Khosravi v British American Tobacco PLC & Ors [2016] EWHC 123 (QB)

[2016] EWHC 123 (QB)

Case No HQ14X00101

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 28 January 2016

Before

SIR DAVID EADY

Sitting as a High Court Judge

Between

Mehdi KhosraviClaimant

(1) British American Tobacco P.L.C.Defendants

(2) Al Aqili Trading LLCDefendant

(3) Mohammed Saleh Al AqiliDefendant

(4) Mohammed Saeed Mohamed Al AqiliDefendant

(5) B.A.T. Pars Company (Private Joint Stock)Defendant

(6) B.A.T (UK and Export) LtdDefendant

Duncan Macpherson (instructed by Ballantyne Grant) for Claimant

David Head (instructed by Hogan Lovells International LLP) for First and Sixth Defendants

Hearing Hearing dates: 8 and 11 December 2015

Judgment

Sir David Eady :

Introducing the issues

[1]The first and sixth Defendants are within the British American Tobacco group of companies (“BAT”): they make three applications now before the court. The fifth Defendant is also part of the group, but it has not been served and takes no part in these applications. (Nor do the second to fourth Defendants.)

[2]There are two applications dated 29 September 2015. These Defendants seek to set aside various orders made by the Master whereby extensions of time were granted for service of the claim form. For this purpose, they pray in aid CPR 11(1), and/or CPR 3.1(7), and/or 23.10(1). Alternatively, they apply to strike out the claim form and the particulars of claim, relying upon CPR 3.4(2).

[3]The third application was dated 5 November 2015 and seeks, in the further alternative, summary judgment and an order dismissing the claims in their entirety, pursuant to CPR 24.2.

[4]Mr Head placed the strike-out and summary judgment applications in the forefront of his argument, as his clients wished to emphasise the perceived merits of their proposed defence – rather than rely upon any procedural or technical deficiencies. It became apparent in the course of submissions that there was an element of fluidity in the case put forward on behalf of the Claimant, as to whether Mr Macpherson sought to defend the current formulation of his claim, as pleaded, or whether he would prefer to amend the particulars and to defend the reformulated version. No draft was placed before the court, however, and I must therefore proceed to address the case as currently presented. Although the Claimant has been represented by a number of solicitors at various stages of the proceedings, I have been asked to note that so far no lawyer has put his/her name to the pleading.

[5]It is notable that foreign law has not so far been pleaded in support of the claim and the issues of strike-out and summary judgment should accordingly be approached in the light of English law. Indeed, the letter before action cited specifically a number of UK statutory provisions and judicial citations (see e.g. at paragraph 37). It is nonetheless clear that the Claimant wishes now to rely upon the law of the United Arab Emirates (“UAE”), and in particular as to vicarious liability. That would appear to reflect the jurisdiction within which the primary events sued upon took place, although whether choice of law would make any substantive difference remains obscure. Mr Head would wish to argue, for example, that UAE law would present the Claimant with formidable hurdles in trying to establish a cause of action in conspiracy and also generally in relation to vicarious liability. I am certainly not in a position to make any determination on those issues as the pleadings and the evidence now stand.

[6]These Defendants were served, with both the claim form and the particulars, on 8 September of last year. From these it emerged that the Claimant is alleging that the second, third and fourth Defendants were responsible inter alia for committing very serious physical assaults upon him back in September 2008 and that he seeks to attribute responsibility also to these Defendants as principals or, at least, as being vicariously responsible on some basis. The damages sought run into hundreds of millions of pounds. They, however, deny any liability, direct or indirect, for the physical mistreatment the Claimant alleges that he received, and indeed for any form of wrongdoing. By now, therefore, it will be obvious that they are entitled to unambiguous clarity and to detailed particulars of the facts upon which these grave charges are to be laid at their door.

