DELAY IN PURSUING PROCEEDINGS IS AN ABUSE OF PROCESS: LOCAL AUTHORITY’S INSOUCIENCE A CAUSE FOR CONCERN

In London Borough of Havering & Ors v Persons Unknown & Ors [2021] EWHC 2648 (QB) Mr Justice Nicklin had some clear warnings to give in relation to cases where local authorities had failed to pursue cases promptly after obtaining an interim injunction.  A failure to pursue the action promptly in these circumstances amounts to an abuse of process.

“LB Havering, Nuneaton and Bedworth BC and Warwickshire CC, Rochdale MBC and Thurrock Council have each been guilty of serious failures properly to progress their respective claims to a final hearing. The explanations given for the delays are not adequate. The worst conduct is that of Rochdale MBC which allowed its claim to become dormant for over 2 years following the grant of an interim injunction. The delays in prosecuting their claim were substantial and have not been adequately explained or excused. Each local authority demonstrated a complacency, even insouciance, towards the need to progress the claim. They arrogated solely to themselves the decision as to when the claim should be progressed to a final hearing and whether any periods of delay were justified, whilst all the while holding and enforcing an interim injunction of significant width.“

THE CASE

The claimants were all local authorities who had obtained interim injunctions against travellers. Having obtained the injunctions the main actions were not pursued with speed. The judge found that the claimants’ conduct amounted to an abuse of process.  However the injunctions were not discharged, instead case management decisions were made.

THE JUDGMENT ON THIS ISSUE

Abuse of Process: the law

1. 1. Ms Bolton accepted that was an abuse of process to commence and continue litigation which the claimant had no intention of bringing to a conclusion: Grovit -v- Doctor [1997] 1 WLR 640, 647 per Lord Woolf. Other examples of abusive conduct in this category included ‘warehousing’ claims: Arbuthnot Latham Bank -v- Trafalgar Holdings [1988] 1 WLR 1426, 1437 per Lord Woolf. In Asturion Foundation -v- Alibrahim [2020] 1 WLR 1627 the Court of Appeal reviewed the relevant authorities (including Grovit, Arbuthnot, Realkredit Danmark A/S -v- York Montague Ltd [1999] CPLR 272 and Braunstein -v- Mostazafan & Janbazan Foundation (unreported CA, 12 April 2000). From these Arnold LJ stated the principle as follows ([61]):

“In my judgment [these] decisions … show that a unilateral decision by a claimant not to pursue its claim for a substantial period of time, while maintaining an intention to pursue it at a later juncture, may well constitute an abuse of process, but does not necessarily do so. It depends on the reason why the claimant decided to put the proceedings on hold, and on the strength of that reason, objectively considered, having regard to the length of the period in question. A claimant who wishes to obtain a stay of proceedings for a period of time should seek the defendant’s consent or, failing that, apply to the court; but it is not the law that a failure to obtain the consent of the other party or the approval of the court to putting the claim on hold automatically renders the claimant’s conduct abusive no matter how good its reason may be or the length of the delay.”

1. 1. Ms Bolton argued – based on the authority of A/S D/S Svendborg -v- Awada [1999] 2 Lloyd’s Rep 244, 247-248 – that deciding to await the outcome of an appeal in a related case was not abusive.

1. 1. As Arnold LJ noted in Asturion Foundation, “abuse of process can take many forms” ([44]). Grovit is an example of one type of abuse. It is not the only form. Following the advent of the CPR, the ability of a claimant to delay prosecuting a claim was much reduced. Modern case management means that the Court should set a case management timetable towards an ultimate trial. In multi-track cases, any significant departure from that timetable (and always in respect of any adjustment that might jeopardise key dates) must be sanctioned by the Court: CPR 29.5. It should therefore not now be possible for a claimant to ‘warehouse’ a civil claim. In addition, in normal inter partes litigation, if a claimant delays prosecuting the claim, the defendant can obtain orders from the Court to ensure that the claim is properly progressed.

1. 1. Difficulties can arise, however, in certain types of case. For example, where the defendant takes no active part in the proceedings, where the defendants are (or include) “persons unknown”, and where a court has granted an injunction that affects third parties. Part 8 Claims are particularly at risk of stalling if there is no active defendant and the Court does not provide a case management timetable when the claim is first heard. This is what has happened in each of the four cases with which I am concerned (and there are further examples of lack of progress in other Cohort Claims).

