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

An appellate challenge to a discretionary case-management decision is a review, not a rehearing. Permission should be refused unless a serious or real error of principle or analysis is shown. Mere delay may not justify striking out proceedings, but inordinate and inexcusable delay can amount to abuse when combined with procedural disruption, wasted costs or prejudice to a fair trial. Where the passage of time makes a fair trial probably impossible or seriously impaired, and no alternative sanction is adequate, strike-out may be justified. The Court of Appeal will respect a meticulous first-instance assessment of these matters.

The claimant brought proceedings against two companies in a classical music publishing group concerning a 1997 agreement for restoration and sale of historic recordings. The claim, issued in 2000, remained largely dormant after case-management directions in December 2001. The claimant later pursued serious fraud and evidence-tampering allegations through an expert, then abandoned them and sought to amend the claim.

Barling J struck out the claim by order dated 29 October 2014, finding inordinate and inexcusable delay, abuse of process, serious impairment of a fair trial, prejudice and no adequate alternative sanction. The claimant sought permission to appeal. The central issue was whether the proposed appeal disclosed an arguable error in that discretionary case-management decision.

The Court of Appeal refused permission to appeal and determined the application to be totally without merit.

1. Nature of appellate review. Under Rule 52.11(1) of the Civil Procedure Rules, the proposed appeal would involve a review of the High Court’s decision, not a rehearing. The distinction was addressed in EI Du Pont Nemours v ST Du Pont [2003] EWCA Civ 1368. Unless a serious or real error of principle or analysis is identified, an appeal against a discretionary case-management decision cannot succeed.
2. Abuse of process and delay. Barling J correctly recognised that delay alone might not justify strike-out. The delay could become abusive when accompanied by additional factors. Those factors included the claimant’s maintenance for several years of grave, unpleaded allegations based on deficient expert reports, threats of inappropriate summary-judgment applications, disregard of case-management requirements and the resulting waste of time and public and private costs.
3. Prejudice and case management. The nearly twenty-year distance from the relevant events, in a factually and technically complex dispute, meant that a fair trial was probably impossible or at least seriously impaired. The respondents had suffered additional irrecoverable costs, with further prejudice likely if the proceedings continued. The High Court was entitled, exercising its case-management functions under Part 3 of the Civil Procedure Rules in light of the overriding objective in Part 1, to conclude that no alternative sanction was adequate.
4. Disposition. The proposed grounds disclosed no realistic prospect of success. Permission was therefore refused on the basis that the application was totally without merit.

• Court of Appeal (Civil Division) — Refused permission to appeal and determined the application to be totally without merit.
• High Court of Justice, Chancery Division (Barling J) — By order dated 29 October 2014, struck out the claim after finding inordinate and inexcusable delay, abuse of process, serious impairment of a fair trial, prejudice and no adequate alternative sanction.