[7]It seems that the Claimant has had some difficult hurdles to overcome in setting out his case: whether he has managed to overcome them, even now, is a matter which lies at the heart of the present applications. The procedural background is informative in this context. The claim was issued as long ago as 10 January 2014 (i.e. some 20 months prior to service upon these Defendants). Originally, the first to fourth Defendants only were joined. It was only on 8 September 2015 that permission was obtained to add the fifth and sixth Defendants. The first Defendant should thus ordinarily have been served no later than on 10 May 2014, but on seven occasions extensions of time were sought and obtained from Masters pursuant to CPR 7.6. Mr Head argues that the reasons given to the court were, every time, wholly inadequate to justify the grant of any such extension: that is why the application was made on 29 September to have them set aside.

[8]It would seem clear from the evidence, and especially from the contemporaneous documents which I consider below, that there never was an agency relationship, as such, between either of these Defendants and any part of the Al Aqili group. The first Defendant is a holding company and had no contractual or commercial relationship of any kind with that group. But there were BAT companies which supplied tobacco products to Al Aqili for sale in Iran and Iraq. Some of those arrangements were not by way of written contracts, but where there were agreements in writing they contained express “no agency or partnership” clauses (exhibited to the evidence adduced by these Defendants). Furthermore, although for a time some Al Aqili companies had distributed BAT products in Iran on their own account, rather than as agents, all commercial relationships between them in relation to that territory had come to an end by November 2006. A new distributor for Iran had been appointed and any sales thereafter by Al Aqili in Iran were unauthorised. Al Aqili continued to distribute in Iraq until March 2008, when finally all links appear to have been severed.

[9]Mr Head places considerable weight on these documents in arguing that the allegation of agency is bound to fail and should thus be struck out. Of course, it would in theory be possible for a corporate entity to give instructions to an individual to commit a criminal offence or to commit a tortious wrong without there being any underlying commercial relationship between them (whether of agency or otherwise). Accordingly, the clear evidence as to a termination of the distributorship would not necessarily be a complete answer in itself. There could in some circumstances be an ad hoc relationship or combination for the specific purpose of kidnap or assault. It is, however, necessary to test the pleaded case in this regard with particular care and also the evidence adduced in support of it. In general terms, I remind myself that the need for cogency and particularity is correspondingly greater when a pleading is advanced in support of a serious allegation of criminal behaviour. A defendant has a right to know and understand the nature of the charge he has to meet: the mere fact that an assertion is made in a pleading does not mean that it is worthy of going to trial.

A summary of the claim now pleaded

[10]In broad terms, the Claimant’s case as now pleaded may be summarised as follows. The second Defendant was between 1994 and 2006 authorised to supply BAT tobacco products within Iran by reason of a licence granted by the state-owned Iranian Tobacco Company (“ITC”). As I have said, it is also alleged that the first Defendant had appointed the second Defendant as its agent for this purpose, which is denied. The Claimant further contends that ITC repeatedly warned BAT (albeit only from 2006 onwards) that those within the Al Aqili group were prepared to resort to violence including murder. It is also central to his case that all the Defendants were motivated by a desire to have terminated an enquiry into the smuggling of cigarettes into Iran, which had been initiated by President Ahmedinejad following his appointment in August 2005. It is said that the smuggling of cigarettes was controlled by the Iranian Revolutionary Guards Corp (“IRGC”), with whom the Al Aqili group maintained a close relationship and, in particular, through a man called General Rezaei.

[11]It is alleged that the General had tried and failed to persuade the President to call off the investigation into smuggling and that all the Defendants had a common interest in achieving this objective. At some point in about February or March 2008, it is claimed that the BAT Defendants threatened to cease their supply of cigarettes to the Al Aqili group unless they found a way of bringing the enquiry to a close. It is implicit in this allegation that these Defendants, knowing by that time of Al Aqili’s propensity to violence, were prepared to sanction its use in achieving that purpose.

