“In my judgment, then, the position is as follows. There are two separate questions. The first is whether there has been an abuse of process. That is an evaluative, but not a discretionary decision. It is the fulcrum on which the existence of the discretion turns, and the test is given by Alibrahim. The focus at that point is on the claimant’s intent (whether it deliberately decided not to progress the case), its reasons for that, and the objective strength of those reasons as a justification for the delay. The second question, which arises only once abuse has been found, is discretionary in the full sense: how should the court respond to the abuse that has been identified? Under the CPR, the proper approach to the exercise of that discretion does not depend on “compelling reasons”, but on the application of the principles that govern the court’s exercise of such discretion under the CPR, including proportionality and the overriding objective. The result of the exercise will “frequently” be that the claim will be struck out. But that is because that will “frequently” be what the overriding objective requires, not because there is some special test of “compelling reason”.”
“(a) First, did BlackBerry deliberately decide not to pursue the claim? Without such a decision, this is merely a case of "long delay" which is not itself an abuse of process. If there was such a decision, the case may (but may not) disclose an abuse of process. (b) Second, if there was such a decision, what delay did it cause? (c) Third, if there was such a decision, what were the reasons for it? (d) Fourth, do those reasons objectively justify the delay? That involves both the previous questions, because a reason that is good enough to justify a short delay may not be good enough to justify a longer one. I should conclude that there has been an abuse of process if, but only if, the claimant took a deliberate decision not to progress the claim towards decision for reasons which were, judged against the length of the delay, not objectively sufficient. (e) Finally, if there was an abuse of process, is the appropriate response to that abuse, having regard to the overriding objective and the effect of the abuse, to strike out the claim. I should consider proportionality, including alternatives (short of strike out) that would adequately meet the overriding objective, and the responsibility of and prejudice to both parties and effect on the court. I should not approach this exercise in a spirit of indulgence, or on the false assumption that prejudice is an essential component of the analysis (it is clear, from Grovit, that it is not); I must remember that the overriding objective involves not merely fair trial, but the enforcement of rules and practice directions; but I should not insist on the existence of a “compelling reason” not to strike the claim out.”
“I must therefore consider the appropriate response to this abuse of process, and specifically whether it justifies striking out the claim. If I had accepted the proposition that, having found abuse, a strike-out should follow unless there are “compelling reasons” to the contrary, I would have been bound to strike the claim out, for no such compelling reason has been identified. But, for reasons I have explained, I do not accept that that is the applicable test, and I will consider the circumstances more broadly.”
“Although BlackBerry's decision not to proceed with the claim from September 2020 until July 2024 was an abuse of process, I consider that in all the circumstances of this case striking out the claim is not the appropriate or just response. By a narrow margin, I consider that striking out the claim would be disproportionate, and would not best advance the overriding objective. The key factors in this decision are as follows: a) The delay has not caused specific identifiable prejudice to Optiemus, other than in respect of interest, which can be financially estimated and adequately corrected for if interest is awarded or by a condition I discuss below. I have not lost sight of the fact that general non-specific prejudice will have been caused, and have taken that into account, alive to the risk delay often does its damage drop by drop. But the damage done by the time that has passed is limited in a case which is likely to depend mostly on documents passing between the parties, and I have no doubt that the case remains capable of fair decision. b) Striking out the claim would cause specific, and substantial, prejudice to BlackBerry, which would be deprived of the ability to pursue admittedly arguable claims for sums exceeding USD 6 million. c) I have had firmly in mind the stress the cases consistently lay on diligent pursuit of litigation; the significance of sanctions in deterring abuse; and the fact that the overriding objective is concerned not just with fair trial but with the enforcement of the rules. But the abuse that I have identified (abuse though it is) was not of the most serious kind. This was not “warehousing” in the sense of the bulk commencement of large numbers of claims, followed by strategic selection of those that turned out to be most valuable: BlackBerry began a single, and arguable, claim with every intention of pursuing it; it did not abandon the claim, although it neither pursued it nor took systematic steps to address the delay or monitor the position. Although BlackBerry's decision was deliberate, it was not intended to prejudice Optiemus, did not