideration. When that happens, the court is obliged to consider the stay and its duration by reference to the merits. There is no automatic entitlement to a stay of a particular length; nor is the grant of a stay a purely administrative function on the part of the court. As paragraph 16.5.1 of PD49F makes plain, a stay may be granted by the court, but the PD does not suggest that the right to such a stay is automatic.[52]Any debate about whether or not there should be a stay, and if so, how long it should be is, in reality, a debate about the degree of the parties’ non-compliance with the PAP. A stay will only be necessary because the PAP has not been complied with. The length of any stay will be dictated by the number of steps within the PAP which have not yet been taken. Accordingly, the granting of a stay, and the fixing of the period for the stay, are simply indirect ways of regulating the parties’ conduct under the PAP. For that reason, the stance taken by DJ Baldwin, and Judge Wood’s third reason (paragraph 14 above) are erroneous I should add that, as noted in paragraph 14 above, Judge Wood saw the defendants’ remedy of a short stay or no stay at all as a way of putting pressure on the claimant, so that the claim fell out of the portal and was transferred to Part 7. But defendantsdo not generally want the claim to fall out of the portal and go to court. They want it to stay in the portal so that, if possible, it can be resolved there. But since,on this premise,it has already taken 3 years to get this far, defendants (not unreasonably) want the claimant now to get on with the PAP process. . The mechanism of the stay involves the court’s indirect control of the PAP process, so to that extent DDJ Openshaw’s order did engage with the portal process. How then could more direct control, by making orders requiring particular steps to be taken by particular dates, be in some way outside the court’s jurisdiction?[53]Mr Turner submitted that this distinction was important: he accepted that the court could make indirect orders by way of a stay that affected the parties’ conduct within the PAP, but argued that it could not make direct orders of the kind sought by the defendants. But there is no rational justification for such a distinction. If a party has not taken a step or steps within the PAP, and that is the reason that he or she seeks a stay of the Part 8 proceedings, then there is no sensible reason why that party should not be ordered by the court to take the missing step or steps.[54]Paragraphs 13-15 of the Practice Direction on Pre-Action Conduct and Protocols (paragraph 26 above) then become directly relevant. Those paragraphs expressly envisage that the court may order that “the proceedings are stayed whilst particular steps are taken to comply with the PAP”. That was the very basis of the order sought by the defendants in this case. The detail of that order was never considered by DJ Baldwin because he took the view that he did not have the jurisdiction to make an order at all. For reasons that I have given, he was wrong to reach that conclusion. I note that these paragraphs of the Practice Direction were not drawn to the attention of either DJ Baldwin or Judge Wood.[55]During the course of the appeal hearing, my lady, Lady Justice Andrews, asked Mr Turner why a court could not impose a conditional stay in the normal way, ordering a stay on terms that, for example, the claimant produce the Settlement Pack within say, two months. Mr Turner’s answer was to suggest that this was impermissible, because the provisions of PD49F make no express reference to it. In my view, that is not an answer. The relevant paragraphs in PD49F simply talk about the possibility of a stay: there is nothing there which excludes the court’s usual power to make the stay conditional on the happening of particular events. Rule 3.1(2)(g) (paragraph 27 above) also envisages the possibility of such an order. That would have been another, entirely conventional, route by which the court could legitimately have given the defendants what they wanted.[56]It is not necessary for the purposes of this appeal to consider the detail of the order sought by the defendants. That is because, although they seek to set aside the order of DJ Baldwin, they do not seek an order in the terms of their original application. That is unsurprising given the fact that, for better or for worse, the claim is no longer in the PAP. But for the avoidance of doubt, I consider that the precise terms of the order sought were too draconian. The 21 day time limit was too short, and there is some force in the proposition that it was too extreme to seek an unless order first time round. I do not accept Mr O’Dwyer’s submission that, in some way, this was not an order compelling the claimant to do something. It plainly was. But whilst the precise terms went too far, a case management order of this type was permissible, for the reasons I have given. The problem was that there was never any debate about the detail of the order sought, because the judge had ruled out making such an order as a matter of principle.[57]Finally, I should deal with Mr Turner’s ‘floodgates’ argument. His suggestion was that, if the appeal was allowed, this would greatly add to the workload of District Judges up and down the country because they would now be policing the parties in the PAP process in a way that they had not done before. He also said that the seeking and making of such orders would undermine the cost effectiveness of the PAP.[58]Again, I am unable to accept those submissions. I make clear that the last thing this court wants is to increase the workload of District Judges. To that end, I have already said that, in my view, when the claim is solely within the PAP, the court probably does not have the power to make orders regulating the progress or conduct of the claim within the PAP. It is only where the claimant has sought the assistance of the court by commencing Part 8 proceedings that the court may become involved in such matters. Even then, if the parties have properly co-operated, such that there are, for example, just one or two steps remaining to be taken within the PAP, the parties should be able to agree a timetable for those steps and therefore agree a sensible length of any stay.[59]So as I see it, it is only where, as here, there has been a wholesale failure to take any of the necessary steps under the PAP, and there are now Part 8 proceedings, that one or other of the parties may seek directions designed to ensure progress within the PAP process. It should only be in such exceptional cases that the court will be required to make orders requiring the defaulting party to take the outstanding steps under the PAP. Even then, the court’s focus will be on getting the parties to comply with the PAP so that, all other things being equal, the claim remains within the portal and the Part 8 proceedings are ultimately rendered unnecessary.[60]The argument that seeking such directions would in some way undermine the cost effectiveness of the PAP is misconceived. In the circumstances of a case like this, a claimant would always have been obliged to issue Part 8 proceedings in order to protect his or her position on limitation. The court would be seized of the matter and, if required by one or both of the parties, would be obliged to rule on the length of the stay. Any additional order requiring a particular step to be taken in the PAP would save costs, not add to them.[61]For all those reasons, therefore, I consider that, in the circumstances of this case, DJ Baldwin and Judge Wood were wrong to draw a distinction between the PAP process and the Part 8 proceedings. In my view, once Part 8 proceedings are up and running, 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. I would therefore allow the defendant’s appeal.

