Panamax Star Owners &/or Bailees of the Cargo of the Ship) v Auk (Owners of the Ship)

Strike-out for delay is governed by the overriding objective and requires a broad assessment of all relevant circumstances. Relevant considerations include the length, explanation for and responsibility for the delay, prejudice, the possibility of a fair trial, and proportionate alternatives to strike-out. A defendant’s failure to progress proceedings may affect the allocation of responsibility for prejudice, but primary responsibility for progressing a claim and fixing a case management conference rests with the claimant. Extraordinary and culpable delay which causes serious prejudice and makes a fair trial impossible may justify striking out both claim and counterclaim.

The claimant brought a collision claim arising from the collision of the Panamax Star and the anchored Auk in the Amazon River on 21 May 1999. The claim form was issued in May 2000 and served in May 2001. After an agreed suspension of the procedural timetable, collision statements of case were exchanged in 2005, followed by sporadic settlement discussions and prolonged inactivity.

In March 2013 the claimant applied to list a case management conference. The defendant applied in May 2013 to strike out the claim and counterclaim for want of prosecution, abuse of process, breach of the rules and delay. The central issues were whether the claimant had breached its procedural obligations, whether the delay caused serious prejudice and prevented a fair trial, and whether strike-out was the just and proportionate sanction.

1. Strike-out and delay. The claim and counterclaim were struck out. The court must make a broad judgment having regard to all relevant circumstances and the justice of the case. Relevant matters include the length, explanation for and responsibility for delay, prejudice, the possibility of a fair trial, and alternative sanctions. There are no hard and fast rules. Purdy v Cambran and Walsh v Misseldine supplied the principal guidance, consistent with Biguzzi v Rank Leisure and Asiansky v Bayer-Rosin (a firm) (paras [33]-[37]).
2. Procedural responsibility. In a collision claim the claimant was required to take steps to fix a case management conference. CPR PD 58 para 10.2 applied, or alternatively the obligation arose from the Admiralty and Commercial Courts Guide and the claimant’s duty under CPR 1.3 to assist the court in furthering the overriding objective. The generality of CPR 1.3 did not prevent it providing a proper basis for strike-out where the failure was serious and stark (paras [41]-[51]).
3. Delay and prejudice. The claimant’s approximately seven years of culpable delay after the time when a case management conference should have been fixed was inordinate and inexcusable. Primary responsibility rested with the claimant, notwithstanding the defendant’s share of responsibility. The dispute depended materially on oral evidence concerning navigation, vessel heading, yaw, anchoring and the actions of the masters and pilots. The passage of time, the death of the pilots and deterioration of memory meant that satisfactory oral evidence and effective cross-examination would no longer be possible (paras [52]-[72]).
4. Justice and proportionality. The delay caused serious prejudice and made a fair trial impossible. Even if the impairment had fallen short of impossibility, the same result would have followed from the overall circumstances. No sanction short of strike-out was appropriate (para [73]).
5. Abuse of process. It was unnecessary to decide separately whether leaving the proceedings dormant amounted to abuse of process, because the claim and counterclaim were struck out for delay and prejudice (paras [74]-[76]).

First-instance decision. No prior appellate decision is stated in the judgment.