Western Avenue Properties Limited & Anor v Sadhana Soni & Anor

Prolonged procedural inactivity may amount to an abuse of process where it supports an inference that a party has no genuine intention to advance its claim, or is merely warehousing it subject to a future event. A party cannot invoke the strict approach to delay against its opponent while seeking to excuse materially identical inactivity of its own. The court may strike out a claim or counterclaim where delay is inordinate and inexcusable, the inference of conditional or tactical non-prosecution is established, and the conduct is inconsistent with the overriding objective.

The claimants sought to restrain the defendants from acting as solicitors in alleged breach of confidentiality obligations arising from the first defendant’s former engagement as the claimants’ in-house solicitor. An interim injunction was granted in 2017. The defendants counterclaimed for unpaid fees, and security for costs was paid in 2018.

The claim was later struck out by consent and the injunction discharged. The defendants then sought directions for the counterclaim. The claimants applied to strike out the counterclaim for abuse of process or, alternatively, want of prosecution, relying on the defendants’ failure to progress it since 2018. The central issue was whether that delay justified striking out the counterclaim.

1. The counterclaim was struck out. The defendants had failed to take any meaningful step to progress it for nearly five years after security for costs was paid and had not pursued their earlier application to re-amend.
2. Under the principles discussed in Havering London Borough Council v Persons Unknown [2021] EWHC 2648 (QB), delay following an interim injunction may constitute abuse of process where the claim is not pursued expeditiously. Delay alone is insufficient, but may become abusive when combined with another relevant factor.
3. The authorities summarised in Wearn v HNH International Holdings Limited [2014] EWHC 3542 (Ch) and Alfozan v Quastel Midgen LLP [2022] EWHC 66 (Comm) supported the relevance of inordinate procedural inactivity and the inference that a party lacks a real intention to proceed, subject to rebuttal by a satisfactory explanation.
4. The defendants’ conduct fell within the principle identified in Asturion Fondation v Alibrahim [2020] EWCA Civ 32: it was likely abusive for a claimant unilaterally to decide not to pursue a claim for a substantial period while retaining an intention to revive it later. The defendants’ conditional intention to pursue the counterclaim only if the claim was revived amounted to tactical warehousing.
5. The defendants could not condemn the claimants’ failure to progress the claim while seeking to justify equivalent inactivity in the counterclaim. That was approbation and reprobation, a form of conduct generally disfavoured in law, as recognised in Express Newspapers Plc v News (UK) Limited [1990] 1 WLR 1320 (Ch).
6. The delay was inordinate and inexcusable. The inference of warehousing was not rebutted by payment of security for costs or the earlier amendment application. The defendants were in serious breach of the overriding objective, and prejudice to the claimants was inferred from the scale and nature of the delay. The other applications consequently fell away.