PI Brief Update

The Importance of Discretion After Cable: Ahmed v Chojnowski [2022] EWHC 2863 (KB) - Sebastian Bates, Temple Garden Chambers

19/12/22. In Cable v London Victoria Insurance Co Ltd [2020] EWCA Civ 1015, the Court of Appeal emphasised at [73] that ‘[h]aving established that there was an abuse of process, the second step for the court is the usual balancing exercise, in order to identify the proportionate sanction’. In this regard, the Court stressed that ‘[s]triking out the claim is an option, but [. . .] it is not the only, or even the primary, solution’.

The Court highlighted at [75] the need to give ‘proper weight to the consequences of striking out [a] claim and depriving [parties] of [their] Article 6 rights’ and observed at [77] that ‘delays’ in litigation are ‘[u]sually [. . .] capable of being compensated for in costs or by way of other financial sanctions, although that will always depend on the facts of the individual case’.

Summary

In the present case, as Hill J explained at [2]–[25], the Claimant had failed to fully respond to surveillance footage, which had prevented both parties from proceeding with the procedural steps that they had agreed in an unapproved and unsealed consent order. The Defendant had subsequently applied to strike out the claim on the basis that achievement of the proposed trial window was no longer possible.

Having regard to the overriding objective, Master McCloud considered that the Claimant’s failure to progress the agreed timetable amounted to obstruction of the just disposal of proceedings and thus abuse of process and decided to strike out his claim (see [35]–[40]).

Hill J rejected (at [47]–[70]) the Claimant’s appeal insofar as he contended that the Master had erred in concluding that failure to comply with an agreed timetable in a draft consent order could amount to an abuse of process or that failure to comply with the overriding objective could amount to abuse of process to the extent that such failure meant that the party concerned had failed in its duty to help the court to further that overriding objective.

Conclusion and Comment

Hill J nevertheless allowed the Claimant’s appeal.

Although Hill J accepted that the Master was ‘fully entitled to find an abuse’ at [87], she found at [90] that in proceeding to strike out the claim the Master had made ‘no mention [. . .] of the second stage of the Cable test, the proportionality concept or the weighing of factors for and against the proposition that strike out was a proportionate response to the abuse’.

Thus, Hill J ‘conduct[ed] the two-stage assessment afresh’ at [93]–[97]. On the basis that there had been an abuse of process, Hill J considered that the impact on the Defendant could ‘be addressed in costs and by other financial sanctions’ and so reinstated the claim subject to appropriate sanctions and directions.

Hill J’s judgment consequently reminds practitioners and judges of the importance of an explicit exercise of discretion at the second stage identified in Cable.

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