Grovit v Doctor

A court may strike out or stay proceedings under its inherent jurisdiction to prevent abuse of process. That jurisdiction operates independently of the rules governing dismissal for want of prosecution.

Commencing or maintaining litigation without intending to bring it to a conclusion can amount to abuse. Inactivity may prove that intention. Once such abuse is established, the court need not also require proof of intentional and contumelious default, or of inordinate and inexcusable delay causing serious prejudice or a substantial fair-trial risk. If justice requires, as it frequently will, the action may be dismissed. The decision left open whether insufficient elements from the separate want-of-prosecution limbs may be combined into a hybrid ground for dismissal.

The appellant's action had been reduced to a claim for damages for libel arising from a written employment reference. After the last procedural activity in September 1990, the appellant took no further step for more than two years despite invitations from the defendants either to proceed or abandon the claim.

A Deputy High Court judge found the delay inordinate and inexcusable. He also found that the appellant had no interest in bringing the action to trial, struck out the writ and statement of claim, and dismissed the action for want of prosecution. The Court of Appeal dismissed the appeal. Its reasoning combined findings concerning abuse of process, anxiety and prejudice.

The central issue before the House was whether the action could be dismissed without proof of the serious prejudice required by the conventional want-of-prosecution test. The respondents were unrepresented, which also affected whether the House should decide the proposed hybrid ground for dismissal.

1. Disposition. Lord Woolf delivered the leading speech. Lord Goff of Chieveley, Lord Nicholls of Birkenhead, Lord Steyn and Lord Clyde agreed with his reasons. The House refused the appellant's late request for leave to withdraw the appeal and unanimously dismissed the appeal with costs.
2. Separate jurisdiction to prevent abuse. Per Lord Woolf, prevention of abuse of process has long been an independent ground for striking out or staying proceedings under the court's inherent jurisdiction. The two limbs identified in Birkett v. James [1978] A.C. 297 govern dismissal for want of prosecution. They do not displace the separate jurisdiction to prevent abuse.
3. Litigation maintained without an intention to proceed. Per Lord Woolf, commencing or continuing litigation without intending to bring it to a conclusion can amount to abuse of process. A claimant's inactivity may provide the evidence of that intention. The Deputy High Court judge and the Court of Appeal were entitled to find that the appellant had maintained the libel proceedings despite having no intention of bringing them to trial.
4. Consequences of the abuse. Per Lord Woolf, once that finding had been made, the court was entitled to dismiss the action if justice required. It was unnecessary also to establish either limb of the Birkett v. James test, including the requirement under the second limb for serious prejudice or a substantial risk that a fair trial was impossible.
5. Questions left open and procedural guidance. Lord Woolf did not decide whether facts falling short of each separate Birkett v. James limb could be combined into a hybrid ground for dismissal. That question should await a case in which both sides were fully represented. Consistently with the discussion in Department of Transport v. Chris Smaller Transport Ltd. [1989] A.C. 1197, the appeal was not a suitable vehicle for making substantial inroads into the established principles. Lord Woolf further observed that courts should make unless orders more readily. Such orders place the burden on the claimant to justify continuation after non-compliance.

1. House of Lords: The House unanimously dismissed the appeal with costs. It upheld dismissal on the independent ground that maintaining proceedings without intending to bring them to trial was an abuse of process.
2. Court of Appeal: On 28 October 1993, Glidewell and Evans LJJ dismissed the appeal. The judgments relied on abuse of process, anxiety or prejudice, and an overall assessment involving the two established limbs for dismissal for want of prosecution.
3. High Court: On 30 October 1992, John Crowley QC, sitting as a Deputy High Court judge, struck out the writ and statement of claim and dismissed the action for want of prosecution.