involve any breach of any specific rule, and was not in bad faith. d) The delay was prolonged. That is somewhat mitigated by Covid-19. Although I have not accepted that the problems with service that the pandemic caused can be an explanation for the delay after September 2020 or thereabouts, the original decision to suspend activity in March 2020 was justifiable, and some allowance (by way of mitigation, rather than justification) can and should be made for that and for the confusion caused by the disruption of 2020–21. Some margin of appreciation should be allowed for BlackBerry considering, in mid-2020 that Optiemus’s financial position needed thought, albeit that is objectively insufficient to justify most of the very long delay that occurred. e) If BlackBerry had wished to do so it could have discontinued the proceedings in 2020 (CPR 38.3 ), and that had it done so it would not have required the court’s permission to bring the claim afresh, because underCPR 38.7 such permission is not required if the claimant discontinues before a defence is filed. Its failure to do so cannot be explained as an attempt to avoid the costs consequences of discontinuance, since it is unlikely that Optiemus would have had any significant claim for costs. If BlackBerry had discontinued, it would have been free—in July 2024—to bring its claims, most or all of which would not at that point have been time barred. BlackBerry did not, therefore, need to make an application to the court for a stay: it could have disengaged and re-engaged by its own unilateral act, within the rules. This, too, affects the seriousness of the abuse. f) When considering proportionality, it is legitimate to bear in mind that the obligation to advance proceedings lies on both parties, and that Optiemus itself did nothing at all in the period from March 2020 onwards to advance them; it was in default throughout this period (if it wished to contest the proceedings) by not serving a defence; it did not contact BlackBerry to discover its intentions. Its approach was one of complete disengagement. These were not the actions of a vulnerable individual defendant, but of a publicly listed company equipped with a legal department and well capable of looking after its interests, which presumably thought that those interests were best served by preserving radio silence. When the case was revived, and with the benefit of expert legal guidance, Optiemus’s first reaction was not loud protest about that, but to engage with the merits, and it did not issue a strike out application until many months of correspondence had passed. g) As a subsidiary factor, BlackBerry has other claims which it has never brought, and which are not time barred. Those are claims that it is difficult to see (subject to any argument on the substance about abandonment) it could not pursue, and will raise many of the same questions as the existing claims. In some respects, it might be thought, it is in the interests of all parties including Optiemus that they should be tried as part of this claim, because in so far as Optiemus’s response is to raise a counterclaim which might now itself be time barred if BlackBerry brought those claims as free-standing ones, that avoids any risk that BlackBerry might maintain that Optiemus cannot rely on its counterclaim defensively. h) There are steps that the court can take, short of strike out, to address what has occurred. Those steps include the condition that I will consider imposing in relation to interest (see below); they may include the order for costs made on these applications; they include the way the court approaches disclosure, particularly of the WatchDox documents; they may include the scope of disclosure for Optiemus; and they will include the way that the trial judge approaches any submissions about adverse inferences to be drawn from absent witnesses or missing documents.” a) The delay has not caused specific identifiable prejudice to Optiemus, other than in respect of interest, which can be financially estimated and adequately corrected for if interest is awarded or by a condition I discuss below. I have not lost sight of the fact that general non-specific prejudice will have been caused, and have taken that into account, alive to the risk delay often does its damage drop by drop. But the damage done by the time that has passed is limited in a case which is likely to depend mostly on documents passing between the parties, and I have no doubt that the case remains capable of fair decision. b) Striking out the claim would cause specific, and substantial, prejudice to BlackBerry, which would be deprived of the ability to pursue admittedly arguable claims for sums exceeding USD 6 million. c) I have had firmly in mind the stress the cases consistently lay on diligent pursuit of litigation; the significance of sanctions in deterring abuse; and the fact that the overriding objective is concerned not just with fair trial but with the enforcement of the rules. But the abuse that I have identified (abuse though it is) was not of the most serious kind. This was not “warehousing” in the sense of the bulk commencement of large numbers of claims, followed by strategic selection of those that turned out to be most valuable: BlackBerry began a single, and arguable, claim with every intention of pursuing it; it did not abandon the claim, although it neither pursued it nor took systematic steps to address the delay or monitor the position. Although