Sweetman v Shepherd & Ors

A claim may be struck out for abuse of process where prolonged and largely unjustified delay creates a strong likelihood that a fair trial is impossible. The court must assess the whole procedural history, the parties’ responsibility for delay, prejudice, compliance with orders, the strength of the claim and whether lesser sanctions would suffice. A claimant’s limited means may be relevant, but cannot justify very substantial delay, repeated procedural defaults or tactical inactivity. The court may strike out under Civil Procedure Rules 1998, rule 3.4 where delay is so serious that it obstructs the just disposal of the proceedings.

The claimant brought three related actions arising from disputed land transactions and alleged professional negligence, deceit and loss of a chance. The underlying events occurred principally in 1991. Proceedings were issued at or near the end of the relevant limitation periods, and the pleadings remained incomplete for many years. There had been earlier interlocutory decisions, including decisions of the Court of Appeal permitting related claims to continue subject to security for costs.

The defendants applied to strike out the claims because of delay, repeated failures to comply with procedural obligations and the resulting prejudice. The central issue was whether the litigation could still be tried fairly and justly.

1. Applications granted. Each Statement of Case was struck out under rule 3.4 of the Civil Procedure Rules 1998.
2. The claimant bore the primary responsibility for progressing the litigation. The delay was already excessive by November 2004 and was aggravated by repeated failures to serve adequate pleadings, provide disclosure, answer requests for information, comply with orders and seek to lift the stays.
3. The court applied the principles in Birkett v James [1978] AC 297, Biguzzi v Rank Leisure Plc [1999] 1926, Annodeus Ltd v Gibson (unreported, 2 February 2000), Taylor v Anderson (unreported, 7 November 2002), and Asiansky Television Plc v Bayer-Rosin (unreported, 19 November 2001). Time limits were important, sanctions had to remain proportionate, and strike-out was appropriate in a serious case where justice required it.
4. The claimant’s underlying claims were weak but not wholly unarguable. That did not prevent strike-out. The relevant question was whether a fair trial remained realistically possible. It did not. The case depended on oral evidence from numerous witnesses about events many years earlier, while important documents and records were missing or uncertain. A trial would probably not begin until 2009 and would carry a strong likelihood of unfairness.
5. The claimant’s financial difficulties did not provide a sufficient explanation. The pattern of inactivity appeared tactical, and the claimant had not given frank and detailed evidence establishing that lack of funds caused the delay.

The judgment itself states that related proceedings had previously been considered by the Court of Appeal, but this was a first-instance decision on the defendants’ applications to strike out the three claims. Each Statement of Case was struck out.