Wave Lending Ltd v Batra & Anor

The court has a broad discretion whether to restore a claim adjourned or stayed indefinitely. Restoration is not available as of right. The applicant must explain the delay, address the likely effect on a fair trial and satisfy the overriding objective. The merits may be considered, although the applicant need not establish a real prospect of success.

Delay alone will not usually constitute an abuse of process, but delay coupled with an additional factor may do so. An unless order takes effect automatically upon non-compliance. Relief from sanctions requires consideration of the seriousness of the breach, the reason for it and all the circumstances, including the need for litigation to be conducted efficiently and proportionately.

Wave Lending Ltd brought proceedings concerning mortgage lending transactions involving Mr Batra. During the 2009 trial, the claim brought by Mr Batra against SFM Legal Services Ltd was adjourned sine die after SFM entered voluntary liquidation. The main claim was settled confidentially.

In 2015 Mr Batra applied to restore the claim against SFM. An unless order required him to provide a full history and account for the delay. He supplied a witness statement, but the court found it inadequate and misleading. The liquidator separately applied to strike out the claim as an abuse of process. The issues were whether the unless order had been complied with, whether relief from sanctions should be granted, and whether the dormant claim should otherwise be restored or struck out.

1. The restoration application was dismissed. The order adjourning the Part 20 claim sine die was construed, favourably to Mr Batra, as an indefinite stay with liberty to apply. It did not give him an entitlement to restoration.
2. The court adopted a broad discretion governed by the overriding objective. Relevant matters included the length and reasons for delay, the effect on the ability to conduct a fair trial, and the merits. The threshold ordinarily becomes higher as time passes.
3. The unless order required a full account of the approximately six-year delay. Mr Batra’s statement omitted material matters, including the Financial Conduct Authority proceedings, and did not properly explain the periods of inactivity. It therefore failed to comply with the order. Under [2007] EWCA Civ 463, the sanction took effect automatically.
4. Applying the guidance in [2013] EWCA Civ 1537, as explained in [2014] EWCA Civ 906, the breach was serious, there was no good reason for it, and the circumstances did not justify relief. The court gave particular weight to the misleading evidence and the need for finality and efficient litigation under Civil Procedure Rules 1998, rule 3.9.
5. Independently, restoration would have required substantial review and likely amendment, further disclosure and new evidence. The confidential settlement created a further obstacle, and a fair trial after the delay would be materially more difficult.
6. Delay alone would not normally establish abuse of process, but the failed restoration application, inadequate supporting evidence and misleading statement supplied the additional factors required by [2000] All ER (D) 424 (CA) and [2009] UKPC 24. The Part 20 claim was therefore struck out. Any further restoration application would require a material change of circumstances and could not merely re-run the present application.

This was a first-instance decision on applications to restore and strike out a dormant Part 20 claim. The judgment records that the claim had been adjourned sine die by Mr Justice Peter Smith in October 2009.