CL-2024-000450 - [2025] EWHC 2968 (Comm)

As regards summary judgment, the applicable test is well-known both in form and practice. The Court has a discretion whether or not to enter summary judgment (CPR 24.3) or make a conditional order (CPR 24.6). That discretion can be exercised against a claimant even if satisfied that (a) there is no real prospect of a claim or issue being defeated at trial and (b) there is no other compelling reason for a trial. Such discretion falls to be exercised in the interests of justice and in furtherance of the overriding objective of the CPR.

Abuse of process concerns protection of the integrity and authority of the adjudicative function performed by the Court. This forms part of an inherent self-regulatory jurisdiction. It allows steps to be taken, including at the Court’s own motion or initiative, to remedy or prevent abnormal use of its function by or on behalf of a litigant.

The categories of abuse are not closed. No attempt should be made to define or delineate what can or cannot be an abuse in any given circumstances: see commentary and authorities cited in 2025 White Book at 3.4.3 to 3.4.17.

The Court is ordinarily concerned with an objective inquiry as to the quality of conduct, rather than examining a subjective state of mind. However, abuse sometimes involves pursuit of a claim or issue in bad faith or for a collateral purpose which in turn involves an inquiry into knowledge or intention. The civil standard of proof is applied in all cases, i.e. balance of probabilities.

Although founded in the inherent jurisdiction, the express power to strike out for abuse of process is contained in CPR 3.4(2)(b). That provision has two limbs: “the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings” (my emphasis).

The rule focuses on a “statement of case” but it has been interpreted more broadly to include abusive behaviour (i) which occurs other than in or through a statement of case and (ii) which may justify striking out a claim or defence with terminal effect for the relevant litigant. This codified power does not cut down the scope of the Court’s potential response to an abuse of process, as addressed further below.

The words given emphasis above show that the two limbs are disjunctive. The second limb can operate where there is no actual/accrued or anticipatory/future abuse of process. It protects the integrity of the adjudicative function in a different way, i.e. by reference to the ability to conduct a fair trial consistent with common law notions of natural justice and the participants’ rights conferred by Article 6 ECHR. I was asked to proceed on the basis that this second limb is intended to reflect that broader position, whilst not itself cutting down the scope of the Court’s inherent jurisdiction or indeed primary responsibility to administer justice in accordance with the overriding objective.

That said, it is possible for the second limb to involve or arise out of behaviour characterised as an abuse of process. In this sense there are two broad categories or species of abuse of process: one which is concerned solely with the quality of behaviour and another which is concerned with the impact of that behaviour on the future course of a case and the integrity of its determination: see Raja v. van Hoogstraten [2006] EWHC 1315 (Ch) at [31]-[32] (defendant’s complicity in the murder of the claimant).

Some types of behaviour - e.g. forgery or falsification of documents, deliberate suppression or destruction of documents, perjury, hacking or intrusion, witness tampering or intimidation - can be characterised as abusive because they create a substantial risk of an unfair trial: see e.g. Arrow Nominees Inc. & another v. Blackledge & others [2001] BCC 591 at [54], [56]. This does not mean that the relevant behaviour itself is not abusive. It depends on the circumstances.

The distinction between the two limbs of CPR 3.4(2)(b), and a related distinction between what I would call actual abuse and anticipatory abuse, has some importance in the present case. That is because the impact of abusive behaviour may be such as to confer an illegitimate advantage upon one litigant (e.g. acquiring knowledge derived only from privileged communications) that is invidious and jeopardises a fair trial. That is a problem in itself. It is distinct from the abusive behaviour by which such state of affairs comes about in the first place.

It is possible for abuse of process to occur through steps taken outside the litigation - what was referred to during this hearing as ‘non-White Book’ behaviour - and perhaps outside the territorial jurisdiction altogether. Such extra-procedural behaviour can be contrary to the basic norms or values of civil litigation whether or not it has the effect of circumventing or frustrating the purpose of any specific provision of the rule book itself. The CPR does not expressly prohibit types of misconduct. Some behaviour is anathema to how civil litigation works and amounts in effect to cheating the system. This is still abuse of process, even though the abuse is not procedural in a formal sense.

