CASE STRUCK OUT BECAUSE DELAY WAS AN ABUSE OF PROCESS: WEARN -v- HNH CONSIDERED
In Wearn -v- HNH International Holdings Ltd  EWHC 3542 (Ch) Mr Justice Barling struck out a claim for delay, holding that the claimant’s delay amounted to an abuse of process. There are also a few interesting observations about the role of experts and a detailed consideration of the principles relating to striking out an action where delay amounts to an abuse of process.
The claim was a complex action, and counterclaim, for breach of various agreements relating to recording and distributing of classical music. The claimant made allegations against the defendant, describing their conduct as “fraudulent and criminal”. The claimant was legally aided. However the day before the hearing these assertions were abandoned and the claim was to proceed on the basis of simple breach of contract.
THE HISTORY OF THE ACTION
- The action began in 2001.
- There was a flurry of activity for several years, with problems with expert witnesses and obtaining various recordings.
- There was hiatus of nearly three and a half years and then a further report was disclosed.
- After another period of activity there was a further four years’ hiatus.
- The claimant’s solicitors then wrote proposing, in essence, that there be an adjustment of the timetable made in 2001.
THE EXPERT EXCEEDING HIS ROLE
In 2013 the claimant served an expert report as to the quality of recordings. This report went beyond the role of the expert.
- Thus, the conclusions in the Second Report appear to acquit K&A (but not HNH) of deliberate sabotage. However, in the body of the report, in a section where Mr Watkinson comments on K&A’s operatives’ witness statements, he seems to call into question the truthfulness of Mr Lang’s confirmation in his witness statement that the project sheets queried in the First Report are his and are genuine. Thus:
“Lang claims to be the author of the project sheets that I have challenged. He says that they are correct. There are a number of real peculiarities about these project sheets.” (para 263 (c) )
- Mr Watkinson then gives reasons for his doubts. Some are based on the PDF statistical analysis. Others are unrelated to any technical or engineering expertise of Mr Watkinson. For example:
“The project sheet for La Traviata does not contain the correct telephone number for K&A. Also, the publication date for this project sheet is March 1998. Yet Lang did not start working for K&A until April 1998….” (para 263(h) )
- Another example of an excursion beyond Mr Watkinson’s role of independent technical expert is in his conclusion at paragraph 266:
“My investigations have revealed significant and disturbing disparities from what I would have expected. The systematic nature of these disparities, the number of recordings concerned and the sudden departure from what was previously a successful co-operation between the parties suggests that what took place could only have been deliberate.”
- There are many other such examples in both his reports where Mr Watkinson has apparently lost sight of his role as an independent expert in sound engineering, and has adopted a role more akin to an advocate, analysing and reaching conclusions on issues based on factors in relation to which he does not claim to have any particular expertise. Although I do not propose to quote further, this is also evident in paragraphs 274-284 of the Second Report.
- I comment on these unfortunate aspects of the two reports, not to level gratuitous criticism at Mr Watkinson, or because of any view I may have formed either as to where the truth of any of these matters lies or as to any of the substantive issues in the case, but because these characteristics of the reports have a bearing on the issues before me.
THE APPLICATION TO STRIKE OUT
The defendant made an application to strike out the action as an abuse of process, given the delay.
The judge considered the provisions of CPR 3.4(2)
“(2) The court may strike out a statement of case if it appears to the court –
(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings.
(c) that there has been a failure to comply with a rule, practice direction or court order.”
DELAY BY THE CLAIMANT
The defendant argued that there had been extraordinary and inexcusable delay. A trial that should have taken place in October 2002 would not be possible until October 2015 at the earliest.
THE RELEVANT PRINCIPLES
The judge considered the relevant principles in detail.
- There is little dispute as to the principles to be applied in a case such as this, although each side understandably emphasised different aspects of the case law.
