Muhammed Suhel Ahmed v Adam Chojnowski

A breach of the parties’ duty under the Civil Procedure Rules 1998 to help the court further the overriding objective may, on appropriate facts, constitute an abuse of process and engage the strike-out jurisdiction. The court must nevertheless apply a two-stage approach. It must first decide whether there has been an abuse of process. It must then separately decide whether strike out is a proportionate response, considering lesser sanctions and the circumstances of the case. Delay, inadequate co-operation and failures to progress agreed directions may ordinarily be addressed through costs, interest and procedural sanctions. Strike out is disproportionate where those measures adequately protect the opposing party and the claim concerns an admitted liability.

The claimant appealed against an order of Master McCloud striking out his personal injury claim arising from a road traffic accident. Liability had been admitted. Following surveillance evidence, the parties agreed revised directions and a new trial window, but the draft consent order was never approved or sealed. The claimant then failed for about a year to provide further evidence or progress the directions.

The Master treated the conduct as an abuse of process, a breach of the overriding objective and, effectively, a breach of the consent order. The central issues were whether the unsealed consent order and the claimant’s failure to assist the court could support strike out, and whether the Master had properly exercised the discretion to impose that sanction.

1. Grounds 1 and 2. The appeal was dismissed on the consent-order and overriding-objective issues. Although the draft consent order had not been approved or sealed, the agreed timetable was capable of being taken into account. It could contribute to an abuse of process and could amount to a breach of the parties’ duty under CPR 1.3, which is a duty imposed by a court rule for the purposes of CPR 3.4(2)(c) ([51]-[57], [63]-[67]).
2. The concept of abuse of process is broad, flexible and fact-specific. A failure to comply with CPR obligations, including the duty to assist the court in furthering the overriding objective, may in an appropriate case constitute abuse and justify strike out ([60]-[69]).
3. Ground 3. The Master had been entitled to find an abuse of process. However, the judgment did not separately address the second stage required by Cable v Liverpool Victoria Insurance Co. Ltd—whether strike out was proportionate—or explain why lesser sanctions were inadequate. The one-stage or holistic approach risked obscuring that separate proportionality assessment ([86]-[93]).
4. On conducting the assessment afresh, strike out was disproportionate. The principal prejudice was approximately one year’s delay, which could generally be compensated through costs or other financial sanctions. The admitted liability, the claimant’s right to have damages determined, and the availability of lesser sanctions outweighed the additional criticism of the claimant’s and solicitor’s conduct ([94]-[96]).
5. The claim was reinstated. The claimant was ordered to pay indemnity costs for the specified period, recover no interest on special damages for that period, provide the outstanding witness statement within 21 days, and take steps concerning the application to change solicitor. Failure to provide the statement would result in strike out ([97]-[98]).

1. High Court (King’s Bench Division): Master McCloud struck out the claim after a hearing on 2 February 2022.
2. High Court (King’s Bench Division), on appeal: the appeal was dismissed on Grounds 1 and 2 but allowed on Ground 3. The claim was reinstated subject to sanctions and further directions.