BlackBerry's decision was deliberate, it was not intended to prejudice Optiemus, did not involve any breach of any specific rule, and was not in bad faith. d) The delay was prolonged. That is somewhat mitigated by Covid-19. Although I have not accepted that the problems with service that the pandemic caused can be an explanation for the delay after September 2020 or thereabouts, the original decision to suspend activity in March 2020 was justifiable, and some allowance (by way of mitigation, rather than justification) can and should be made for that and for the confusion caused by the disruption of 2020–21. Some margin of appreciation should be allowed for BlackBerry considering, in mid-2020 that Optiemus’s financial position needed thought, albeit that is objectively insufficient to justify most of the very long delay that occurred. e) If BlackBerry had wished to do so it could have discontinued the proceedings in 2020 (CPR 38.3 ), and that had it done so it would not have required the court’s permission to bring the claim afresh, because underCPR 38.7 such permission is not required if the claimant discontinues before a defence is filed. Its failure to do so cannot be explained as an attempt to avoid the costs consequences of discontinuance, since it is unlikely that Optiemus would have had any significant claim for costs. If BlackBerry had discontinued, it would have been free—in July 2024—to bring its claims, most or all of which would not at that point have been time barred. BlackBerry did not, therefore, need to make an application to the court for a stay: it could have disengaged and re-engaged by its own unilateral act, within the rules. This, too, affects the seriousness of the abuse. f) When considering proportionality, it is legitimate to bear in mind that the obligation to advance proceedings lies on both parties, and that Optiemus itself did nothing at all in the period from March 2020 onwards to advance them; it was in default throughout this period (if it wished to contest the proceedings) by not serving a defence; it did not contact BlackBerry to discover its intentions. Its approach was one of complete disengagement. These were not the actions of a vulnerable individual defendant, but of a publicly listed company equipped with a legal department and well capable of looking after its interests, which presumably thought that those interests were best served by preserving radio silence. When the case was revived, and with the benefit of expert legal guidance, Optiemus’s first reaction was not loud protest about that, but to engage with the merits, and it did not issue a strike out application until many months of correspondence had passed. g) As a subsidiary factor, BlackBerry has other claims which it has never brought, and which are not time barred. Those are claims that it is difficult to see (subject to any argument on the substance about abandonment) it could not pursue, and will raise many of the same questions as the existing claims. In some respects, it might be thought, it is in the interests of all parties including Optiemus that they should be tried as part of this claim, because in so far as Optiemus’s response is to raise a counterclaim which might now itself be time barred if BlackBerry brought those claims as free-standing ones, that avoids any risk that BlackBerry might maintain that Optiemus cannot rely on its counterclaim defensively. h) There are steps that the court can take, short of strike out, to address what has occurred. Those steps include the condition that I will consider imposing in relation to interest (see below); they may include the order for costs made on these applications; they include the way the court approaches disclosure, particularly of the WatchDox documents; they may include the scope of disclosure for Optiemus; and they will include the way that the trial judge approaches any submissions about adverse inferences to be drawn from absent witnesses or missing documents.”
“Overall therefore, taking those factors into account, I think it would be inappropriate, and inconsistent with the overriding objective, to exercise my discretion to strike the claim form out, despite the abuse of process that BlackBerry was responsible for. That does not mean that I shall not consider what steps I may take, both as to costs and (as set out below) as to conditions that I may require if the stay is to be lifted.”
“(1) These Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost. (2) Dealing with a case justly and at proportionate cost includes, so far as is practicable – (a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence; (b) saving expense; (c) dealing with the case in ways which are proportionate – (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly; (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; (f) promoting or using alternative dispute resolution; and (g) enforcing compliance with rules, practice directions and orders.” (a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence; (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party; (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; (g) enforcing compliance with rules, practice directions and orders.”
“The court must seek to give effect to the overriding objective when it – (a) exercises any power given to it by the Rules; or (b) interprets any rule subject to rules 76.2, 79.2 and 80.2, 82.2 and 88.2.” (b) interprets any rule subject to rules 76.2, 79.2 and 80.2, 82.2 and 88.2.”
