Solland International Ltd & Ors v Clifford Harris & Co

Delay alone, however inordinate and inexcusable, does not establish abuse of process. Abuse may arise where a claimant commences or continues proceedings without a present intention to bring them to trial or another proper resolution. Unilateral warehousing for a substantial, indeterminate period may suffice, even if the claimant later decides to proceed. A separate abuse may arise from complete, total or wholesale disregard of litigation rules with full awareness of the consequences; a continuing failure to file an allocation questionnaire did not meet that threshold where the court and defendant also failed to act. For delay-based fair-trial applications, the court must assess the aggregate impact of all delay, then ask whether the claimant’s culpable delay materially contributed to a substantial risk of an unfair trial. If abuse is proved, strike-out remains a discretionary and proportionate sanction.

The appellants brought a professional negligence and breach of retainer claim against solicitors who had represented them in earlier litigation. After pleadings were served, the appellants failed to file an allocation questionnaire and took no further procedural step for a substantial period.

Master Bowles rejected the allocation-questionnaire ground but struck out the claim for abuse of process and because delay created a substantial risk that a fair trial was no longer possible. He also declined a retrospective extension of time. The appeal concerned the two abuse limbs, the effect of the court’s and respondent’s inactivity, the fair-trial test and the proportionality of strike-out. The Master’s judgment was reported at [2015] EWHC 1018 (Ch).

1. Disposition and appellate approach. The appeal was dismissed. An appeal from the Master was a review, not a rehearing. The High Court could intervene only for an error of law or principle, findings not open on the evidence, or an exercise of discretion outside permissible bounds.
2. Allocation questionnaire. Under the Civil Procedure Rules and Practice Direction 26, failure to file an allocation questionnaire did not itself prevent the claim or defence from being advanced and did not create an implicit sanction requiring both an extension of time and relief from sanctions. The default remained relevant when assessing abuse of process and the risk to a fair trial. The court’s failure to manage the case and the respondent’s ability to progress the proceedings were relevant circumstances.
3. Grovit limb. The court applied Grovit v Doctor [1997] 1 WLR 640 and Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426. Delay alone was insufficient, but unilateral warehousing of litigation without an intention to bring it to trial or another proper resolution could amount to abuse, even if the claimant later changed its mind. The Master was entitled to infer from the appellants’ 31 months of inactivity and the paucity of their evidence that they had no settled intention to pursue the claim. Later assurances and activity after the strike-out application did not cure the earlier abuse.
4. Choraria limb. The test stated in Choraria v Sethia [1998] CLC 625 and reiterated in Habib Bank Ltd v Jaffer [2000] CPLR 438 required complete, total or wholesale disregard of the rules with full awareness of the consequences. The appellants’ default, consisting principally of failing to file an allocation questionnaire and failing to progress the claim, did not meet that threshold. Court and respondent inactivity was relevant to this limb. The Master was therefore wrong to find this form of abuse.
5. Sanction. Strike-out for the Grovit abuse was draconian but remained within the Master’s discretion. The Master was entitled to doubt whether the appellants’ assurances would produce diligent progress and to conclude that lesser sanctions risked further satellite litigation. The revised overriding objective after April 2013 could reinforce that assessment. The right of access to a court under Article 6 of the European Convention on Human Rights and the common law did not extend to abusing the court’s process.
6. Fair trial. Following the CPR, the court had first to assess the aggregate impact of all delay on the possibility of a fair trial and then whether the claimant’s culpable delay materially contributed to any substantial risk. The applicant bore the burden, and general assertions about fading memories were insufficient. The Master was entitled to rely on the central disputes about oral instructions, the absence of contemporaneous records and the likely effect of delay on witnesses’ recollection and cross-examination. The appellants’ delay materially contributed to the risk, notwithstanding the respondent’s inactivity. Strike-out was therefore also available on this ground.

• High Court (Chancery Division): appeal dismissed and the order striking out the claim upheld.
• Master Bowles: order dated 14 July 2015 struck out the claim for abuse of process and the risk of an unfair trial, and declined a retrospective extension of time. Judgment: [2015] EWHC 1018 (Ch).