CL-2017-000323 - [2025] EWHC 2876 (Comm)

PRINCIPLES

The court has broad powers under CPR 3.1 and 3.4, and its inherent jurisdiction, to control its own proceedings and to guard from abuse of process. Striking out a Defence, or debarring a defendant from participation in the proceedings, are some of the means by which it does so, but are not steps to be taken lightly given their effect. The most obvious examples relate to non-compliance with Court orders. Thus, failure to comply with interlocutory costs orders, and failure to comply with disclosure orders, have led to this form of relief (see e.g. Al Saud v Gibbs [2024] EWHC 123 (Comm)) as has failure to file compliant pleadings and evidence as ordered: see e.g. Barclay Pharmaceuticals Limited v Mekni [2025] EWHC 1219 (Comm).

The breach of a Court order or rule is not a pre-requisite. In the analogous context of whether there should be a strike out for an abuse of process under CPR r3.4(2)(b), the court considers (a) whether the conduct was an abuse of process, and (b) whether in the exercise of its discretion, the relevant claim, pleading etc should be struck out. At stage (b), a balancing exercise, having regard to considerations of proportionality, is undertaken, with the court undertaking a close merits-based analysis of all the facts: see Cable v Liverpool Victoria Insurance Co Ltd [2020] 4 WLR 110 at [63]. There is no difference in principle where the relief being contemplated is not strike-out but simply debarring, in post-trial proceedings where there are no statements of case.

As to the threshold for whether there has been an abuse of process, the categories are not closed and can encompass a wide variety of potential situations. White Book note 3.4.17 and JSC VTB Bank v Skurikhin [2021] 1 WLR 434 [51] (see further below) indicate that there is no pre-requisite for unlawful conduct, breach of procedural rules, collateral attack on a previous decision, dishonesty or reprehensible conduct (though obviously these would be relevant); rather, the “crucial question is whether, taking a broad merits-based approach, a party is misusing or abusing the process of the court.”

It is important to bear in mind the draconian effect of a debarring order, and its proper purpose. In Arrow Nominees Inc & Anr Respondents v Blackledge and Others Appellants [2000] 2 BCLC 167; [2001] B.C.C. 591 Chadwick LJ cited Millett J’s comments in Logicrose Ltd v Southend United Football Club Ltd (The Times, 5 March 1988) (unreported), where Millett J was considering an application to strike out a plaintiff’s action for having deliberately suppressed a crucial document (including from the court):-

“… I adopt, as a general principle, the observations of Millett J in Logicrose Ltd v Southend United Football Club Ltd (The Times, 5 March 1988) that the object of the rules as to discovery is to secure the fair trial of the action in accordance with the due process of the court; and that, accordingly, a party is not to be deprived of his right to a proper trial as a penalty for disobedience of those rules - even if such disobedience amounts to contempt for or defiance of the court - if that object is ultimately secured, by (for example) the late production of a document which has been withheld. But where a litigant's conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice, the court is entitled - indeed, I would hold bound - to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him.”

An earlier statement to similar effect was made by Denning LJ in Hadkinson v Hadkinson [1952] P 285, 298:-

“…the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues, it impedes the course of justice in the cause, by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.”

An order debarring a party from being heard until they obey outstanding orders became known (at least in the family law context) as a ‘Hadkinson order’. In a later case such, Assoun v Assoun [No 1] [2017] EWCA Civ 21, Sir Ernest Ryder for the Court of Appeal said:-

“Such an order is draconian in its effect because it goes directly to a litigant’s right of access to a court. It is not and should not be a commonplace. As developed in case law, it is a case management order of last resort in substantive proceedings (for example for a financial remedy order) where a litigant is in wilful contempt rather than a species of penalty or remedy in committal proceedings for contempt.” [3]

More recently, Fancourt J said in Byers v Ors v Samba Financial Group [2020] EWHC 853 (Ch):-

“An order striking out a defence and debarring a defendant from defending (or striking out a claim) is the ultimate sanction that the court can impose for a breach of its order that does not amount to a contempt of court. It therefore must be a sanction of last resort and is likely only to be imposed for a serious and deliberate breach. The sanction must be necessary and proportionate in the circumstances.” [120]

Mr Thomas submitted that a debarring order would be appropriate only where the effect of the respondent’s failures meant that the claim or application could not be fairly tried, relying on the statements Hadkinson, Logicrose and Arrow Nominees quoted above. However, it is clear that (a) in assessing fairness, it is necessary to have regard to the proceedings as a whole, including their impact on the applicant, and (b) it is also relevant to consider whether the respondent’s conduct is liable to bring the administration of justice into disrepute. In VTB the Court of Appeal said:-

“47.

In Hunter v Chief Constable of the West Midlands Police [1982] AC 529 HL at 536C, Lord Diplock referred to:

".. the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied…It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power."

…

49.

The fact-sensitive nature of the enquiry was further emphasised in Laing v Taylor Walton [2007] EWCA Civ 1146 , where Buxton LJ at [12], after setting out the passage above from Lord Diplock's speech in Hunter , stated:

"The court therefore has to consider, by intense focus on the facts of the particular case, whether in broad terms the proceedings that it is sought to strike out can be characterised as falling under one or other, or both, of the broad rubrics of unfairness or the bringing of the administration of justice into disrepute."

