Grovit and Others v. Doctor and Others

This appeal concerned the court's power to strike out proceedings for want of prosecution and the separate ground of "abuse of process." The House of Lords affirmed that the established approach in Birkett v James must be treated with caution but remains authoritative: proceedings may be struck out for (1) intentional and contumelious default or abuse of process, or (2) inordinate and inexcusable delay which causes serious prejudice to the defendant or creates a substantial risk of an unfair trial. The court held that deliberately maintaining litigation which the plaintiff has no intention of bringing to trial is an abuse of process and, when established, justifies striking out and dismissing the action even without establishing prejudice under the second limb of Birkett. The court declined to alter the Diplock approach in this appeal and left open questions about hybrid approaches for a case fully argued on both sides.

Background and facts:

• The action was commenced in August 1989 and originally included multiple causes of action; by 1990 the claim was limited to libel against two respondents who were litigating in person. The writ and statement of claim were struck out by Deputy High Court Judge Crowley Q.C. on 30 October 1992 for want of prosecution. The Court of Appeal (Glidewell and Evans L.JJ.) dismissed the appellant's appeal on 28 October 1993. The appellant appealed to the House of Lords.
• The pleaded libel derived from a reference prepared in August 1989. Over two years elapsed with minimal activity by the plaintiff; correspondence from defendants’ solicitors had invited the plaintiff to proceed or abandon the case. The plaintiff’s solicitor averred that other related High Court litigation occupied the plaintiff's attention.

Nature of the application and issues:

• (i) Nature of the claim/application: the appellant sought to overturn the striking out of the writ and statement of claim and to restore the libel action; the respondents had sought dismissal for want of prosecution.
• (ii) Issues framed by the court: whether inordinate and inexcusable delay can be treated as sufficient prejudice or as part of a hybrid ground combining delay and abuse of process; whether maintaining litigation without intention to pursue it constitutes abuse of process sufficient to justify striking out without demonstrating the prejudice required by Birkett v James.
• (iii) Court’s reasoning: the House of Lords concluded that the deputy judge and Court of Appeal were entitled to find that the appellant had shown no real interest in pursuing the libel action and that maintaining the proceedings in such circumstances amounted to an abuse of process. The House upheld the view that abuse of process is a distinct ground for striking out and that where it is established the court may dismiss proceedings without strictly satisfying the two limbs identified in Birkett. The law laid down in Birkett was not overruled; the Lords preferred to leave any change in principle to a case where the point was fully argued. The judgment also commented on procedural remedies short of striking out (for example peremptory or "unless" orders and the need for effective case management).

Procedural posture:

• The appeal to the House of Lords followed dismissal in the Court of Appeal after the Deputy High Court Judge ordered strike out for want of prosecution.

Appeal dismissed. The House of Lords held that the appellant’s prolonged inactivity and maintenance of proceedings despite having no intention to pursue them amounted to an abuse of process; that abuse justified striking out and dismissing the action without the need to prove the prejudice required by the second limb of Birkett v James. The court declined to alter the established Diplock approach in this appeal and left wider procedural reform and any change in principles to other proceedings.

Deputy High Court Judge Crowley Q.C. ordered strike out for want of prosecution (30 October 1992). The Court of Appeal (Glidewell and Evans L.JJ.) dismissed the appellant's appeal (28 October 1993). The House of Lords dismissed the further appeal (24 April 1997) ([1997] UKHL 13).