- In relation to 3.4(2)(b) Explanatory Note 188.8.131.52 in the White Book 2014 states:
“Rule 3.4(2)(b) is not strictly relevant where the complaint is one of delay rather than a complaint as to the form or content of a statement of case (Western Trust & Savings Ltd v Acland & Lenson (a firm)  L.T.L June 19, 200 (QB). However, in Habib Bank Ltd v Jaffer (Gulzar Haider)  CPLR 438, CA, a claim was struck out where delays were caused by a claimant acting in wholesale disregard of the norms of conducting serious litigation and doing so with full awareness of the consequences (cf. Grovit v Doctor  1 WLR 640;  2 All ER 417, HL, noted in para 3.4.5 below). Delay, even a long delay, cannot by itself be categorised as an abuse of process without there being some additional factor which transforms the delay into an abuse (Icebird Ltd v Winegardner  UKPC 24). The principles of Grovit and Icebird were considered and applied in Adelson v Anderson  EWHC 2497 (QB)…”
- In the latter case at - Tugendhat J set out and summarised the relevant case law (including the Grovit and Icebird decisions referred to in the Note above) on the interaction between delay and abuse of process. The guiding principle is that delay alone, even if it is inordinate and inexcusable, cannot be an abuse of process; but such abuse may arise when delay is combined with some other relevant factor (such as an absence of intention to take a case to trial).
- In respect of the court’s jurisdiction to strike out for failure to comply with rules, practice directions and court orders, the White Book 2014 Explanatory Note 3.4.4 provides the following guidance:
“Rule 3.4(2)(c) gives the court an unqualified discretion to strike out a claim or defence where a party has failed to comply with a time limit fixed by a rule, practice direction or court order.
The relevant circumstances include any prejudice suffered by other parties but it is no longer necessary to consider prejudice in the way it was considered pre-CPR, or to ascribe it to a particular period or periods of delay (Axa Insurance Co Ltd v Swire Fraser Ltd (formerly Robert Fraser Insurance Brokers Ltd)  CP Rep 17;  CPLR 142, CA).
“I can see that were delay to have occasioned prejudice short of an inability of the court to be able to provide a fair trial, then there would be or may be scope for the use of other forms of sanction. But where the conclusion that is reached is that the prejudice has resulted in an inability of the court to deal fairly with the case, there can only be one answer and one sanction; that is for the [proceedings] to be struck out” (per Latham L.J. in Purefuture Ltd v Simmons & Simmons, May 25, 2000, CA).
The relevant circumstances may also include the weakness of the claim even if it is not so weak as to have no real prospects (Cohort Construction (UK) Ltd v M Julius Melchior  C.P. Rep. 23, CA; cf Chapple v Williams  LTL, December 8, CA, concerning applications under r.3.9).
The court’s power to strike out under r.3.4(2)(c) is not confined to circumstances in which the upshot of the party’s failure to comply with a rule, practice direction or order has been serious delay (of the kind that pre-CPR might have led to an application to strike out for want of prosecution), though that is the more usual case…
In Maqsood v Mahmood  EWCA Civ 251, the Court of Appeal held that the judge had been justified in striking out the claim under r.3.4(2)(c) given the failure of the claimant to comply with court orders relating to specific disclosure, exchange of witness statements and delivery of trial bundles. The claimant should have been ready for trial but attended before the judge seeking an adjournment which had been rightly refused. Given the claimant’s hopeless position following the refusal of the adjournment, his case was doomed to be dismissed. The Court of Appeal made the point that the right to a fair trial was a right enjoyed by defendants as well as claimants.”
- Further recent guidance is to be found in the judgment of Hamblen J in The Owners and/or Bailees of the Cargo of the Ship Panamaz Star v The Owners of the Ship Auk  EWHC 4076 (Admlty)(“The Auk“). There a strike out was sought by reference to both delay and abuse of process, and Hamblen J examined the relevant case-law on each head. He helpfully summarised the principles derived therefrom as follows:
As to delay
“37. In summary, the authorities provide the following guidance:
(1) There are no hard and fast rules. The court has to make a broad judgment having regard to all relevant circumstances and the justice of the case.
(2) The relevant circumstances may include the length of, explanation for and responsibility for the delay; whether the Defendant has suffered prejudice as a result and if so how it can be compensated for, and whether the delay is such that it is no longer possible to have a fair trial.
(3) A defendant cannot let time go by without taking action so where delay does cause prejudice to him he cannot say that it is entirely the fault of the claimant.
(4) In considering what is the just and proportionate order to make the court should have regard to the alternative sanctions to that of striking out provided by the CPR.”
As to abuse of process
“38. To commence or to continue proceedings which you have no intention to bring to a conclusion may constitute an abuse of process; see Grovit v Doctor  1 WLR 640: Habib Bank Ltd v Jaffer (The Times on 5 April 2000).
