Marine Rescue Technologies Ltd & Ors v Burchill & Anor

Strike-out for delay is a discretionary and proportionate remedy. The court must assess the length and reasons for delay, compliance with orders, prejudice, effects on trial and other litigation, each party’s conduct, and any special factors. A defendant should not remain passive and later rely on delay which it could have reduced by seeking directions or pursuing the case. Prejudice is important, but strike-out may exceptionally be justified without prejudice after exceptionally prolonged inactivity. The remedy is inappropriate where delay is moderate, the claimant continues to pursue the litigation, and the alleged forensic prejudice is speculative or substantially attributable to the defendant.

The defendants applied to strike out claims concerning alleged design right, patent and trade mark infringement, passing off and conversion. The application relied on the court’s inherent jurisdiction and CPR 3.1(2) and CPR 3.4(2). The defendants argued that the claimants’ delays, non-compliance with directions and the loss or unavailability of witnesses made a fair trial impossible or rendered the proceedings abusive. The central issue was whether the history of delay and alleged prejudice justified the draconian remedy of striking out the claim.

1. Application dismissed. The periods of delay, viewed individually and cumulatively, were not sufficiently serious to justify strike-out. The claimants had continued to pursue the litigation and had not abandoned it.
2. The applicable approach was one of proportionality. The court considered the length of delay, explanations for it, failures to comply with rules or orders, prejudice, the effect on trial, the effect on other litigants, the defendant’s contribution to delay, the parties’ conduct, and other special factors. The principles were drawn from Hateley v Morris [2004] 1 BCOC 582, including the approach in Annodeus Entertainment v Gibson, and the proportionality requirement identified in Axa Insurance Co Limited v Swire Fraser Limited.
3. A defendant cannot allow proceedings to drift and later rely on resulting delay as prejudice where it could have taken steps to progress the action. Cooperation between the parties is part of the ethos of the CPR. The court relied on Asiansky Television plc v Bayer-Rosin [2001] EWCA Civ 1792, with the earlier authority Allen v McAlpine (Sir Alfred) & Sons [1968] 2 QB 229 cited in that context.
4. Strike-out can theoretically be appropriate despite an absence of prejudice, for example after extraordinary inactivity lasting many years. In this case, however, prejudice was a significant factor. The alleged witness prejudice either did not exist, would have arisen independently of the delay, or was substantially attributable to the defendants’ failure to obtain evidence and pursue the proceedings earlier.
5. The alleged loss of an opportunity to cross-examine a possible claimant witness did not make a fair trial impossible or difficult. The defendants’ inability to trace other witnesses did not establish delay-related prejudice where they had been unable to locate some witnesses earlier and had not made timely enquiries.