1. 1. What is particularly concerning, however, is when an action stalls or becomes dormant after an interim injunction has been granted. An interim injunction is not an order nisi, or some sort of a ‘test run’ for a final injunction. It is an order that the Court is satisfied is necessary to preserve the position pending the Court’s final determination (see May Judgment [162(1)]); and it will only be granted where there is a “sufficiently real and imminent risk of a tort being committed to justify quia timet relief” and “must be time limited because it is an interim and not a final injunction“: Canada Goose [82(3) and (7)]. An interim injunction is granted based on the evidence as it stood at the time the order was made.

1. 1. As I noted in the May Judgment (see [87]-[90]), there have been examples in other areas of law where claimants have failed to progress their claim to a final hearing after having been granted an interim injunction. Where that interim injunction is capable of binding third parties, the Courts have recognised that a failure properly to progress the claim to a final hearing may amount to an abuse of process which undermines confidence in the administration of justice. In the case of Giggs -v- News Group Newspapers Ltd [2013] EMLR 5, the Court considered the conduct of proceedings by the claimant, who had been granted an interim non-disclosure injunction on 14 April 2011. Eady J had made case management directions on 20 April 2011 which, had they been followed, would have seen the action come to trial between 3 October and 25 November 2011. However, on 12 May 2011, the claimant agreed with News Group Newspapers a general stay regarding service of its Defence but did not communicate this to the Court. As Tugendhat J noted ([25]), that agreement (and the failure to notify the Court) was a breach of CPR 15.5. Without progress to a final hearing, the interim non-disclosure order continued to bind third parties with notice of the terms of the order under the Spycatcher principle (see May Judgment [184]-[185]). Tugendhat J identified the mischief of this situation:

[78] Non-disclosure orders affect the Art 10 right of freedom of expression not only of the defendant, but also of others who may wish to publish or receive information. This is referred to as the ‘Spycatcher principle’ (see Attorney-General -v- Newspaper Publishing plc [1988] Ch 333, 375 and 380). That they have that effect on third parties is one of the main reasons that claimants apply for non-disclosure or privacy injunctions. But the court is required by HRA s.6 not to act in a manner incompatible with the Convention rights. It follows that in cases in which relief granted may affect the exercise of the Convention right of freedom of expression, the court cannot give the same consideration to the autonomy of the parties to the action as it commonly gives to the autonomy of the parties to litigation which does not have the same effect on the Convention rights of third parties.

[79] The Practice Guidance on Interim Non-Disclosure Orders issued by the Master of the Rolls [[2012] 1 WLR 1003] addressed this point specifically:

“Active Case Management

37. Interim non-disclosure orders, as they restrict the exercise of the Article 10 Convention right and, whether or not they contain any derogation from the principle of open justice, require the court to take particular care to provide active case management. …

41. Where an interim non-disclosure order, whether or not it contains derogations from open justice, is made, and return dates are adjourned for valid reasons on one or more occasions, or it is apparent, for whatever reason, that a trial is unlikely to take place between the parties to proceedings, the court should either dismiss the substantive action, proceed to summary judgment, enter judgment by consent,…”

[80] The directions given by Eady J on 20 April… preceded this Guidance, but his order is fully in accordance with it. The effect of privacy injunctions on the Art 10 rights of third parties was well recognised before the Practice Guidance. The directions of Eady J were designed to achieve as quick a trial of this matter as practicable…

1. 1. Tugendhat J held that the way the case had been conducted by the parties had “done much to undermine confidence in the administration of justice“: [91]. One of the reasons why this was so was the claimant’s failure properly to prosecute the claim to a final hearing after the grant of the interim injunction and the effective deactivation of the Court’s case management directions. Tugendhat J noted that there existed an incentive to claimants to abuse the process by delaying:

[103] The effect of s.12 [Human Rights Act 1998] (and the Cyanamid rules on interim injunctions) being so favourable to claimants is that defendants generally offer undertakings, or do not oppose the grant of an interim injunction, as happened in this case on 20 April. But because the law is favourable to claimants in this way, there is an incentive upon claimants to abuse the process of the court, so as to avoid the need to prove their cases at trial. Having obtained an interim non-disclosure order, it may appear to be in a claimant’s interest to hold on to it as long as possible, and proceed to trial as slowly as possible, if at all.