Turning the focus onto privilege in this context:

The iniquity principle depends on whether a lawyer/client relationship is being abused, something which may necessitate a “document by document” analysis: see Al Sadeq v. Dechert LLP & others [2024] EWCA Civ 28; [2024] KB 1038 at [168]. It is agreed before me that this would require a ‘topic by topic’ analysis of the meeting transcripts, if not a ‘line by line’ or ‘answer by answer’ review, conducted in the context of the transcripts as a whole. I return to the nature of this task in my analysis below.

Some behaviour is by its nature offensive to justice. It risks bringing the administration of justice into disrepute - but only if it is not marked with an appropriate and proportionate response from the Court. Public confidence in the administration of justice is protected by the Court’s response to such abuse: see Masood & others v. Zahoor & others (Practice Note) [2009] EWCA Civ 650; [2010] 1 WLR 746 at [71].

Whilst there is a power to strike out a claim in whole or in part on the basis that its continuation would involve or comprise an abuse of process, the Court’s response in each case depends on all the circumstances and should be both appropriate and proportionate. I prefer the word ‘response’ in this context to either ‘remedy’ or ‘sanction’. This avoids an unnecessary debate as to the distinction between punitive and deterrent elements. The Supreme Court has stated that the power to strike out “is not a power to punish but to protect the court’s process”: see Summers v. Fairclough Homes Ltd. [2012] UKSC 26; [2012] 1 WLR 2004 at [45].

Even if not containing a penal element, the Court’s response may involve a deterrent factor to help ensure compliance by others in future. This is commonplace in civil procedure whether or not a judicial response is described as a ‘remedy’ or ‘sanction’. One obvious example is where a party is found to have breached its duties as regards full and frank disclosure or fair presentation at a hearing conducted on a without notice basis. An appropriate and proportionate judicial response may be to refuse renewal or re-grant of an injunction which has been set aside. This does not depend on showing an abuse of process or unclean hands as a matter of equity.

Striking out a claim is a Draconian measure. It has been referred to as the response of last resort. Such comments need contextualising. In some instances, it is the very fact that a claim lies on the court file when it should not that justifies it being struck out. Examples include so-called Grovit abuse (where a claim is left stagnant at the choice of the claimant) or where a claim is started by the wrong party or without a genuine basis in an attempt to circumvent the expiry of a limitation period (e.g. Pickthall v. Hill Dickinson LLP [2009] EWCA 534; [2009] PNLR 31) or where a claim (or issue within it) involves abusive re-litigation or so-called Henderson abuse. Striking out meets the particular vice in these sorts of cases. They involve an abuse within the system, so to speak.

The position is different when dealing with extra-procedural abuse of the kind alleged in the present case and discussed above. Leaving aside situations where the impact of the abuse is to jeopardise a fair trial, the question of what constitutes an appropriate and proportionate response to such abuse is more open-textured, in my judgment. Those cases in which certain types of procedural abuse justify strike out as the natural response do not qualify the general proposition that striking out is a response of last resort. The search is always for the appropriate and proportionate way of dealing with an abuse.

One factor in the Court’s choice of response to a claimant’s abuse of process is the desirability of ensuring that a defendant guilty of serious wrongdoing (such as fraud) is held accountable according to the standards and procedures of our civil litigation system. A defendant who is the victim of an abuse of process is not necessarily let off the hook to enjoy the benefit of his own misdeeds. The Court must weigh procedural responsibility against substantive accountability to some extent: see RAKIA v. Azima [2021] EWCA Civ 349; [2021] 1 CLC 715 at [40]-[65] - in particular [62] & [63] (a post-trial situation where the defendant had been found liable in fraud).

Finally, I should note that neither side suggested the Court could not of its own motion strike out the claimants’ summary judgment application or exercise its undoubted discretion to refuse summary judgment as a response to the claimants’ abuse of process, if established.