The Other Matters Arising From The Respondent’s Notice

[62]Mr Turner’s principal remaining argument was that the effect of the 21 day unless order that was sought would have meant that the claimant would have had to provide a draft medical report rather than a final medical report, and would have had to disclose proposed settlement figures when his case had not been fully prepared. Mr Turner said that it would have been wrong in principle and unfair for the court to compel the claimant to disclose such material.[63]The first point to make is that Mr Turner was wrong repeatedly to refer to the fact that the defendants were seeking to ‘compel’ the claimant to do something that he otherwise would not have to do. The claimant’s obligations under the PAP were clear. Those included the provision of a Stage 2 Settlement Pack. All that the defendants were seeking to do was to get the claimant to comply with those obligations.[64]I have already made the point that, in my view, the 21 days was unreasonable. A longer period would have been appropriate: the claimant would have been allowed time to comply properly with Stage 2, and therefore time to obtain and approve the final medical report. I also accept that the form of order may have been too draconian: perhaps a final order rather than an unless order was appropriate, since this was the first time that the issue had been ventilated in court. But beyond that, the claimant’s objections to the proposed order fall away: some form of order requiring compliance with Stage 2 was not only within the court’s jurisdiction but, in my view, should have been made.[65]As to discretion, I take the view that what went wrong at Stage 2 of the PAP can be laid firmly at the door of the claimant. He started the PAP process without having any of the necessary preparatory steps in place. There is no evidence that, between the admission of liability on 30 July 2020, and the Part 8 application issue on 6 September 2022, the claimant did anything at all to progress the claim in the PAP. On the contrary, the first medical examination did not take place until January 2023, which was outside the limitation period.[66]The claimant’s evidence before DJ Baldwin was in the form of a witness statement from his solicitor, Ms Rebecca Ryding. This identified the dates of the first medical examination (January 2023) and the draft medical report (May 2023). She sought to blame the defendants for the delays, saying that an email address at the claimant’s solicitors that the defendants had been using for some but not all of their chasing communications did not exist, and that the handler of the claimant’s claim at his solicitors had gone on long term leave. But in my view, these points do not excuse the delay: on the contrary, they highlight the claimant’s default. It is for a claimant to progress his claim, and for his solicitors proactively to keep the defendants informed of any delays or problems, rather than waiting to be chased. It was for the claimant’s solicitors to find another person to deal with the day-to-day running of his claim if the original handler was unwell.[67]In this way, I consider that the claimant used the PD49F procedure to protect himself on limitation, having taken no steps at all (without any justification) under Stage 2 of the PAP. That default was then compounded by the unreasonable removal of the claim from the PAP, as recorded by DJ Jenkinson. The defendants may have sought too draconian an order to get the claimant to progress his claim, but that should not distract attention away from the simple proposition that the delays in the progression of this claim (both within the PAP and subsequently) were the responsibility of the claimant. Any discretion should have been exercised in accordance with those factors.