[12]Next, it is claimed that at a meeting in March 2008 a plan was devised to use unlawful means to try to bring about the end of the enquiry by implicating the Claimant. Mr Head places emphasis on the inherent implausibility of this scenario. Why, he asks, would it occur to anyone that he should be thought capable of exerting influence on the Iranian government? He describes himself as a “pro-democracy (anti-Iranian regime) activist” who left the country in 2006 after causing the government some offence. Mr Head suggests that such a plot is, therefore, so unlikely that the claim which depends upon it can have little chance of success. I agree that it does seem far-fetched and calls out for an explanation. Experience shows, however, when the subject matter of litigation turns upon allegations of skulduggery in international business transactions, that inherent implausibility is by no means always a sure guide to the merits. People do resort to surprising tactics sometimes where the stakes are high or large profits in prospect.

[13]Mr Macpherson sought to address the notion of inherent implausibility by reference to evidence. He points, for example, to a number of reports, of an official or quasi-official nature, not to show that these Defendants were involved in smuggling cigarettes into Iran in 2006 to 2008, but rather to rebut any suggestion that this was inherently implausible. He relies on allegations or assumptions that BAT companies were so involved in the past – sometimes several decades ago. Whether this is true or not, it would hardly support the gravamen of his case; that is to say, that these Defendants were prepared to instigate or sanction violence in 2008.

The principles to be applied

[14]Against this background, therefore, I prefer to assess the present applications without reference to the elastic notion of inherent implausibility. I will concentrate, primarily, on whether they have been given anything approaching the degree of particularity to which they are entitled, so as to enable them to know the case they would have to meet in respect of such serious charges. That is in the context of the strike-out application.

[15]I was reminded inter alia of the principles explained by Lord Millett, albeit specifically in the context of alleged fraud, in Three Rivers District Council v Bank of England (No 3)

[2003] 2 AC 1

, at [183]-[185]. Also relevant are the words of Teare J in Towler v Wills

[2010] EWHC 1209 (Comm)

, at [18]-[19]:

“Time and costs will, or may, be wasted if the defendant seeks to respond to a vague and incoherent case. It is also necessary for the Court to understand the case which is brought so that it may fairly and expeditiously decide the case and in a manner which saves unnecessary expense. For these reasons it is necessary that a party’s pleaded case is a concise and clear statement of the facts on which he relies.”

This is not always a matter to be judged solely by reference to the pleading, since evidence as to context may be important in understanding what is intended. Further, in some cases, evidence may be introduced which shows that an otherwise defective pleading could be reprieved if new facts are incorporated by amendment. I need to consider whether this applies in the present dispute.

[16]When it comes to the issue of summary judgment, of course, evidence has a more substantive role to play. I must focus shortly upon the evidence adduced in order to assess the plausibility of the Claimant’s case on the undisputed or incontrovertible facts. This is not to conduct a “mini-trial”: it is a legitimate exercise for the court to carry out, and indeed one that is necessary, when deciding, for the purposes of CPR Part 24, whether the claim in question has more than a “fanciful” prospect of success: see e.g. Swain v Hillman

[2001] 2 All ER 91

, CA. That is obviously quite different from deciding a case merely on inherent implausibility.

BAT’s evidence as to the commercial background

[17]These Defendants have put forward a number of witness statements setting out the factual background. Apart from the evidence of Ruth Grant, of their solicitors, there are three statements from senior employees from the BAT group. Peter Cleverly is a qualified solicitor and has signed a witness statement of 5 November 2015. (He was the witness who exhibited the contractual documents referred to in paragraph [8] above.) The second is from Benoit Belhomme, a French avocat, also dated 5 November. Thirdly, there is that of Tarek Najjar, whose position within BAT is Head of Legal and External Affairs for the Middle East region. It is dated 4 November. He later supplemented his evidence with a short statement of 2 December 2015, by way of responding to the material relied upon by the Claimant.

