J Preston & Sons Ltd

Strike-out for abuse of process requires more than procedural fault or potential prejudice. The conduct must place the fairness of the trial in jeopardy, creating a substantial risk that further proceedings would be unsatisfactory or prevent the court from doing justice. The threshold is high. Even where abuse is established, the court retains discretion to impose a less severe remedy if a fair trial remains possible. In an asbestos-related lung-cancer claim, a clear diagnosis of asbestosis during the claimant’s lifetime may provide a sufficient evidential basis, so that failures concerning witness evidence or post-mortem samples do not necessarily create a substantial risk of an unfair trial.

The defendant sought permission to appeal against Senior Master Whitaker’s refusal on 20 July 2011 to strike out an estate claim as an abuse of process. The claim alleged that Gordon Anderson’s death from lung cancer was partly caused by negligent exposure to asbestos during his employment with the defendant.

The defendant admitted exposure in breach of duty but argued that the claimant’s solicitor had delayed disclosure of Mr Anderson’s witness statement, failed to provide medical evidence promptly, failed to notify the defendant of the impending death and post-mortem, and failed to secure histopathological samples. The central issue was whether those matters created a substantial risk that a fair trial of causation was no longer possible.

1. Application of the strike-out jurisdiction. Under