39. As Lord Woolf stated in Arbuthnot Latham Bank Ltd v Trafalgar Holdings  I W.L.R. 1426 at p. 1437:
“Whereas hitherto it may have been arguable that for a party on its own initiative to in effect ‘warehouse’ proceedings until it is convenient to pursue them does not constitute an abuse of process, when hereafter this happens this will no longer be the practice. It leads to stale proceedings which bring the litigation process into disrespect. As case flow management is introduced, it will involve the courts becoming involved in order to find out why the action is not being progressed. If the Claimant has for the time being no intention to pursue the action this will be a wasted effort. Finding out the reasons for the lack of activity in proceedings will unnecessarily take up the time of the court. If, subject to any directions of the court, proceedings are not intended to be pursued in accordance with the rules they should not be brought. If they are brought and they are not to be advanced, consideration should be given to their discontinuance or authority of the court obtained for their being adjourned generally. The courts exist to assist parties to resolve disputes and they should not be used by litigants for other purposes.”
40. Inordinate and inexcusable delay alone does not amount to abuse of process. However, it may do so if it involves a wholesale disregard for the rules of court with full awareness of the consequences; see Habib Bank Ltd v Jaffer at  per Nourse LJ.”
- In The Auk the claim was issued in May 2000 and was subject to an agreed suspension of the procedural timetable until 2004. No steps were then taken between 2005 and 2013, when the claimant applied to list a CMC. The learned Judge struck out the claimant’s claim under rule 3.4(c) on the basis of delay, which he found had caused serious prejudice to the Defendant in that a fair trial was precluded. He so decided even though the defendant was partly responsible for the delay. In view of his finding on delay/breach of rules, the learned Judge made no determination on the alternative ground of abuse of process.
- Both Mr Nathan and Mr de la Mare referred to the dicta of Neuberger J (as he then was) in Annodeus Entertainment Ltd v Gibson (unrep., 2000) identifying a number of potentially relevant factors to which he considered the court should have regard in addressing the question of whether an action should be struck out on grounds of delay. Mr de la Mare emphasised that in the Court of Appeal decision Audergon v La Baguette Ltd  CP Rep 27 Jonathan Parker LJ had indicated (at paragraph 107) that one should be cautious about applying a judicially-created checklist which does not appear in the CPR itself, and which could compromise the flexibility the CPR was designed to achieve. He submitted that the factors in question are simply potentially relevant considerations within the broad range of such considerations under the flexible CPR test.
- The list of factors identified by Neuberger J was set out in the judgment of Jonathan Parker LJ:
“51. …..The list reads as follows (so far as material):
“First, a claimant has and always has had a duty to get on with proceedings, and is liable to sanctions if he does not.
Secondly, this duty was taken more seriously under the RSC even before the CPR came into effect: see Arbuthnot Latham v. Trafalgar Holdings  1 WLR 1426. This is a point of significance because part of the period of the delay was before the CPR came into force.
Thirdly, following the coming into effect of the CPR, keeping to time limits laid down by the CPR or by the court itself is accorded more importance than it was previously, see per Lord Woolf in Biguzzi v. Rank Leisure plc 1 WLR 1926 at 1932G. One sees that principle reflected also in the observations of Lord Lloyd of Berwick in UCB Corporate Services Ltd v. Halifax SW Ltd (unreported 6 December 1999 at paragraph 17).
Fourthly, under the old law a claim could normally only be dismissed for want of prosecution where the plaintiff’s default or delay had been intentional and contumelious, or where he had been guilty of inordinate and inexcusable delay, giving rise to a substantial risk that a fair trial would not be possible, or to serious prejudice to the defendant (seeBirkett v. James  AC 297).
Fifthly, the court is now prepared to dismiss a claim for delay even if neither of Lord Diplock’s two requirements as laid down in Birkett v. James  AC 297 is satisfied (see Biguzzi v. Rank Leisure plc  1 WLR 1926 at 1932 G).