[104] HRA s.12 and the other rules on interim injunctions assume that there will be a trial. Moreover, the anticipated delay between the hearing of the application for an interim injunction and the expected date of the trial is relevant to the further questions which a court has to consider if and when the court is satisfied that the claimant is likely to establish that publication should not be allowed. The court must then go on to consider (as it has to in any application for an interim injunction): (2) would damages be an adequate remedy for a party injured by the court’s grant of, or its failure to grant, an injunction? (3) If not, where does the ‘balance of convenience’ lie?

[105] In particular, the shorter the anticipated delay, the more likely it is that the balance of convenience (or balance of justice as it is better referred to) favours the preservation of the status quo (i.e. non-disclosure). An interim injunction must be no more than is necessary and proportionate to achieve the legitimate aim of protecting the rights of the claimant (including Art 8 rights). So the shorter the period likely to elapse between the making of the interim order and the trial, the more ready the court will be to find that the interference with the Art 10 rights of the claimant and third parties is proportionate. And, of course, vice versa.

[106] It was for this reason that Eady J, in his order of 20 April, laid down a timetable for the matter to proceed to trial. And it is for this reason that the agreement between the parties on 12 May to depart from that timetable was so serious. It was not just a breach of CPR Part 15.5. It was an abuse of the process of the court to interfere with the Art 10 rights of third parties, which had not been approved by any judge.

Abuse of Process: decision

1. 1. LB Havering, Nuneaton and Bedworth BC and Warwickshire CC, Rochdale MBC and Thurrock Council have each been guilty of serious failures properly to progress their respective claims to a final hearing. The explanations given for the delays are not adequate. The worst conduct is that of Rochdale MBC which allowed its claim to become dormant for over 2 years following the grant of an interim injunction. The delays in prosecuting their claim were substantial and have not been adequately explained or excused. Each local authority demonstrated a complacency, even insouciance, towards the need to progress the claim. They arrogated solely to themselves the decision as to when the claim should be progressed to a final hearing and whether any periods of delay were justified, whilst all the while holding and enforcing an interim injunction of significant width. At no stage before the Court’s intervention in October 2020 had any of these Claimants sought directions from the Court. As each Claimant had been granted an interim injunction substantially in the terms of the final order it sought, there was no effective incentive to progress the claim expeditiously. As no defendant has engaged with the proceedings, there was no opposition to this prolonged inactivity. There were cost implications of progressing the claims, a factor that was clearly influencing the decisions taken by, at least, Nuneaton and Bedworth BC and Warwickshire CC.

1. 1. Although I am very far from satisfied with the explanations that have been given for the periods of inaction in the relevant claims, I am nevertheless satisfied, on the evidence, that LB Havering, Nuneaton and Bedworth BC and Warwickshire CC, Rochdale MBC and Thurrock Council did always intend to bring their claims to a final hearing, albeit on their own timetable. The various periods of delay in prosecuting their individual claims do not, on their own, amount to abuse of process. In making this decision, I accept that the Court must shoulder at least some of the responsibility for failing to make case management directions which would have prevented the claims stalling and for effectively placing the case management of the claims solely in the hands of the relevant Claimant(s). The Claimants in the four claims are not guilty of the type of abuse of process under the principles identified in Grovit and Asturion Foundation.

1. 1. Nevertheless, matters do not rest there. The Court’s processes can be abused in many ways. In my judgment, there are clear parallels between interim Traveller Injunctions granted against “Persons Unknown” (at least where they bind ‘newcomers’) and interim non-disclosure orders which bind non-parties by virtue of the Spycatcher principle. In both cases (and unusually in civil litigation), the Court’s coercive powers of injunction (granted only on an interim basis pending trial) reached beyond the immediate parties to the litigation and had an impact on third parties. Where the interim injunction interferes with fundamental rights of those third parties (Article 8 rights of Gypsies and Travellers in Traveller Injunctions and Article 8/10 rights in interim non-disclosure orders), then a failure properly to progress the claim to a final hearing following the grant of an interim injunction may well be found to be an abuse of process for the reasons explained in Giggs.

