Asturion Fondation v Alibrahim

Delay in progressing proceedings is not, by itself, an abuse of process, however lengthy it may be. A claimant’s decision to pause proceedings pending related foreign litigation is not automatically abusive or determinative merely because it may be described as warehousing.

The court must assess all the circumstances, including the length of the delay, the claimant’s responsibility for it, and the reasons for it. Warehousing is a descriptive label, not a freestanding legal test. If abuse is established, the court must separately decide whether striking out is a just and proportionate sanction.

The claimant appealed against an order of Deputy Master Cousins striking out its claim under CPR 3.4 for abuse of process. The claim concerned the validity of a transfer of a valuable London property to the defendant.

The claimant had paused progress while related proceedings in Liechtenstein challenged the authority of its board to conduct the English litigation. The defendant argued that this amounted to unilateral warehousing. The central issues were whether the pause and ensuing delay constituted abuse of process and, if so, whether striking out was justified.

1. Appeal allowed. The Master’s conclusion that pausing the English proceedings amounted to abuse of process was wrong in law. The claim was not to be struck out.
2. The court’s task comprised three stages: finding the facts; deciding as a matter of law whether those facts constituted abuse of process; and deciding whether, in the circumstances, striking out or another sanction was just. The second stage was a question of law on which the appellate court could reach its own conclusion.
3. The authorities established that commencing or continuing proceedings with no real intention of taking them to trial could amount to abuse, and that mere delay was insufficient without an additional factor. They did not establish that delay described as warehousing was always abusive. Warehousing was a descriptive term, not a precise legal category or test.
4. The court had to examine all the circumstances, including the length of the delay, the claimant’s responsibility for it, and the reasons given. A pause pending related foreign proceedings could be understandable and materially different from retaining proceedings merely as a fallback or pursuing them only when convenient.
5. The Liechtenstein proceedings directly concerned the claimant’s authority to pursue the English claim. The period of inactivity was relatively short, the claimant intended to pursue the claim, and there was reason to believe that the defendant was content not to press forward. The pause and ensuing delay therefore did not amount to abuse.
6. The Master had also taken irrelevant matters into account, including the claimant’s position on security for costs. Even if abuse had been established, striking out would not have been justified: the abuse would have been minor, no real prejudice had been shown, and striking out would have created an unjustified anomaly while materially similar claims proceeded elsewhere.

• High Court (Chancery Division): appeal allowed against the order of Deputy Master Cousins dated 11 September 2018, which had struck out the claim for abuse of process.