Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
HHJ EMMA KELLY
sitting as a Judge of the High Court
Between :
SNV & 329 others | Claimants |
- and – | |
(1) Mr Moutaz Al Khayyat (2) Mr Ramez Al Khayyat (3) Doha Bank Q.P.S.C. | Defendants |
Mr Edward Norton (solicitor advocate instructed by Richard Slade & Co) for the Claimant
Ms Hannah Brown KC and Mr Sandy Phipps (instructed by Eversheds Sutherland (International) LLP) for the Third Defendant
Hearing date: 17 October 2025
APPROVED JUDGMENT
This judgment was handed down remotely at 11.30am on 18 December 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
HHJ Emma Kelly:
This judgment concerns the Third Defendant’s application, dated 16 June 2025, to strike out the claim in its entirety (“the Application”). The Application is supported by evidence set out in section 10 of the application notice and an accompanying bundle of documents. The Claimants oppose the Application but have not filed any evidence in response.
I am grateful to the advocates for the Claimants and Third Defendant for their skeleton arguments, and the helpful bundle of authorities provided by the Third Defendant. The First and Second Defendants have not been served with the claim and thus have taken no part in the proceedings.
Background
The factual background is not in dispute. Mr Norton’s skeleton argument agrees the factual background summarised in paragraphs 4 – 21 of the Third Defendant’s skeleton argument. In order to understand the context within which the Application is made, it is however necessary for this judgment to set out the history of this litigation in some detail.
By application dated 26 May 2020, the Claimants’ solicitor, Richard Slade and Company Limited (“RSC”), sought permission to issue proceedings against the Defendants without including the Claimants’ names and addresses on the claim form, and various other relief. That application was supported by the witness statement of the Claimants’ solicitor, Mr Richard Slade, dated 26 May 2020 (“Slade 1”). By order dated 1 June 2020, Master Davison (“the Davison Order”) granted the Claimants’ application.
On 17 June 2020, the Claimants (duly anonymised in accordance with the Davison Order) issued the claim form in the index claim. The brief details of claim included the following allegations:
The Claimants are Syrian citizens who have suffered substantial loss and damage, including severe personal injuries, destruction of property, loss of profits and forcible displacement from their homes in Syria as a result of the unlawful actions of al-Nusra Front (“ANF”), a designated jihadist terrorist group.
The First and Second Defendants are prominent Syrian/Qatari businessmen who financed and/or assisted in financing the ANF though accounts held by them and/or by entities associated with them at the Third Defendant.
The Third Defendant is a Qatar-based international bank who facilitated payments to and/or the financing of the ANF.
The First and Second Defendants are not domiciled in England and Wales. The claim form gives the same address for each; an address in Doha, Qatar albeit it is unclear whether such address is their last known residence or commercial premises. By paragraph 7 of the Davison Order, the time for service of the claim form and particulars of claim on the First and Second Defendant was extended to 28 days after the determination of a jurisdiction challenge in claim number QB-2019-002712 (“the BB Proceedings”).
On around 17 June 2020, the claim form was served on the Third Defendant at its representative office in London. By paragraph 8 of the Davison Order, the time for service of the particulars of claim on the Third Defendant was also extended to 28 days after the determination of a jurisdiction challenge in the BB Proceedings. No particulars of claim have been served on the Third Defendant to date.
The BB Proceedings
The BB Proceedings, issued on 30 July 2019, are claims brought by BB and 7 other claimants against the First, Second and Third Defendants. At the time of issue, RSC also acted for the claimants in the BB Proceedings. At paragraph 42 of Slade 1, Mr Slade described the BB Proceedings and the index claim as “materially identical”.
As with the index claim, the BB Proceedings were only ever served on the Third Defendant. By application dated 24 December 2019, the Third Defendant challenged the jurisdiction of the English court (“the Jurisdiction Application”). Prior to the Jurisdiction Application being determined, the claimants in the BB Proceedings variously discontinued or had their claims struck out.