[18]The evidence introduced, and especially regarding the contemporaneous documents, throws valuable light on the state of relations between the BAT companies and the Al Aqili group in the relevant period of 2006 to 2008. The deterioration in their relations is set out in Mr Cleverly’s witness statement by reference to a series of documents, of which perhaps the most significant are letters from the BAT regional marketing director(i) dated 30 January 2007 (emphasising that Al Aqili should desist from selling any BAT products in Iran), and

(ii) dated 15 February 2007 (reiterating that the relationship was at an end and that a replacement purchaser for Iran had been appointed, a Mr Aghahosseini). There is also a letter from the BAT area director dated 22 May 2008. This made clear that the relationship had terminated not only in relation to Iran (in November 2006) but also to Iraq (in March 2008) and referred to various financial disputes outstanding as a result. It would be “fanciful” to suggest that these documents are other than genuine or that they had been concocted for the purposes of this litigation. It is thus difficult to understand how these parties could possibly by then have had any “common interest”, or how they could have trusted each other sufficiently to have become involved in a conspiracy of the kind alleged. This evidence only serves to underline how important it is for the Claimant’s contrary case to be spelt out cogently and without ambiguity. It is now necessary to investigate how he purports to do this, by reference both to the pleaded case and to the evidence so far adduced on his behalf.

Is the present case sufficiently clear?

[19]There is a general case advanced regarding these Defendants in paragraphs 32 and 33 of the particulars. It is said that in February or March 2008 a manager of the first Defendant (unidentified) instructed a manager of the fifth Defendant (also unidentified) to do “anything they could” to stop the smuggling investigation. It is further alleged that these Defendants threatened to cease the supply of products to Al Aqili (which must ex hypothesi have been continuing at that time).

[20]This is plainly unsatisfactory, and especially so in the light of the evidence outlined above. These Defendants cannot know what they would have to do to meet or challenge that case. Even if it were true, it cannot demonstrate any involvement in the alleged application of violence in September 2008. Paragraph 33 contains the suggestion that the plan was devised to use unlawful means to influence the investigation, but again they cannot meet the allegation without much more detail: it is at the moment no more than the barest assertion.

[21]There is also the similar assertion, contained in paragraph 41, to the effect that these Defendants instructed the fourth Defendant (Mr Al Aqili) to do whatever it would take to stop the smuggling enquiry. It is said that, in response, he stated to “other defendants” that the only way to achieve this would be to implicate the Claimant in some unexplained way.

[22]It is alleged in paragraph 42 that the first Defendant knew that Al Aqili would employ unlawful means to secure the acquiescence of the Claimant. This is also in my judgment hopelessly vague and uninformative. The only individual identified is a “Mr Yousefi” who is said to have been instructed by these Defendants to pass on instructions to Al Aqili to put pressure on the Claimant to admit a false allegation (to the effect that he had accepted a bribe on behalf of the government of Iran). Mr Yousefi is only at this point identified as “a deputy manager” of the fifth Defendant. It appears, however, from evidence served on the Claimant’s behalf that he may not be an employee of the fifth Defendant at all, but rather a general in the IRGC. According to the evidence now before the court, extensive searches were carried out: yet no such person has been traced. Mr Yousefi appears again in paragraph 72 of the particulars, where it is claimed that much later, after the letter before action was sent in 2012, he threatened the Claimant and also offered him US $15m not to bring proceedings in England. It is unclear, on the other hand, whether it is being alleged that on these occasions he was acting on behalf of either of these Defendants. This time, he is described as a “deputy director” of the fifth Defendant.

[23]In paragraph 43, the familiar allegation resurfaces to the effect that the fifth Defendant was instructed to do anything it could to stop the investigation, but no further flesh has been put on this very bare bone.

[24]From paragraph 73 onwards, the claim appears to be expressed in terms of breach of a general duty of care – one that is owed apparently to the world at large, and which would render these Defendants liable for any unlawful conduct on the part of Al Aqili. It is, of course, far from clear how that could work as a matter of English law.

The nature of the claim originally put forward

[25]Any credibility in the pleaded case is further undermined by the fact that the letter before action of 2 August 2012, which runs to 86 pages, appears to put the complaint rather differently and by reference to another (albeit overlapping) cast of characters. (Mr Yousefi, for example, was not accorded the central role he has been given in the particulars of claim. Also, the fifth and sixth Defendants were only introduced in September 2015.) It is thus necessary to see whether the evidence now put forward by the Claimant goes any way towards explaining or resolving the discrepancies.

