Louise Keith v Micah Lucian Alexander Benka & Anor

A court may strike out a claim for abuse of process under rule 3.4(2)(b) of the Civil Procedure Rules 1998 even where neither a rule nor an order has been breached. The categories of abuse are not closed.

Lengthy and unjustified inactivity does not, without more, establish abuse. In an alleged warehousing case, the court must assess objectively the length of the lapse and the claimant’s reason for it. If abuse is established, the court then decides whether strike-out is justified. A stay and a material failure by the court to progress a transfer may be decisive factors against characterising an otherwise stale claim as abusive.

The claimant landlord brought county-court proceedings in 2014 alleging lease breaches, service-charge arrears and grounds for forfeiture of the appellant tenant’s long lease. In 2015, the county court stayed the proceedings and referred the covenant-breach issues to the First-tier Tribunal. The court did not transmit the transfer materials to that tribunal.

In 2019, a deputy district judge struck out the claim for delay and an assumed failure by the landlord to apply to the tribunal. HHJ George allowed the landlord’s appeal because the transfer order imposed no such obligation. The tenant appealed, contending that the lengthy inactivity itself was an abuse of process under CPR rule 3.4(2)(b).

The central issue was whether the claimant’s conduct, despite the absence of a breach of rule or order, justified strike-out for abuse of process.

1. Appeal dismissed unanimously. The deputy district judge had wrongly treated the 2015 transfer order as requiring the landlord to take steps to apply to the First-tier Tribunal. HHJ George was therefore entitled to set aside the strike-out decision, because that mistaken premise underlay both parts of it.

2. HHJ George was nevertheless wrong to treat the absence of a breach of rule or order as excluding the power to strike out. Rule 3.4(2)(b) of the Civil Procedure Rules 1998 permits strike-out for abuse of process independently of rule 3.4(2)(c). The inherent jurisdiction to prevent abuse is not confined to fixed categories: [1982] AC 529.

3. The authorities establish that inordinate and inexcusable lapse of time does not itself amount to abuse. A claimant’s unilateral decision to hold proceedings while intending to revive them may be abusive, but the court must assess objectively the reason for the inactivity and its duration. It must first decide whether there has been abuse and, only if so, decide whether strike-out is appropriate: [1997] 1 WLR 640; [2009] UKPC 24; [1998] 1 WLR 1426; [2020] EWCA Civ 32.

4. The lapse of more than four and a half years after the transfer order was very long. The landlord’s stated wish to postpone the claim until compelled to proceed was no good reason, and the tenant had shown real prejudice and a serious risk that historic allegations could not fairly be tried. However, the proceedings, rather than the resolution of the dispute, had been stayed. The county court’s failure to transmit the transfer order was a highly relevant contributing cause. Treating the claim as abusive would, on these particular facts, punish the landlord for the court’s own error.

5. No abuse of process was established. The Court therefore upheld HHJ George’s order setting aside the strike-out.

• Court of Appeal (Civil Division): The tenant’s appeal was dismissed: [2023] EWCA Civ 821.

• County Court at Guildford (HHJ George): Allowed the landlord’s appeal and set aside the order striking out the claim.

• County Court at Guildford (DDJ Anstis): Struck out the landlord’s claim for delay and an assumed failure to apply to the First-tier Tribunal.