“(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case. (2) The court may strike out a statement of case if it appears to the court – (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (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; …” (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (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; …”
“The courts exist to enable parties to have their disputes resolved. To commence and to continue litigation which you have no intention to bring to a conclusion can amount to an abuse of process. Where this is the situation the party against whom the proceedings is brought is entitled to apply to have the action struck out and if justice so requires (which will frequently be the case) the courts will dismiss the action. The evidence which was relied on to establish the abuse of process may be the plaintiff’s inactivity. The same evidence will then no doubt be capable of supporting an application to dismiss for want of prosecution. However, if there is an abuse, it is not strictly necessary to establish want of prosecution under either of the limbs identified by Lord Diplock in Birkett v James[1978] AC 297 .”
“I therefore would strike the action out upon the basis that it came to be an abuse of the process of the Court. I realise that the plaintiffs can and may well start a fresh action, but that is to my mind not determinative. Once the action came to amount to an abuse of the process of the Court, it required to be struck out unless compelling reasons to the contrary could be demonstrated. There are no such reasons in this case. I therefore would allow this appeal and order that the action be struck out …”
“The more ready recognition that wholesale failure, as such, to comply with the rules justifies an action being struck out, and as long as it is just to do so, will avoid much time and expense being incurred in investigation [sic] questions of prejudice, and allow the striking out of actions whether or not the limitation period has expired.”
“46. The Civil Procedure Rules are a new procedural code with an overriding objective enabling the court to deal with cases justly in accordance with considerations which include those to be found in rule 1.1(2). One element expressly included in rule 1.1(2) as guiding the court towards dealing with cases justly is that the court should ensure, so far as is practical, that cases are dealt with expeditiously and fairly. Delay is, and always has been, the enemy of justice. The court has to seek to give effect to the overriding objective when it exercises any powers given to it by the rules. This applies to applications to strike out a claim. When the court is considering, in a case to be decided under the Civil Procedure Rules, whether or not it is just in accordance with the overriding objective to strike out a claim, it is not necessary or appropriate to analyse that question by reference to the rigid and overloaded structure which a large body of decision under the former rules had constructed. Mr Lewis QC, for the claimant in this case, has correctly not sought to do so. 47. As Lord Woolf MR said in Biguzzi v Rank Leisure Plc[1999] 1 WLR 1926 at 1934G (“Biguzzi”): “Earlier authorities are no longer generally of any relevance once the CPR applies.” “50. Lord Woolf MR in Biguzzi drew attention to the armoury of powers which the court has under the Civil Procedure Rules in addition to that of striking out: see in particular his judgment at 1932G to 1934C. In doing so, he was doing no more than emphasising the range of powers available to the court in its search for justice, indicating that the court should consider such powers as may be relevant to a particular case before deciding which to use. He was not indicating that any one of those powers was inherently more appropriate than any other. Mr Lewis has, correctly in my view, not suggested otherwise. 51. The effect of this is that, under the new procedural code of the Civil Procedure Rules, the court takes into account all relevant circumstances and, in deciding what order to make, makes a broad judgment after considering available possibilities. There are no hard and fast theoretical circumstances in which the court will strike out a claim or decline to do so. The decision depends on the justice in all the circumstances of the individual case. As I read the judgments of Lord Lloyd of Berwick and Ward LJ in the UCB case [sc. UCB Corporate Services Ltd v Halifax (SW) Ltd [1999] CPLR 691], they are saying nothing different from this. As Ward LJ said in the UCB case, Lord Woolf MR in Biguzzi was not saying that the underlying thought processes of previous decisions should be completely thrown overboard. It is clear, in my view, that what Lord Woolf was saying was that reference to authorities under the former rules is generally no longer relevant. Rather is it necessary to concentrate on the intrinsic justice of a particular case in the light of the overriding objective. 52. What I have said so far applies to original first instance decisions. Those decisions are necessarily made in the exercise of the broad discretion to which I have referred. If a party seeks to appeal such a decision, as is the case before us, this court applies what Lord Woolf MR said in Biguzzi at 1934F: “Under that approach judges have to be trusted to exercise the wide discretions which they have fairly and justly in all the circumstances, while recognising their responsibility to litigants in general not to allow the same defaults to occur in the future as have occurred in the past. When judges seek to do that, it is important that this court should not interfere unless judges can be shown to have exercised their power in some way which contravenes the relevant principles.” “Earlier authorities are no longer generally of any relevance once the CPR applies.” “Under that approach judges have to be trusted to exercise the wide discretions which they have fairly and justly in all the circumstances, while recognising their responsibility to litigants in general not to allow the same defaults to occur in the future as have occurred in the past. When judges seek to do that, it is important that this court should not interfere unless judges can be shown to have exercised their power in some way which contravenes the relevant principles.”