By order dated 16 November 2023, Soole J gave the fourth to seventh claimants permission to discontinue their claims.
By order dated 1 July 2024, Soole J struck out the claim form and re-amended particulars of claim as an abuse of process, and the claims brought by the first, second, third and eighth claimants were accordingly dismissed.
Various arguments as to the costs of the BB Proceedings followed. By order dated 28 February 2025, Soole J ordered the claimants, to varying degrees, to pay the Third Defendant’s costs of the BB Proceedings.
The substance of the BB Proceedings has concluded. The only remaining live matters are (a) an appeal by the fourth to seventh claimants against Soole J’s costs order, which is listed for February 2026, and (b) the Third Defendant’s application for wasted costs against the claimants’ solicitor (which by then had changed from RSC to McCue Jury & Partners LLP).
Communications in the index claim
At paragraph 97 of Slade 1, Mr Slade had foreseen that the Third Defendant would likely also challenge jurisdiction in the index claim and that the outcome of the Jurisdiction Application was “likely to be determinative of the Court’s jurisdiction over [the Third Defendant] in the [index claim]”. It was for that reason that the Claimants sought, and obtained, the Davison Order to extend the time for service of the claim form on the First and Second Defendants, and the particulars of claim on all Defendants, until after the Jurisdiction Application was determined.
Once Soole J had struck out the remaining claims in the BB Proceedings on 1 July 2024, the Jurisdiction Application was rendered otiose and did not require determination. However, that caused an issue in the index claim as the date for service of the claim form and particulars of claim under the Davison Order was timetabled to 28 days after the determination of the Jurisdiction Application. The Third Defendant’s solicitor (“Eversheds”) was alive to this issue and, in late July 2024, commenced what became a protracted chain of correspondence aimed at prompting the Claimants in the index claim into action.
On 29 July 2024, Eversheds wrote to RSC to provide an update on the BB Proceedings and invited the Claimants to discontinue, or, insofar as they intended to pursue the claim, to immediately seek appropriate directions, including as to the service of particulars of claim.
On 29 July 2024, Mr Slade of RSC replied stating he was on holiday but would “look at this when I get back next week”.
On 9 August 2024, Mr Slade sent a further email to Eversheds stating:
“…I’ve rather lost touch with developments on this case – the action for which I’m responsible has been stayed and I haven’t kept abreast of developments in the “lead” action…it would be ambitious to think that I could get back to you in a week…could we agree that you leave your proposal on the table and that I get back to you within a month from Monday (i.e. by 12 September)…”
On 13 August 2024, Eversheds asked for a response by 30 August 2024.
On 2 September 2024, Eversheds chased a response to their letter of 29 July 2024. Mr Slade replied the same day indicating he would do his best to stick to 12 September 2024.
On 6 September 2024, Mr Slade emailed Eversheds stating:
“I have taken some preliminary instructions. I understand that there is a hearing scheduled in the lead case in November. On that basis, I will become more involved between now and then, acquaint myself with the landscape (with which, as I have mentioned) I have entirely lost touch and take a position on your proposal in light of that hearing…”
By letter dated 10 September 2024, Eversheds sought a substantive response to their letter of 29 July 2024, noting that RSC had not explained, and they did not understand, why the outstanding costs in the BB Proceedings impacted on the resolution of the index claim.
RSC did not respond to Evershed’s letter of 10 September, and nearly 6 months passed without any communications between the parties.
On 7 March 2025, Eversheds wrote again to RSC pointing out that they had still not received a substantive response to their letter of 29 July 2024, and providing a further update as to costs orders made in the BB Proceedings. They sought a substantive response by close of business on 14 March 2025.
On 17 March 2025, Eversheds chased a response and asked RSC to acknowledge receipt of their letter of 7 March 2025, and to confirm the date by which RSC would provide a substantive response. By email dated 17 March 2025, Mr Slade acknowledged receipt and apologised for not having replied. He continued:
“… It’s been pretty frantic for the last two weeks and I’ll need to read back into this after such a long period. I will get back to you by Wednesday of next week.”
