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

Fecha: 13-Nov-2025

What is the appropriate and proportionate response of the Court to the claimants’ abuse of its process?

(4)

What is the appropriate and proportionate response of the Court to the claimants’ abuse of its process?

75.

In some ways this is the most difficult aspect to decide. It involves the exercise of a broad discretion in furtherance of the interests of justice and the overriding objective. It is common ground, as reflected in my formulation of this issue, that the Court’s response should be appropriate and proportionate.

76.

The Astor Defendants have submitted forcefully that the only response that achieves these outcomes in the present case is to strike out or stay the claim in full. They say there is no lesser remedy (or sanction) available here. They point to cases where strike out is the usual or perhaps default solution for certain kinds of procedural abuse: see paragraph 53 above. They cite comparative case law where a claim or defence has been struck out for similar forms of abusive behaviour such as hacking or intruding.

77.

There have been moments when I have felt that I ought to accede to this primary position. This reflects the gravity and culpability of the claimants’ behaviour, which I have characterised as an affront to justice and inimical to the fundamental norms and values of civil litigation in this jurisdiction.

78.

I have nevertheless decided against striking out (or staying) this claim in all the circumstances:

(i)

The Court’s response must fit the abuse which has so far been established. As explained in Issue (1) above, that abuse is found in the unethical behaviour involved rather than the nature or quality of the illicit information - see Issue (2) - or the impact of illicit knowledge upon the claimants’ litigation conscience or consequent prospects of a fair trial: see Issue (3). Those are matters to be determined at a further hearing and may yet attract additional responses from the Court.

(ii)

Striking out (or staying) the entire claim would be disproportionate at this juncture in circumstances where there is a decent prospect of the claimants succeeding on their deceit claim at trial. There is a distinct policy in favour of exposing and remedying serious wrongdoing such as fraud: see paragraph 55 above.

(iii)

Come what may, the Astor Defendants’ own cross-applications necessitate a further hearing to deal with Issue (2)and Issue (3). My own review of material and initial analysis suggests that there are arguments either way on privilege and iniquity.

(iv)

I cannot ignore the independent responsibility and culpability of X. He revealed far more than a solicitor in his position needed to or should have done when seeking to impress the representative of a potential major new client. This in no way absolves the claimants for their own unethical and inimical behaviour. It does nevertheless feed into the balancing exercise at this stage of the analysis.

(v)

I am satisfied that there is a more proportionate response to the claimants’ abuse of process, namely forfeiture of their summary judgment application and payment of costs: see Issue (5) below.

79.

In all the circumstances, I do not consider it appropriate and proportionate to strike out (or stay) the claim in its entirety at this stage. The fate of these proceedings awaits the outcome of the Information Review Hearing.