Blackberry Limited v Optiemus Infracom Limited

A deliberate decision not to progress litigation may amount to Grovit abuse only where its reasons, assessed objectively against the length of the delay, are insufficient. A finding of abuse creates a discretionary question; it does not impose a presumption that the claim must be struck out unless the claimant shows compelling reasons.

Under the Civil Procedure Rules, the court must select the just and proportionate response in accordance with the overriding objective. It must consider the seriousness of the abuse, prejudice, the conduct of both parties, the administration of justice, deterrence, and available measures short of strike-out. Strike-out remains available, but is a draconian remedy rather than a default sanction.

Blackberry Limited sued Optiemus under a software and handset-services agreement. After effective service in India in December 2019, BlackBerry took no material step to advance the claim from March 2020 until July 2024.

The Commercial Court held that the prolonged deliberate inactivity was an abuse of process. It nevertheless refused to strike out the claim, lifted the automatic stay, permitted amendments, and imposed conditions concerning interest and costs: [2025] EWHC 3336 (Comm).

Optiemus appealed. It contended principally that a claimant found to have committed Grovit abuse had to show compelling reasons to avoid strike-out, and that the judge had erred when weighing prejudice and the parties’ conduct.

1. Appeal dismissed. Lord Justice Miles, with whom Lord Justice Foxton and Lord Justice Jeremy Baker agreed, held that the judge had applied the correct test and had been entitled to refuse strike-out.
2. A claimant’s deliberate decision not to pursue proceedings may be an abuse where, objectively assessed against the delay it causes, its reasons are inadequate. That first question is evaluative rather than discretionary. Once abuse is established, the court has a separate and broad discretion as to the appropriate response.
3. The discretion is governed by the overriding objective in the Civil Procedure Rules. There is no additional rule that strike-out follows unless compelling reasons against it are shown. The court explained that Board of Governors of the National Heart and Chest Hospital v Chettle (1998) 30 HLR 618 did not establish such a rule. It also rejected the contrary reading adopted in Watford Control Instruments Ltd v Brown [2024] EWHC 1125 (Ch).
4. The court must assess all the circumstances. The seriousness of the abuse, its effect on the administration of justice and deterrence are material. Specific prejudice to the defendant is unnecessary, but remains relevant. The court must also consider the conduct of both parties and proportionate alternatives, including case-management directions and conditions concerning interest or costs.
5. The judge had rationally found that the case remained capable of fair resolution, principally on documents and expert evidence; that no material specific prejudice had been established beyond interest; and that BlackBerry would suffer substantial prejudice if its arguable claim were lost. He was entitled to take account of Optiemus’s complete disengagement and the measures short of strike-out available to address the abuse. The refusal to strike out and the lifting of the stay therefore disclosed no appellate error.

• Court of Appeal (Civil Division): dismissed Optiemus’s appeal and upheld the refusal to strike out, the lifting of the automatic stay, and the consequential case-management outcome: [2026] EWCA Civ 1004 .
• High Court of Justice, Commercial Court: found that BlackBerry’s prolonged inactivity was an abuse of process, but held that strike-out would be disproportionate; it lifted the stay subject to conditions: [2025] EWHC 3336 (Comm) .