Wearn (t/a Jonathan Wearn Productions) v HNH International Holdings Ltd

Inordinate and inexcusable delay alone does not amount to abuse of process. It becomes abusive when combined with an additional factor, such as wholesale disregard of court orders, waste of court resources, or conduct seriously obstructing a fair trial.

Under the Civil Procedure Rules 1998, rule 3.4(2)(b) and (c), the court must assess all relevant circumstances and choose a proportionate sanction. Relevant matters include responsibility for delay, specific trial prejudice, non-compliant expert evidence, and whether a lesser sanction can secure a fair disposal. Strike-out is justified where a fair trial is probably impossible or seriously impaired and no realistic alternative exists.

The claimant, a sound engineer, brought proceedings in 2000 concerning a 1997 agreement for the restoration and commercial exploitation of historic sound recordings. He alleged breaches by HNH. HNH denied liability and brought a counterclaim.

Directions given by Park J in December 2001 contemplated a trial in 2002, but pleadings, disclosure and evidence remained incomplete. The claimant later relied on two expert reports and sought directions to revive and amend the claim. HNH applied to strike out for abuse of process and non-compliance with court rules and orders. The central issues were whether the delay and conduct obstructed a fair trial and whether any lesser sanction was proportionate.

1. Disposition. The claimant’s claim was struck out under both CPR rule 3.4(2)(b) and (c). HNH’s counterclaim was also struck out by concession.
2. Delay, however lengthy or inexcusable, was not by itself abuse of process. An additional factor was required. The court found that the claimant had effectively disregarded Park J’s 2001 order, allowed progress to be determined by his expert’s investigations, pursued allegations and a threatened summary judgment application which were later abandoned, and failed to conduct the litigation expeditiously or proportionately.
3. The two expert reports materially aggravated the position. They went beyond sound-engineering expertise, addressed alleged fraud, forgery and contractual compliance, and adopted an advocate’s role. They therefore failed to provide the objective and unbiased expert evidence required by Civil Procedure Rules 1998 Part 35 and the relevant practice direction.
4. HNH had contributed to the delay by letting the proceedings remain dormant and could not attribute all resulting prejudice to the claimant. That responsibility was substantially less than the claimant’s. The case nevertheless had become stale. It involved detailed reconstruction of the movement and processing of numerous recordings, communications and documents over nearly twenty years. The court inferred that a fair trial was probably impossible, or at least seriously impaired. General assertions that memories fade were insufficient, but the complexity and age of the evidence established specific prejudice.
5. Strike-out was a draconian sanction, but no lesser sanction was realistic or proportionate. Costs could not adequately address the prejudice because the claimant was legally aided and HNH’s substantial costs were likely irrecoverable. The court did not assess the merits, and concluded that justice and the overriding objective required the proceedings to stop.