On 27 March 2025, 2 April 2025, and 3 April 2025, Eversheds chased RSC for a response. No reply was received.
On 25 April 2025, Eversheds sent a further letter to RSC stating that, absent a substantive response by close of business on 2 May 2025, they would seek client instructions on making an application to strike out the claim.
No response was received from RSC. On 16 June 2025, Eversheds issued the Application.
On 19 June 2025, Mr Slade emailed Eversheds stating that the Application would be opposed and needed to be listed for a hearing. Although Mr Slade used the same email address as previously, the footer to his email indicated that the corporate structure of RSC had changed to Richard Slade & Partners LLP (“RSP”). At all times thereafter, Mr Slade continued to be the author of all correspondence sent on behalf of the Claimants.
On 20 June 2025, Eversheds wrote to RSP and noted the Claimants’ unexplained failure to progress the proceedings or even to respond to correspondence. Eversheds asked RSP to respond by 27 June 2025 with details as to the Claimants’ grounds for opposing the Application, their intentions as to progressing the proceedings, whether they planned to serve evidence in response to the Application and, if so, when; and as to various issues as to security for costs.
On 25 June 2025, Mr Slade emailed Eversheds stating he would respond to their letter, but not until the following week.
On 3 July 2025, Eversheds chased a response to their letter of 20 June 2025. Mr Slade emailed back the same day apologising for “the radio silence” and saying he would “reply substantively to your letter just as soon as I can”.
On 9 July 2025, 21 July 2025, 7 August 2025 and 5 September 2025, Eversheds chased for a substantive reply to their letter of 20 June 2025.
On 12 September 2025, Eversheds issued an application for directions to require the Claimants to serve any evidence in the response to the Application by 4pm on 19 September 2025.
On 30 September 2025, Eversheds provided RSP with a draft hearing bundle index. They again chased a substantive response to their letter of 20 June 2025.
On 10 October 2025, the court sent the parties an email stating that the Master to whom the application for directions had been referred had agreed that the late filing and service of evidence would disrupt the hearing on 17 October 2025, and asked that the Claimants confirm what their intention was in that regard. Mr Slade responded by email the same day saying he would provide a response over the weekend.
On 12 October 2025, Mr Slade sent a two-page email to Eversheds and the court. The email indicated that the Claimants did not intend to file any evidence in response to the Application and went on to make various representations as to the Claimants’ position. The following extracts are relevant:
“…In November 2020, I was replaced as the claimants’ solicitor in the [BB] Proceedings by another firm, McCue & Partners and have played no part in this litigation for the last 5 years. I remained the claimants’ solicitor in these proceedings, which were stayed. I did not closely follow the course of the [BB] Proceedings even from the outside. I was not kept informed of developments by McCue & Partners. On the basis of recent researches, I accept that the account given in the application notice is accurate to the point at which it was written. Since then, permission has been given to appeal the costs order. I do not know what has become of the application for wasted costs against McCue & Partners.
… I can see, of course, that the time has come when these proceedings must be moved on. I have been waiting to resolve issues of funding, which are, understandably, bound up with the outcome of the appeal. I accept, however, that the Court will expect certain decisions to be taken now or soon. The Particulars of Claim in these proceedings will be identical to the Particulars of Claim in the [BB] Proceedings, save for a schedule which provides particulars of the nature of each claimant’s case…
However, before I can serve the particulars of claim, I shall need to produce a replacement schedule, providing some particulars of each claimant’s claim. Given (a) that there are more than 300 claimants, some of them children litigating by litigation friends, (b) that there is a major language barrier and (c) there are issues of funding, I will ask the Court on Friday for 3 months in which to complete those tasks and serve the Particulars of Claim. I would ask that, initially, this NOT be on unless terms…”
By email dated 13 October 2025, Eversheds indicated that the Third Defendant was not prepared to agree to the Claimants’ proposal that a further three months be allowed for the service of Particulars of Claim.
