BlackBerry Limited v Optiemus Infracom Limited

A deliberate decision to leave proceedings dormant may constitute abuse of process. The court must assess the claimant’s intention, the resulting delay, the reasons for it, and whether those reasons objectively justify the delay. Abuse does not automatically require strike-out. The court must separately exercise its discretion under the CPR, applying proportionality and the overriding objective; no special requirement for compelling reasons applies.

An automatic stay under CPR 15.11 can arise where time for filing a defence was fixed under an order made pursuant to the rules governing service out of the jurisdiction. An application to lift the stay should be approached using the structured framework in Denton, with appropriate flexibility.

BlackBerry claimed unpaid contractual licence fees from Optiemus. The claim form and particulars of claim were served in India in December 2019 under the Hague Service Convention. Optiemus neither acknowledged service nor filed a defence.

BlackBerry intended to seek summary judgment, but took no procedural step from March 2020 until July 2024. The claim was automatically stayed in July 2020. BlackBerry applied to lift the stay and for summary judgment; Optiemus applied to strike out the claim for abuse of process. BlackBerry also sought permission to amend its particulars of claim to add later-accruing sums.

The central issues were whether the delay was abusive, whether the claim should be struck out, whether the automatic stay applied and should be lifted, and whether amendment should be permitted.

1. Abuse of process. Mere delay, however prolonged, is not itself abuse. Abuse may arise where a claimant deliberately decides not to progress proceedings. The decisive enquiry is whether the claimant’s reasons, objectively assessed against the length of the delay, sufficiently justify the decision. The court should not impose a rigid distinction between cases intended to be revived and cases effectively abandoned.

2. The enquiry has two stages. First, the court determines whether the claimant deliberately stopped progressing the claim and whether that conduct was abusive. Secondly, if abuse is established, the court decides how to respond. Strike-out frequently may be appropriate, but is not automatic. Under the CPR, the court must apply the overriding objective, proportionality, the parties’ respective responsibility and prejudice, and possible alternatives. A rule requiring compelling reasons before refusing strike-out would be inconsistent with the discretionary structure of CPR 3.4 and CPR 1.2.

3. BlackBerry deliberately decided not to pursue the claim. The Covid-19 restrictions provided a strong justification until about August 2020, but not thereafter. General concerns about Optiemus’s financial position did not objectively justify nearly four years of inactivity. The conduct therefore constituted abuse of process.

4. The claim should nevertheless not be struck out. Optiemus suffered no specific identifiable prejudice, apart from interest, which could be addressed financially or by conditions. A fair trial remained possible. Strike-out would deprive BlackBerry of an arguable claim exceeding USD 6 million, and the abuse was deliberate but not egregious, dishonest or in breach of a specific rule. By a narrow margin, strike-out would be disproportionate.

5. Automatic stay. The period fixed by the order for service out of the jurisdiction was, for the purposes of CPR 15.11, the period specified by CPR 15.4, as modified by the order. Failure to acknowledge service did not postpone indefinitely the time for filing a defence. The automatic stay therefore arose on 14 July 2020.

6. An application to lift the stay should be analysed using the Denton framework, recognising that the relevant considerations under CPR 15.11 and CPR 3.9 are likely to overlap. The delay was serious and significant, but lifting the stay was proportionate because the claim remained arguable and fairly triable, and the prejudice could be addressed without dismissal. The stay was lifted subject to conditions to be considered, and permission was granted to amend the particulars of claim. The application to strike out was dismissed.