Sixthly, the duty of a claimant to pursue an action expeditiously and in accordance with the rules is all the more important when the claimant has already had a significant benefit at the expense of the defendant from the action — for instance, in this case the benefit of the search order. This is perhaps even more true where the claimant has, and continues to have, the benefit of a continuing interlocutory injunction to the defendant’s disadvantage, which injunction is to run to trial. …
Seventhly, the CPR enable the court to adopt a more flexible approach. The previous “all or nothing” extremes of either dismissing the claim for delay or permitting it to continue are now merely the two ends of a spectrum. The court has other sanctions at its disposal which it can and, in appropriate cases, should impose, rather than adopting one of the two extreme positions. …
Eighthly, in light of general principle and the overriding objective (see CPR r.1.1(2)) the sanction, if any, to be invoked by the court to deal with a particular case of delay should be proportionate. To dismiss a claim where the claimant appears to stand a reasonable chance of success and of recovering substantial damages is a strong thing to do. Particularly so bearing in mind Article 6(1) of the [ECHR] …
Ninthly, it appears to me that it is normally relevant to consider the following factors. First, the length of the delay; secondly, any excuses put forward for the delay; thirdly, the degree to which the claimant has failed to observe the rules of court or any court order; fourthly, the prejudice caused to the defendant by the delay; fifthly, the effect of the delay on trial; sixthly, the effect of the delay on other litigants and other proceedings; seventhly, the extent, if any, to which the defendant can be said to have contributed to the delay; eighthly, the conduct of the claimant and the defendant in relation to the action; ninthly, other special factors of relevance in the particular case.””
EXERCISE OF THE DISCRETION IN THE CURRENT CASE
The judge had little hesitation in striking out the claim under CPR 3.4.
- In view of my findings it is clear that the circumstances here give rise to a discretion to strike out the claimant’s claim under either or both CPR 3.4(2)(b) and (c). In deciding whether to exercise that discretion I remind myself that to strike out a claim, and thereby deprive a claimant of a trial and possibly of relief including an award of damages, is a draconian sanction, and that it is necessary to consider whether there is a different sanction for the delays and non-compliance here which better meets the requirements of proportionality.
- I am told that the claim has been quantified in an amount in excess of £5 million, and I also have regard to that in considering the exercise of my discretion. I do not feel in a position to express even a provisional view on the merits of the claim, nor was I invited by either side to do so. HNH have not sought to argue that the claim is hopeless. It is likely that one material factor will be the trial judge’s assessment of factual evidence about the nature of the claimant’s working practices to which there is reference at paragraph 35 above.
- In exercising my discretion I also need to take account of the fact that HNH bears some responsibility for some of the delay, and therefore for some of the prejudice which results from it. In this regard, however, for the reasons already explained I consider HNH’s fault to be in an entirely different league to that of the claimant, and not of such a nature as to preclude a striking out if that were otherwise the appropriate sanction. Similarly, I need to take account of the fact that some of the delay appears to have been caused by difficulties for the claimant in obtaining and/or retaining public funding. However, for the reasons discussed earlier, I do not regard this aspect as so major a mitigation as Mr Nathan submitted, in the light of the overall delay and the manner in which the claimant’s case has been conducted from the outset.
- In my view there is no alternative sanction available in the present case, and certainly none which would be at all appropriate or proportionate in the light of the inordinate and largely inexcusable delay which has taken place since December 2001, and the claimant’s disregard for the order of the court and the CPR. As a result of these the prospect of a fair trial is, at the very least, seriously impaired, and probably impossible. Even if it were appropriate (which it is not), the usual alternative sanction of costs is simply not realistically available in this case in view of the claimant’s financial situation.
- As I said towards the beginning of this judgment, the proceedings are not much further advanced than they were when the matter came before Park J in 2001. To say that they are stale would be a considerable understatement. Significant public funding has been wasted, not to mention costs incurred by HNH. For the matter to reach trial would require expenditure of very substantial further funds on both sides, including further significant public funding on behalf of the claimant. All costs incurred by HNH are likely to be irrecoverable whatever the result. The court would have to accommodate a lengthy trial some fourteen years after the time when it should have taken place, and in circumstances where the passage of so much time would probably preclude the process amounting to a fair trial. Justice and the overriding objective require that the proceedings should be stopped now.
Conclusion on strike out
- In all the circumstances, I conclude that the appropriate and proportionate order is that the claim should now be struck out on each of the two grounds relied upon by HNH. The counterclaim should also be struck out by concession. The form of the order, together with further and consequential orders, should if possible be agreed by the parties.
THE MORAL: DELAY AT YOUR PERIL
This case is almost akin to the old “want of prosecution test”. Delay of this kind is rare in modern litigation where undue delay of any kind is dangerous for the litigant involved.