1. 1. In my judgment, the failure by LB Havering, Nuneaton and Bedworth BC and Warwickshire CC and Thurrock Council properly to prosecute their claims to a final hearing having obtained, and continued to enforce, an interim injunction which bound ‘newcomers’ as “Persons Unknown”, judged objectively, was an abuse of process. Having obtained an interim injunction that affected third parties, each Claimant was under a duty to progress the claim expeditiously to a final hearing and to ensure that case management directions were made that would achieve that. Each of these Claimants failed to do so and the consequent failure to advance the claims to a final hearing was an abuse of process.

1. 1. If a claimant considers that there is good reason why a claim should be delayed – for example to await a decision in another case – then the Court’s sanction for the delay must be obtained. The complete deactivation of all case management which occurred in these claims must not be allowed to happen, particularly in cases where an interim injunction affecting third parties has been granted. Although, in the first instance, this is the Court’s responsibility, the parties also have an obligation to ensure that case management directions are made by the Court.

1. 1. The interim injunction obtained by Rochdale MBC did not bind ‘newcomers’ in the same way. Although they are equally culpable for the failure properly to prosecute their claim, as the injunction did not bind ‘newcomers’, it was not an abuse of process in the way I have found.

1. 1. Although I have found that the failure by LB Havering, Nuneaton and Bedworth BC and Warwickshire CC and Thurrock Council to prosecute their claims was an abuse of process, I nevertheless have to consider whether discharging the injunction they obtained is the right or proportionate response. Although there are powerful arguments that the Court should mark a finding of abuse of the process with an appropriate sanction, narrowly, and in the particular circumstances of these cases, I have reached the conclusion that it would not be right or proportionate to discharge the interim injunctions that were previously granted to the three local authorities. I have reached this conclusion for three principal reasons.

i) First, I am satisfied that none of the local authorities intended to abuse the Court’s process (or were even aware that the failure to progress the claim could be regarded as an abuse). Subjectively, they all had reasons why they had failed to progress the claims and ultimately each did intend to bring its claim to a final hearing. As the Court had made no further directions in the claims, none of the Claimants was in breach of any order.

ii) Second, although analogies were available to be drawn with the Court’s approach in interim non-disclosure cases, there was not a clear authority, warning parties in the position of the claimants, that a failure properly to prosecute claims could be regarded as an abuse of process.

iii) Finally, the better and more proportionate response, in my judgment, is now to ensure that each of the claims is managed as expeditiously as possible to a final hearing. I am satisfied that the finding of abuse of process against a local authority is a sufficient sanction.

1. 1. Finally, it is to be hoped that what has happened in these claims will not be repeated in future claims. The guidance given in the May Judgment ([248]) should, if followed, prevent actions being allowed to stall following the grant of an interim injunction. In the future, however, parties in similar litigation should be well aware of their obligations properly to prosecute their claims and the view that the Court may take of a failure to do so.

THE RISKS OF THE PART 8 PROCEDURE

There have been a few cases recently where judges have observed that use of the Part 8 procedure can give rise to procedural difficulties. Not least because of the absence of formal pleadings.   The judge had concerns in the current case.

1. 1. Practice Direction 8A §9.2 mandates that claims for an injunction under s.187B Town & County Planning Act 1990 must be made by Part 8. I am concerned that the experience in these Cohort claims suggests that, at least where the claim is brought against multiple parties, use of the Part 8 procedure risks causing unfairness to the individual defendants and prevents a proper identification of what is alleged against each defendant. Proper and early identification of the allegations made against individual defendants may require that Particulars of Claim be provided and, even, that the claim be transferred to Part 7 if it appears that it there is likely to be a substantial dispute of fact.

1. Ultimately, it is for the Court to ensure that its processes are fair. I reached the very clear view that the process of bringing a Part 8 Claim against multiple named defendants in these claims has led to a situation that risks causing real unfairness to the named defendants. This is because individual defendants may find it very difficult, practically, to identify what it is that they, personally, are alleged to have done. As Ms Bolton accepted, it is a fundamental requirement in civil litigation that a defendant understands the case that is being made against him/her. I have therefore made orders requiring each local authority to send a letter to each named defendant identifying the allegation(s) that the Claimant is making against each named defendant and the evidence relied upon in support of the allegation(s).