[26]The claim as originally put forward described how a proposal had been made by a Mr ShahMohamadi that the Claimant should invest in a company of his which was supposedly about to become an agent for selling orange juice in the Middle East. He initially agreed to do so, but thought better of it when he discovered that Mr Al Aqili was involved. He therefore made certain allegations against Al Aqili by way of explaining to ShahMohamadi why he was no longer interested. As a result of this, it is alleged, Al Aqili made threats to the Claimant. These included, for example, that his visa for the United Arab Emirates would be cancelled – unless he agreed not to challenge the (untrue) proposition that he had received money from Al Aqili for the purpose of bribing an official in the Iran government. He was shortly afterwards told that his visa was about to be cancelled and that the only way he could prevent this was to admit that he was the person trying to stop “the investigation against BAT in Iran”. In September 2008, the Claimant says that he asked for the return of the $70,000 he had already invested in Mr ShahMohamadi’s company. While he was out of the room, Mr ShahMohamadi is supposed to have stolen his “flash memory” attached to his car keys. This was said to have stored evidence of his political activities and writings. Mr ShahMohamadi was thus in a position to blackmail him and to avoid repaying the sum invested.

[27]The Claimant went on to allege that he was thereafter kidnapped by Al Aqili family members or henchmen, and told that he would not be handed over to the Iranian authorities provided he confessed to taking a $2m bribe for onward transmission to their minister for industry. The object of this was apparently to persuade that person to drop the investigation into smuggling cigarettes into Iran. No explanation is offered as to how the Claimant could have presented himself as a credible intermediary in this context. It was also said that Al Aqili was hoping thereby “to regain their position as BAT’s agent” (emphasis added). This would suggest that Al Aqili had accepted by then that relations with BAT had already come to an end (as was the fact). The prospect at that time of any future relationship with BAT can thus be characterised, even on the Claimant’s case, as wishful thinking on Al Aqili’s part. It is difficult to reconcile this version of events with the Claimant’s present contention that BAT was directly responsible for the kidnapping and assaults in September 2008 (whether by reason of “agency” or “a common interest”).

The Claimant’s evidence

[28]The evidence produced by the Claimant was the subject of much criticism by Mr Head. His own lengthy contribution, so far as these Defendants are concerned, is speculative and amounts to no more than assertion or opinion. There are, in addition, two short witness statements from unnamed persons, to which Mr Head submits the court cannot attach any weight at all. One of them states:

“During period of 2006 until 2008, Iranian Tobacco Company officially informed BAT that Al Aqili group is committing wide range of crime including murder in order to smuggle BAT products and cigarettes, and continues of relation between Al Aqili and BAT is causing a wide range of crime… in 2007 with BAT, Iranian Tobacco Company provided BAT a long list of series (sic) and heinous crime which Al Aqili committed, and Iranian Tobacco Company informed BAT that Al Aqili committed such a crime for smuggling BAT products, but BAT ignored Iranian Tobacco Company warning and relation between Al Aqili and BAT continued until 2009”

. Not only is that bare assertion: it is also inconsistent with the contemporaneous documents to which I have referred. There is no documentary support whatever for the proposition that commercial relations continued until 2009 – let alone that either of these Defendants had any right to control the way in which the Al Aqili companies conducted their business.

[29]The second of the anonymous witness statements contains the following rather disjointed claims:

“Mr Yousefi became angry and responded: don’t ask khosravi politely, force him, bludgeon your way through, there is no other way to stop this investigation. Even our head office are worried about this matter now, and asked us to inform you to do what you can do to stop this madness”

. Again, it raises more questions than it answers and is quite uninformative as to who Mr Yousefi was and what evidence there is as to his acting on behalf of any BAT company. It also lacks cogency and coherence as to the nature of these Defendants’ supposed involvement. Nor does it address the breakdown in relations between BAT and Al Aqili, which had taken place towards the end of 2006. In particular, it does not purport to demonstrate the falsity of the Defendants’ clear evidence in this respect.

