Choraria v Sethia

Inordinate and inexcusable delay, however great, does not alone amount to abuse of process. Delay accompanied by complete or wholesale disregard of court rules or orders, with full awareness or recklessness as to the consequences, may constitute abuse. If it is fair to do so, the action may be struck out without proof of prejudice to the defendant or that a fair trial has become impossible. Disregard of a non-peremptory order may be especially serious. The principle may be treated as falling within the first limb of Birkett v James or as an independent abuse-of-process jurisdiction.

The claimant brought proceedings for repayment of an alleged 1982 loan and payment for gold allegedly sold to the defendant. He relied on a written acknowledgement dated 23 December 1986 to avoid limitation difficulties. The defendant denied the transactions and alleged that the acknowledgement was forged.

Deputy Master Weir dismissed the action for want of prosecution on 4 April 1996. On 12 November 1996, Rimer J reversed that decision. The defendant appealed, relying principally on Grovit v Doctor and Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd. The central issue was whether, despite the assumed absence of relevant prejudice and the continued possibility of a fair trial, the claimant’s cumulative delay and breaches amounted to abuse of process.

1. Appeal and governing principles. The appeal was allowed unanimously. Lord Justice Nourse held that delay alone, however prolonged, does not constitute abuse of process. The court accepted the ordinary distinction in Birkett v James [1978] AC 297 between intentional and contumelious default and inordinate and inexcusable delay involving the relevant prejudice.
2. Independent abuse of process. Following the development from Culbert v Stephen G Westwell & Co Ltd [1992] 2 PIQR 54, through Grovit v Doctor [1997] 1 WLR 640, to Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd (16th December 1997 - unreported), the court held that wholesale disregard of the rules, coupled with awareness of the consequences, can amount to abuse. The jurisdiction may be regarded as part of the first limb of Birkett or as an independent ground. The distinction is immaterial. Strike-out does not require proof of prejudice or impossibility of a fair trial, provided that dismissal is fair.
3. Application. The claimant had repeatedly delayed, failed to answer interrogatories until three orders had been made, served documents years late, taken no steps for substantial periods, and failed to set down the action for more than a year after an order requiring it. His witness statements were still not lodged. The cumulative conduct, particularly after the first strike-out application had made the consequences clear, amounted to wholesale disregard. Lord Justice Nourse regarded the defaults as intentional and contumelious because the claimant had acted recklessly as to their consequences.
4. Concurrence and appellate intervention. Lord Justice Pill held that, when the master declined to strike out against the background of the setting-down order, compliance could be assumed and an express undertaking was unnecessary. The later failure was an affront to the court. The decision of Rimer J, although discretionary, could be revisited because it was not made in accordance with the law as subsequently declared. Lord Justice Thorpe agreed with both judgments.
5. Order. Rimer J’s order was set aside. The action was dismissed, and the claimant was ordered to pay the defendant’s costs of the action through the appeal.

1. Court of Appeal (Civil Division): Appeal allowed; Rimer J’s order set aside; action dismissed; claimant ordered to pay the defendant’s costs through the appeal.
2. High Court of Justice, Chancery Division: On 12 November 1996, Rimer J reversed Deputy Master Weir’s dismissal of the action for want of prosecution.
3. Deputy Master: On 4 April 1996, Deputy Master Weir dismissed the action for want of prosecution.