Background
BlackBerry sued Indian handset supplier Optiemus in the Commercial Court in August 2019 for sums allegedly due under a software and services agreement containing an English jurisdiction clause. The claim was served in India in December 2019 under the Hague Service Convention, but Optiemus neither acknowledged service nor filed a defence. After indicating in March 2020 that it would seek summary judgment, BlackBerry took no steps to advance the proceedings for approximately four years.
The proceedings were automatically stayed under CPR 15.11 in July 2020. In July 2024, BlackBerry applied to lift the stay and sought summary judgment. Optiemus applied to strike out the claim as an abuse of process. The High Court found that BlackBerry’s deliberate and unjustified decision to leave the claim dormant from about September 2020 until July 2024 was abusive, but declined to strike it out. It instead lifted the stay subject to conditions concerning interest and costs. Optiemus appealed.
The Court’s Holding
The Court of Appeal unanimously dismissed the appeal. It endorsed the High Court’s two-stage approach: the court must first decide whether the claimant’s conduct constitutes an abuse of process and, if it does, separately determine the proportionate response in light of all the circumstances and the overriding objective.
A finding of this form of abuse does not create a presumptive rule that the claim must be struck out unless the claimant demonstrates “compelling reasons” to the contrary. Strike-out will frequently be appropriate, but it is not automatic. The court must consider matters including the seriousness and duration of the abuse, prejudice, the administration of justice, deterrence, the parties’ conduct, and whether lesser measures can address the harm.
The first-instance judge had applied the correct test and was entitled to find strike-out disproportionate. Although BlackBerry’s nearly four-year inaction was abusive, the delay had caused no identified specific prejudice to Optiemus apart from interest, which could be addressed by conditions; the dispute remained capable of a fair trial and was substantially documentary; and strike-out would prevent BlackBerry from pursuing arguable claims exceeding US$6 million. The Court of Appeal also upheld the lifting of the automatic stay.
Key Takeaways
- A claimant may abuse the court’s process by deliberately placing proceedings on hold when its reasons, assessed objectively against the length of the delay, are insufficient.
- Once abuse is established, strike-out is a discretionary and proportionate remedy—not a default outcome displaced only by “compelling reasons.”
- The court may consider all relevant circumstances, including prejudice, the seriousness of the abuse, both parties’ conduct, effects on the administration of justice, and conditions concerning interest or costs.
Why It Matters
The decision clarifies the English courts’ approach to claims deliberately left dormant. It confirms that abuse and sanction are distinct questions and rejects a special presumptive strike-out rule for prolonged “warehousing” or Grovit abuse.
The judgment does not excuse litigation delay: parties must pursue proceedings efficiently and should seek consent, a stay, or directions rather than unilaterally putting a case on hold. But even serious delay must be met with a remedy proportionate to its actual circumstances and effects.