Reckitt Benkiser UK v Home Pairfum Ltd & Ors

The court may strike out a prima facie valid statutory cause of action where its pursuit is an abuse of process. The power extends to claims created by legislation, but striking out is a last resort. The court should tailor its response to the circumstances and use a less drastic measure where that can address the abuse.

A claim is not abusive merely because its value is small or because it overlaps with issues in the main action. A proposed joinder may properly be refused where its principal purpose is to cause improper discomfort or friction, while leaving the claimant free to bring separate proceedings.

The claimant brought proceedings alleging infringement of trade marks, Community trade marks, registered designs and design right, together with passing off and breach of confidence. The defendants counterclaimed under the threats legislation and sought to join the claimant’s solicitors as Part 20 defendants.

The claimant applied to strike out the threats counterclaim under CPR 3.4(2)(b) and relied on the court’s case-management powers. The defendants opposed strike-out and applied for joinder. The central issues were whether the statutory threats claim was abusive or disproportionate, and whether the solicitors should be joined.

1. Power to strike out. The court accepted, following Wallis v Valentine [2002] EWCA (Civ) 1034, that the CPR may permit the court to strike out a prima facie valid cause of action, including one created by statute, where proceedings constitute an abuse of process. The relevant principles from Broxton v McClelland [1995] EMLR 485 were adopted.
2. Proportionate response. The power must be exercised with regard to the overriding objective and tailored to the circumstances. Strike-out of a valid claim is the last option. If the abuse can be addressed by a less draconian course, that course should be preferred.
3. Threats counterclaim. The counterclaim was not abusive merely because the likely damages were small or because many issues overlapped with the main trial. The additional time and cost would be minimal. The possibility of useful injunctive relief, including protection against threats to suppliers or customers, could not be discounted. It was therefore more efficient to determine the threats issues at the trial rather than strike out or stay the counterclaim.
4. Joinder of solicitors. The proposed joinder was materially different. Although retaliation was unobjectionable, the likely purpose of making the claimant’s solicitors uncomfortable and creating friction in their relationship with the claimant was illegitimate. The application to join them was refused. This did not prevent separate proceedings, although such proceedings would ordinarily be expected only if a genuine need arose or limitation required preservation of the claim.

The claimant’s strike-out application and the defendants’ joinder application both failed.