…

51.

It is clear from the above authorities that, contrary to Berenger's contention, proceedings can be struck down as an abuse of process where there has been no unlawful conduct, no breach of relevant procedural rules, no collateral attack on a previous decision and no dishonesty or other reprehensible conduct. Indeed, the power exists precisely to prevent the court's process being abused through the lawful and literal application of the rules, and most likely would not be needed or engaged where a party was acting unlawfully or in breach of procedural rules, where established rules of law or procedural sanctions would usually suffice to protect the court process. In my view Thevarajah is an example of such protection via the rules, alternatively the recognition of an issue estoppel, rather than a finding that the application in that case was an abuse of process. Recognised aspects of abuse of process include Henderson v Henderson abuse, bringing the administration of justice into disrepute and proceedings which are manifestly unfair to the other party (aspects which may well overlap), but the crucial question is whether, taking a broad merits-based approach, a party is misusing or abusing the process of the court.”

In the context of non-payment of costs orders, the court in Michael Wilson & Partners Ltd v Sinclair [2017] EWHC 2424 (Comm), [2017] 5 Costs L.R. 877 said at [29]:-

“(1)

The imposition of a sanction for non-payment of a costs order involves the exercise of a discretion pursuant to the court’s inherent jurisdiction.

(2)

The court should keep carefully in mind the policy behind the imposition of costs orders made payable within a specified period of time before the end of the litigation, namely, that they serve to discourage irresponsible interlocutory applications or resistance to successful interlocutory applications.

(3)

Consideration must be given to all the relevant circumstances including: (a) the potential applicability of Art.6 of ECHR; (b) the availability of alternative means of enforcing the costs order through the different mechanisms of execution; (c) whether the court making the costs order did so notwithstanding a submission that it was inappropriate to make a costs order payable before the conclusion of the proceedings in question; and where no such submission was made whether it ought to have been made or there is no good reason for it not having been made.

(4)

A submission by the party in default that he lacks the means to pay and that therefore a debarring order would be a denial of justice and/or in breach of Art.6 of ECHR should be supported by detailed, cogent and proper evidence which gives full and frank disclosure of the witness’s financial position including his or her prospects of raising the necessary funds where his or her cash resources are insufficient to meet the liability.

(5)

Where the defaulting party appears to have no or markedly insufficient assets in the jurisdiction and has not adduced proper and sufficient evidence of impecuniosity, the court ought generally to require payment of the costs order as the price for being allowed to continue to contest the proceedings unless there are strong reasons for not so ordering.

(6)

If the court decides that a debarring order should be made, the order ought to be an unless order except where there are strong reasons for imposing an immediate order.”

Siddiqi v Aidiniantz [2020] EWHC 699 (QB) at [30] is to similar effect. Saini J in that case stated that “…a litigant should not be able to continue with his or her claim without satisfying an existing and non-appealed final costs order, and the court should impose a condition requiring compliance” [30(ii)].

When considering debarring for failure to comply with costs orders, it is appropriate to consider the degree of connection between the unpaid costs in question and the claim or application in which the respondent wishes to participate: see Tonstate Group Ltd v Wojakovski [2020] EWHC 1004 (Ch) at [42]-[47]) (Zacaroli J).

The present applications concern attempts to re-open final orders made long ago at a fully contested trial. In that context, the Grand Chamber of the European Court of Human Rights said in Bochan v. Ukraine (No. 2), 5 February 2015 (Grand Chamber) at [44]:-

“In line with the above-mentioned principles, according to long-standing and established case-law, the Convention does not guarantee a right to have a terminated case reopened. Extraordinary appeals seeking the reopening of terminated judicial proceedings do not normally involve the determination of “civil rights and obligations” or of “any criminal charge” and therefore Article 6 is deemed inapplicable to them … This is because, in so far as the matter is covered by the principle of res judicata of a final judgment in national proceedings, it cannot in principle be maintained that a subsequent extraordinary application or appeal seeking revision of that judgment gives rise to an arguable claim as to the existence of a right recognised under national law or that the outcome of the proceedings in which it is decided whether or not to reconsider the same case is decisive for the “determination of ... civil rights or obligations or of any criminal charge” …”

The decision in Bochan recognises potential exceptions to that starting point, including where in substance the ‘extraordinary’ proceedings are similar in nature and scope to ordinary appeal proceedings [47] or (it seems) similar to an appeal on points of law [49]. The Grand Chamber indicated that it is necessary to consider the nature, scope and specific features of the proceedings in question [50].

As to the position once a debarring order has been made, it was stated in Financial Conduct Authority v London Property Investments [2022] EWHC 1041 (Ch) at [38]-[39] that:-

“Where a debarring order does have the effect of preventing a defendant from participating in a trial, the position does not then go by default. At the trial the claimant must still demonstrate to the satisfaction of the court that the claimant is entitled to the relief sought in the relevant proceedings.” ([39(v)] quoting Times Travel v Pakistan International Airline Group [2019] EWHC 3732 (Ch))