Mohammed v Ministry of Defence (Rev 1)

Maintaining proceedings without any present intention to bring them to trial is an abuse of process. The court may strike out such proceedings where the evidence shows no realistic prospect that the claimant will progress the claim. In exercising that power, the court should consider the claimant’s circumstances and whether a final, proportionate opportunity may realistically enable the claim to proceed. Where exceptional conditions explain the difficulty in contacting a claimant, the court may impose a final conditional order, with automatic strike-out if specified steps are not completed.

The claimant alleged that his detention by British forces in Afghanistan was unlawful. Preliminary issues had been considered by the High Court, the Court of Appeal and the Supreme Court, leaving factual issues for trial. The claimant’s solicitors had been unable to contact him, directly or indirectly, for more than three years. They sought a further stay to locate him, while the defendant applied to strike out the claim as an abuse of process.

The central issue was whether the claim should be struck out because there was no present intention, or realistic prospect, of bringing it to trial.

1. Abuse of process. It is an abuse of process to maintain proceedings without any present intention to bring them to trial. The court considered the principles in Grovit v Doctor [1997] 1 WLR 640 and Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426.
2. On the evidence, it was highly unlikely that the claimant intended to pursue the claim to trial and there was no apparent realistic prospect of his doing so. A claimant who wishes to pursue litigation is ordinarily expected to take some initiative to communicate with representatives. If communication had genuinely been impossible, that would itself cast doubt on the realistic prospect of proceeding to trial.
3. Nevertheless, the court was not completely confident that the claimant had abandoned the claim or that no realistic prospect existed if assistance were provided. The court took account of the unusual conditions in Afghanistan, the claimant’s illiteracy and his residence in a remote area.
4. The court therefore granted one final opportunity. Within six months, amended particulars of claim had to be served, signed by the claimant with a statement of truth, together with a witness statement explaining, without waiving privilege, how communication with him would be maintained so that the claim could proceed to trial. Unless those conditions were satisfied, the claim would automatically be struck out.

• High Court (Queen’s Bench Division): Preliminary issues were determined on 2 May 2014.
• Court of Appeal: Judgment was given on 30 July 2015 following appeals by both parties.
• Supreme Court: Further appeals were decided on 17 January 2017, with the form of the final order resolved on 12 April 2017.
• High Court (Queen’s Bench Division): The present case-management application was determined by imposing a final conditional timetable and providing for automatic strike-out.