Conclusion

[68]For the reasons that I have given, if my Lady and my Lord agree, I would allow this appeal.

LADY JUSTICE ANDREWS:

[69]I agree, and only wish to add a few words of my own on the subject of limitation and the stay of the Part 8 proceedings to enable the three stages of the PAP to be completed. The PAP is designed to provide the parties with a cheap and swift dispute resolution process. That is a salutary aim. But even though liability is admitted at Stage 1, low value claims of this type are subject to the same limitation period as any other claim for personal injury. PD49F para 1.1(3) and para 16 are aimed at the situation where compliance with the PAP “is not possible” before the expiry of the limitation period, not at the situation where compliance would have been possible had the claimant taken reasonable steps to progress the matter. The problem is that the defendant, faced with a claimant who is not progressing Stage 2, may not want to force them to commence Part 7 proceedings, because that would increase the defendant’s exposure to costs which they may not recover.[70]The obvious intention of the procedural provisions enabling the claimant to protect the position on limitation by issuing the Part 8 claim and seeking a stay, is to afford the parties the opportunity to complete their efforts to settle the claim within the PAP instead of forcing them to litigate the issue of quantum. However, this procedure does not relieve the claimant of the responsibility to progress the claim.[71]In general, once a limitation period has expired, and a protective claim has been issued, a claimant in a personal injury case would be forced to comply with the usual procedural timetable for progressing that claim, and would risk sanctions if they failed. They would not be afforded the indulgence of a lengthy stay of the proceedings, let alone an indefinite one.[72]I understand, of course, that claimants may have to wait for a long time before medical examinations, X-rays or other tests can be carried out and a prognosis reached, and that the timing of such matters may be outside their control. The defendant will then need time to respond to the Stage 2 Settlement Pack. That is why an initial stay of 12 months may be reasonable. In a case in which it is too long, the defendant would normally have an opportunity to go back to the court within the time prescribed under the “liberty to apply” provision in the order (see [51] above) and contend that the stay should be shorter or that conditions should be imposed upon it. In those circumstances the court plainly has the power to give directions to try and secure compliance by the claimant with the PAP.[73]If the defendant does not take that opportunity, in my judgment it would rarely be justifiable for them to apply at some later time before the stay expires for an order seeking compliance with the PAP within a shorter period than the stay permits, but the court does have jurisdiction to entertain such an application, for the reasons explained by my lord, Lord Justice Coulson. The appropriate time for arguing about how much further time, if any, the claimant should be afforded would normally be when an application is made to extend the stay (to avoid the consequences of the Part 8 Claim being struck out). That does not mean that the court is powerless to consider the question of compliance with the PAP before the stay expires in the rare case in which it would be appropriate to do so, such as this case.[74]In the course of the hearing we were told that in practice stays granted under paragraph 16.2 of PD 49F are often renewed as a matter of course, sometimes more than once, and that some district judges even grant indefinite stays. They should not be doing this. The effect, in practical terms, is to afford a dilatory claimant a longer time to bring proceedings in court than the Limitation Act permits. There is no reason why claimants with low value claims should be granted that indulgence when those who have suffered more serious injuries would not be. Whilst, like Lord Justice Coulson, I have no desire to increase the workload of busy district judges, lengthy periods of inactivity by claimants are contrary to the rationale of the PAP and should be discouraged. The renewal of the stay should never be treated as a rubber-stamping exercise and an indefinite stay would rarely, if ever, be justified. LORD JUSTICE HOLGATE:[75]I agree with both judgments.