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Should claims be stayed pending changes in the law?


As we wait for the judgments of the UK Supreme Court in both Canada Square Operations Ltd v Potter [2021] EWCA Civ 339 (‘Potter’) and Smith & Burrell v Royal Bank of Scotland Plc [2021] EWCA Civ 1832 (‘Smith’) to be handed down, there have been some Judges adjourning or staying PPI hearings pending the outcomes. Is this something that the court can do, and more importantly, should it?


The court’s general powers of case management provide the power to stay the whole or part of any proceedings or judgment either generally or until a specified date, pursuant to CPR 3.1(2)(f) and section 49(3) of the Senior Courts Act 1981. The court’s “jurisdiction to stay proceedings is unfettered and depends only on the exercise of the court's jurisdiction in the interests of justice.”[1]

The principles applicable to a stay application were summarised in Hosking and another v Apax Partners LLP [2016] EWHC 1986 (Ch) which highlights the following as a starting point or initial framework:

  1. The burden lies on the applicant seeking a stay to demonstrate thoroughly by cogent evidence that there are sound reasons for a stay.
  2. Where the claimant itself has voluntarily brought the two sets of proceedings, a stay should only be granted in very rare circumstances.[2]
  3. A stay should only be granted where there are ‘very strong reasons for doing so and the benefits which are likely to result from doing so clearly outweigh any disadvantage to the plaintiff’[3]
  4. A particularly compelling case would be required for a stay to be granted to the Claimant years after he has brought the claim.[4]
  5. A stay will not, at least in general, be appropriate if the other proceedings will not even bind the parties to the action stayed, let alone finally resolve all the issues in the case to be stayed.[5]
  6. A stay will not, at least in general, be appropriate if the parties to the other proceedings are not the same.
  7. A Defendant against whom a serious allegation (such as deceit) is made is entitled to an expeditious hearing and should not be left for years waiting for the outcome of another case over which he (and the court) has no control.
  8. In exercising its case management powers, the court must, of course, have regard to the overriding objective which, as defined in CPR 1.1, involves dealing with cases justly, that is to say (among other things) expeditiously, fairly and proportionately.

In Hoskin the stay was pending outcome in parallel proceedings in the USA and in Reichold the stay was pending an arbitration between the claimant and a third party. However, the Court of Appeal in Re Yates' Settlement Trusts [1954] 1 WLR 564 specifically addressed the question of whether to grant an adjournment pending the outcome of an appeal on a similar matter. Evershed M.R stated at 567:

“It may well be that if an important case is known to be subject to appeal to the House of Lords, or to appeal from a judge of first instance to the Court of Appeal, a judge may reasonably and properly think that it is in the public interest not to decide another similar case until the result of the case under appeal has become known: whether he should so decide depends very much on all the circumstances of the particular cases.”

The unique set of circumstances in that case were that it was originally an application for the approval of the court to a scheme of family arrangement, where the settlor was in his eighties and in fragile health. It was necessary for the settlor to be alive when the scheme was approved, that is, if it was going to be approved. Therefore, whilst an adjournment or stay was clearly within the discretion of the court ‘the injustice that might result to the parties if the adjournment was continued’ warranted not granting the adjournment.

So, whilst it is clear that the court does have the power to grant an adjournment or stay proceedings pending the outcome in Potter and Smith, the question then becomes whether, in all of the circumstances, it should.


The natural starting point for why the court should not grant a stay or an adjournment, is that the court should apply the law as it currently stands, not as it may stand in the future. Denning L.J in Yates, whilst agreeing with the Master of the Rolls in his judgment, states that the first instance Judge, ‘should have applied the law as there laid down, without any misgivings about what the House of Lords might hereafter say.’ This aligns with the reasoning set out in Willow Wren Canal Carrying Co Ltd v British Transport Commission [1956] 1 W.L.R. 213 in which it was held that it is the duty of the court to see that parties have their cases tried as they were entitled to, and the court could not take into account the possible effect of a Bill before Parliament. Upjohn J noted that the court would ‘not look at possible future legislation’ and went on to state that it was ‘useless speculation’ to try to ‘formulate or guess’ what Parliament is going to do in the future. If ‘legislation’ were swapped with ‘case law’, and ‘Parliament’ with the ‘UK Supreme Court’, the logic resonates equally.

How far can the court interfere with a litigant’s right to have their case tried on the basis of the law as it currently stands? We all know that the incoming Renters (Reform) Bill is set to abolish s.21 possession claims; does that mean that the court should prevent landlords from currently obtaining possession on this ground? Such an approach would appear absurd, but it is the natural conclusion where the court fails to appreciate the importance of applying the law without reference to potential changes and perceived inequality.

In Johns v Solent SD Ltd [2008] EWCA Civ 790, Smith L.J considered whether to grant a stay or allow the claim to proceed to trial. It was held that the balance of prejudice weighed heavily in favour of staying the claims. If the claim were to proceed to trial the claim would be ‘snuffed out’, because the claim could not succeed if the law as it stood at the time was applied. Smith L.J also considered the prejudice to the defendant of having a stayed claim hanging above their head for a considerable period of time and importantly, that it may be deprived of a statutory defence, but nevertheless stayed the claim. It is not difficult to see the strength in the argument that it would have been unfair for the claimant to have had their claim effectively “snuffed out”, only for the law to then fall in their favour a short time thereafter. However, that is the situation for all the cases that were decided prior to the later appeal to the ECJ. Similarly, Judges up and down the country have been making decisions in these PPI final hearings for some time now, without the need to stay them pending the decision of the Supreme Court. How can it possibly be fair for some parties to receive the potential benefit of a stay where others have not?

It must also be remembered that the court is required to exercise its discretion in line with the overriding objective, meaning it should deal with cases justly and at a proportionate cost, including, among other things, saving expense, dealing with cases expeditiously and fairly and allotting an appropriate share of the court’s resources. The courts are, on a daily basis, dealing with a large number of PPI cases. Staying them pending the outcomes of Potter and Smith does nothing to assist the court in working through the already significant backlog. Staying these cases is simply ‘kicking the can down the road’ and prevents there from being any form of finality for either party.


Whilst it is clear that Judges can, and indeed have, stayed or adjourned claims pending the outcome of appeals for similar matters, it does not necessarily follow that it is in the interests of justice to do so. The law is not static and therefore changes in the law do produce different outcomes for similar cases depending on when the matter was tried. But this is an unavoidable consequence of progression in the law and one that does not negate the need for Judges to apply the law as it presently stands. Whilst it may resolve unfairness for one party, it produces clear prejudice for the opposing party, as well as further unfairness for similar parties who did not benefit from the same treatment. What is more important that remedying every potential unfairness in litigation is consistency and clarity in the application of the law, which can only be achieved through applying the law as it stands, regardless of whether it is likely to change in the future.

This article was written by 25 Canada Square Chambers First-Six Pupil Alannah Kavanagh.



[1] Reichhold Norway ASA v Goldman Sachs International [1999] 1 All ER (Comm) 40

[2] Ledra Fishers v Turner [2003] EWHC 1049 Ch, paragraphs 14 and 38; Reichhold Norway ASA v Goldman Sachs [2000] 1 WLR 173 at pp 179-180

[3] Reichhold Norway ASA v Goldman Sachs International [1999] 1 All ER (Comm) 40 Moore-Bick J at first instance said (at pp.47J – 48a)

[4] Ledra Fishers v Turner [2003] EWHC 1049 Ch, paragraph 39

[5] Klöckner Holdings GmbH v Klöckner Beteiligungs GmbH [2005] EWHC 1453 (Comm)

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