[30]There is also a witness statement from a Ms Ghaderi, who claims to have worked in the accounts department of one of the Al Aqili companies between 2005 and 2010. She refers to a meeting in or about March 2008 attended not only by the mysterious Mr Yousefi (whom she identifies as Haj Agha Yousefi) but also by a Mr Nelson “from Head Office of BAT”. Ms Ghaderi claims that her late husband had told her that Mr Nelson “managed all of the market for BAT in middle east”. There is again no documentary support for these assertions and, what is more, the evidence of Mr Najjar shows that the only employees of that name involved in BAT management between 2006 and 2010 were based in parts of the world having no connection with Iran (i.e. Ghana, Australia and South Africa). Once again, therefore, the evidence amounts to no more than bare assertion and is incapable of plugging the gaps in the pleaded case. She says nothing, for example, by way of rebutting the unequivocal evidence of these Defendants’ witnesses that(i) relations with Al Aqili had been terminated and

(ii) any distribution by them of BAT products in Iran after November 2006 was unauthorised.

[31]Moreover, Ms Ghaderi lists those present at the impromptu meeting in March 2008, in her own room, as having been Al Aqili, Yousefi and Nelson, whereas the particulars of claim (in paragraph 33 under the heading ‘PARTICULARS OF CONSPIRACY’) refer to the following, “a representative of the 1st Defendant’s company BAT Middle East, two managers and other representatives of Grand Azim Distribution Ltd (the 2nd Defendant’s company), and representatives of the 4th and 5th Defendants”. That is an inconsistency in relation to what is presumably a central part of the Claimant’s case on conspiracy.

[32]She also added that Mr Al Aqili told Nelson:

“Khosravi is a crazy guy who previously had a blog against the government, and forced to escape, he is afraid to return to Iran. I can put pressure on him by cancelling his visa”

. This makes it very difficult to understand what part the Claimant was to play in the supposed plot. Was he himself supposed to be able to bring the investigation to an end (if “pressure” was applied)? Or was he supposed to be credible as someone who might have received a bribe on behalf of the minister for industry? Moreover, why would the Al Aqili Defendants wish to incriminate themselves in this way in the eyes of the Iranian government? These unanswered questions highlight the lack of cogency and coherence in the pleaded case. The Defendants must be able to understand the nature and rationale of the “plot” to which they are supposed to be parties – as well as the individuals who are said to be the perpetrators.

[33]Something needs to be produced, whether by way of pleading or evidence, to show that there are substantial grounds on which to sue one or more of the BAT companies, other than a mere concern on the Claimant’s part that he may not be able to recover anything against the Al Aqili group. He may feel that he would be better placed to enforce any judgment against the well known BAT group and/or calculate that they would be more likely to make a substantial commercial payment to avoid becoming bogged down in lengthy and expensive litigation. It is necessary in such circumstances that the court requires him to establish cogent and solid grounds as the basis of his claim. These would plainly have to go beyond the fact that there was once a legitimate business relationship between them (which expired well before the material events complained of in 2008).

[34]There are a number of quasi-expert opinions put forward in addition, to which I do not see that I can properly give any weight: they do not offer any assistance on the issues I have to determine.

My conclusions as to strike-out and summary judgment

[35]I am quite satisfied that the pleading is woefully lacking in particulars. I will, therefore, accede to the strike out application under CPR 3.4. Furthermore, having regard to the whole of the evidence now before the court, I cannot see that the claim has a realistic prospect of success (i.e. one that is more than fanciful). Notwithstanding all the delays for the purpose of gathering evidence, there is a troubling lack of cogency in the case put forward. What is more, it appears to be quite inconsistent with the contemporaneous documents. I would accordingly grant the application for summary judgment under CPR 24. I adopt the phrase of Lord Hobhouse in Three Rivers District Council v Bank of England (No 3), cited above, at [158]: there is indeed an “absence of reality”.

