Nelson, R (On the Application Of) v The Parole Board of England And Wales

A claim may be struck out where the claimant has effectively abandoned it and failed to comply with procedural requirements. In deciding whether delay or inactivity amounts to abuse of process, the court should assess all relevant circumstances, including the length and explanation for the delay, responsibility for it, prejudice, the possibility of a fair trial and proportionate alternatives to striking out. Inordinate and inexcusable delay alone is insufficient, but it may constitute abuse where it involves a wholesale disregard of the rules with knowledge of the consequences. The overriding objective requires cases to be dealt with justly, fairly, expeditiously and at proportionate cost, while managing court resources and enforcing procedural compliance.

The claimant had been sentenced to imprisonment, released on licence, recalled for breach of a licence condition and referred to the Parole Board for consideration of re-release. He challenged delay in listing an oral hearing, alleging breaches of Article 5 of the European Convention on Human Rights and the common law. Permission to apply for judicial review had been granted on all grounds.

The claimant’s public funding was cancelled and his solicitors came off the record. He then ceased communicating with the court, the defendant and his former legal representatives. He filed and served neither a skeleton argument nor a bundle, contrary to the Practice Direction to CPR 54. The central Article 5 issue was not determined because the claim’s abandonment and procedural defaults required consideration first.

1. The court struck out the claim under CPR rule 3.4(2)(b) and (c). The claimant had made no effort to progress the proceedings for approximately six months, had ceased all contact and had failed to comply with the Practice Direction to CPR 54 by filing and serving no skeleton argument or bundle.

2. The court applied the guidance summarised in The Owners and/or Bailees of the Cargo of the Ship Panamaz Star v The Owners of the Ship Auk [2013] EWHC 4076 (Admlty). There are no hard and fast rules governing delay. 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 the delay, prejudice to the defendant, whether a fair trial remains possible and alternative sanctions to striking out.

3. Commencing or continuing proceedings which the claimant has no intention of bringing to a conclusion may constitute an abuse of process, applying the principle discussed in Grovit v Doctor [1997] 1 WLR 640 and Habib Bank Ltd v Jaffer (The Times, 5 April 2000). Inordinate and inexcusable delay alone does not amount to abuse, but it may do so where it involves a wholesale disregard of the rules of court with full awareness of the consequences.

4. The overriding objective in CPR rule 1 requires cases to be dealt with justly and at proportionate cost, including expeditiously and fairly, with an appropriate allocation of court resources and enforcement of procedural compliance. In the circumstances, striking out was the only sensible response. The court dispensed with service of the order because the claimant could not be found.

First-instance judicial review proceedings. Permission was granted on 6 July 2016, but the claim was struck out by the Administrative Court before the substantive Article 5 issue was determined.