“48. It is no longer appropriate for defendants to let sleeping dogs lie: cf. Allen v McAlpine (Sir Alfred) & Sons[1968] 2 QB 229 . Thus a defendant cannot let time go by without taking action and then later rely upon the subsequent delay as amounting to prejudice and say that the prejudice caused by the delay is entirely the fault of the claimant. Such an approach would in my judgment be contrary to the ethos underlying the CPR, quite apart from being contrary to paragraph 2.7 of the Part 23 Practice Direction. One of the principles underlying the CPR is co-operation between the parties. 49. However that may be, I recognise that in this case the CPR did not come into force until26th April 1999 , some three months after the claimants should have set the action down for trial pursuant to the order of1st December 1998 . The essential question in every case is: what is the just order to make, having regard to all the circumstances of the case? As May LJ put it, it is necessary to concentrate on the intrinsic justice of a particular case in the light of the overriding objective. The cases to which I have referred emphasise the flexible nature of the CPR and the fact that they provide a number of sanctions short of the draconian remedy of striking out the action. It is to my mind important that the master or judge exercising his discretion should consider alternative possibilities short of striking out.”
“Having said all this, I respectfully think that Richards J was correct to be concerned at the possibility that the approach to the exercise of discretion under the CPR might be misunderstood to have drawn the teeth from the court's response to abuse of process. Grovit abuse is an inherently serious matter, both because it involves a subjective intention that is repugnant to the proper conduct of litigation and because of its effect on the efficient administration of the justice system as a whole and individual cases in particular. The overriding objective itself identifies the need to ensure that cases are dealt with expeditiously and fairly and the importance of having regard to the resources of the court and the calls of other court users. Further, the jurisdiction to strike out for Grovit abuse specifically does not depend on prejudice to the defendant in the particular case. For my part, I should be hesitant to say, with the deputy judge in Quaradeghini [Sc. Quaradeghini v Mishcon de Reya[2019] EWHC 3523 (Ch) ,[2020] 4 WLR 34 ], that it will be “relatively rare” that the court will respond in the first instance by striking a claim out; I should be equally reluctant to call strike-out the “normal” approach. Sometimes it will be the just and proportionate response and sometimes it will not be. This is a matter for the court in the light of all the circumstances of the case. In my respectful view, the judgment of Clarke LJ in Asiansky, with its reference to Biguzzi and to the observations on that case by May LJ in Purdy v Cambran, shows how the matter ought to be dealt with.”
“Under the CPR, the proper approach to the exercise of that discretion does not depend on “compelling reasons”, but on the application of the principles that govern the court’s exercise of such discretion under the CPR, including proportionality and the overriding objective. The result of the exercise will "frequently" be that the claim will be struck out. But that is because that will "frequently" be what the overriding objective requires, not because there is some special test of “compelling reason”.”
“Once the conclusion is reached that the claimants’ conduct was abusive, the question arises, how should the court respond? That must depend on all the circumstances of the case, but before turning to those circumstances it is necessary to consider what the court is seeking to achieve. I would identify three principles. First, the objective is not to punish the abusive party, but to protect the court’s own process, which exists for the wider administration of justice and is not solely concerned with the outcome of any particular case. Accordingly the court has an interest in protecting its process by an appropriate response which is independent of the interests of the victim of the abuse. Second, protection of the court’s own process includes an element of deterrence, so that others are not tempted to abuse the process of the court in a similar way. Third, the court’s response should be proportionate to the conduct in question. In some cases, however, the abuse may be such that it is appropriate to speak of a party having forfeited its right to have its claim (or defence) determined. The court has a broad discretion as to how best to give effect to these principles, with which an appellate court will only interfere in the limited circumstances in which it will interfere with any other exercise of discretion by a first instance judge.”