[36]Mr Head developed also a powerful argument about the uncertainties in the Claimant’s case on the quantification of his alleged loss and damage, which is measured in hundreds of millions of pounds. The criticisms relate both to the supposed effect on his health and to the financial impact on his business activities. In the circumstances, however, I see no need to analyse these additional problems in the light of my conclusions about his case on liability.

Should there now be an adjournment?

[37]Mr Macpherson mooted the possibility of an adjournment with a view to possible amendment. I am not prepared to withhold the orders proposed, which seem to me to reflect the merits of the case as they now stand, or to adjourn the applications to give an opportunity to amend. As I noted above, there is no draft before me and I have no clear picture as to how the claim could be rendered more effective given the totality of the evidence I have seen.

The arguments on setting aside the extensions of time

[38]Finally, although it is strictly unnecessary to do so, I will address counsel’s submissions on the application to set aside the extensions of time for service of the claim form and particulars of claim. It was made in reliance upon CPR 11(1) and, as appropriate, within 14 days of the acknowledgement of service. For good measure, alternative applications were also made under CPR 23.10 and 3.1(7).

[39]The jurisdiction to extend time under CPR 7.6 must obviously be exercised in accordance with the overriding objective. A good reason must be given: see e.g. Hashtroodi v Hancock

[2004] 3 All ER 530

and Hoddinott v Persimmon Homes

[2008] 1 WLR 806

. Mr Head argues that none has been provided by the Claimant in this case. While it has naturally been recognised that a litigant can establish a good reason where he has been unable to serve despite his best efforts, it seems clear that the court will not generally recognise mere lack of funding as such a reason: Cecil v Bayat

[2011] 1 WLR 3086

. Yet, as the Claimant accepts, this was put forward by himself and/or his then solicitor (Mr Barklem) as one of the two grounds for an extension.

[40]The other basis advanced was that time was needed to gather further evidence. This might have justified the seeking of a stay (at an inter partes hearing) once the proceedings were launched (on the basis of evidence already obtained), but it is hard to see how it would be a reasonable ground for holding up service of the claim form for nearly 18 months.

[41]I was invited to err on the side of generosity, having particular regard to the stress and poor health with which the Claimant has had to contend in recent years. On the other hand, the Defendants too are entitled to consideration and fair treatment in the litigation process. The longer the case is allowed to drag on, the greater the time and expenditure they will have to devote to it (with little prospect of recovering their costs if ultimately successful). They are entitled not only to clarity in the formulation of the claim, but also to be able to see at least the prospect of light at the end of the tunnel. This is especially so where the claim in question depends upon events alleged to have taken place many years ago.

[42]Sometimes, where a claimant’s difficulties can already be seen as attributable to wrongdoing on the part of the defendant (as often happens in personal injury or clinical negligence cases), it may be appropriate for the court to show a degree of forbearance if the claimant has to overcome hurdles in coping with the litigation in consequence. There may be circumstances in which a defendant should not be permitted to take unfair or tactical advantage of its own wrongdoing. Here, however, there is a fundamental issue as to whether any of this Claimant’s problems should be laid at the door of these Defendants at all.

[43]The overriding objective requires that the disciplines imposed by the CPR should not be allowed to lapse unnecessarily. Any delay in the normal timetable must be justified by the applicant. Such extensions should certainly not be granted as a formality or go through “on the nod”. The claim form would ordinarily have been due for service on the first Defendant in May 2014, but the extensions meant that the whole process was delayed for over 16 months. Then two more Defendants were added, which would in itself be likely to entail further delay as they acquaint themselves with the facts. All this was against the background of apparent inactivity following the initial letter of 2 August 2012 and especially during the prolonged silence between 30 March 2013 and 27 February 2015 (described in the witness statement of Ruth Grant at paras 14-15). It seems to me, therefore, that the scope for indulgence had become rather limited. Were it not for the orders I propose to make under CPR 3.4 and 24.2, I would therefore have been willing to set aside the extension orders.

The final outcome

[44]I will, therefore, accede to the application to strike out the claim form and particulars, and I will also grant summary judgment. If necessary, I will hear counsel further as to the final terms of the order.