The Third Defendant’s application of 12 September 2025 was not determined prior to the hearing of the Application on 17 October 2025.
Legal Framework
By CPR 3.4(2):
“The court may strike out a statement of case if it appears to the court – …
(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings;”
The concept of abuse of process in the context of the power the Court has to control against misuse of its procedures was reviewed recently by the Supreme Court in Mueen-Uddin v Secretary of State for Home Department [2025] AC 945. Lord Reed held at [36]-[39]:
“36. As Lord Bingham of Cornhill stated in Johnson v Gore Wood & Co [2002] 2 AC 1, 22 :
"The rule of law depends upon the existence and availability of courts and tribunals to which citizens may resort for the determination of differences between them which they cannot otherwise resolve. Litigants are not without scrupulous examination of all the circumstances to be denied the right to bring a genuine subject of litigation before the court".
As that dictum indicates, individuals have a fundamental right of access to the courts for the determination of their civil rights. That right has been recognised by the common law for many centuries, and has been protected by statute from Magna Carta (parts of which remain on the statute book, in the version issued in 1297) to the Human Rights Act 1998 ("the Human Rights Act").
37. However, it is not an unqualified right. As Lord Bingham went on to make clear, it does not mean that the court must hear in full and rule on the merits of any claim or defence which a party to litigation may put forward. For there is, as Lord Diplock stated in Hunter [1982] AC 529, 536 , in a speech with which the other members of the House of Lords agreed, an
"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."
38. That dictum is not to be treated as if it were a statutory definition. Nevertheless, Lord Diplock described the nature of the court's power with characteristic clarity, and in terms which have stood the test of time over the past half century, both in this jurisdiction and overseas (see, for example, Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 and City of Toronto v Canadian Union of Public Employees [2003] 3 SCR 77). Neither party to these proceedings has argued that this court should depart from Lord Diplock's statement of principle or attempt to improve upon it.
39. Two aspects of Lord Diplock's statement should be noted. First, the power in question is a power to prevent misuse of the court's procedure. It follows that the power cannot be exercised if the claimant is making proper use of the civil jurisdiction of the court to protect his rights. Secondly, the court's procedure must be being misused in a way which would be "manifestly unfair" to one or more of the parties or would otherwise "bring the administration of justice into disrepute among right-thinking people". The primary purpose of the doctrine, in other words, is to preserve public confidence in the administration of justice.”
The species of abuse of process relied upon by the Third Defendant is that established by the decision of the House of Lords in Grovit v Doctor [1997] 1 WLR 640 (“Grovit”) arising where a party commences litigation but has no intention to continue the claim to a conclusion. In Grovit the Court concluded that a plaintiff’s inactivity in a libel action for over two years amounted to an abuse of process. Lord Woolf described the Court’s approach at 647G – 648A in the following terms:
“… The courts exist to enable parties to have their disputes resolved. To commence and to continue litigation which you have no intention to bring to conclusion can amount to an abuse of process. Where this is the situation the party against whom the proceedings is brought is entitled to apply to have the action struck out and if justice so requires (which will frequently be the case) the courts will dismiss the action. The evidence which was relied upon to establish the abuse of process may be the plaintiff's inactivity. The same evidence will then no doubt be capable of supporting an application to dismiss for want of prosecution. However, if there is an abuse of process, it is not strictly necessary to establish want of prosecution under either of the limbs identified by Lord Diplock in Birkett v. James [1978] A.C. 297 . In this case once the conclusion was reached that the reason for the delay was one which involved abusing the process of the court in maintaining proceedings when there was no intention of carrying the case to trial the court was entitled to dismiss the proceedings.”
Abuse of process arising through a failure to pursue a claim can extend to the claimant who commences a claim with every intention to pursue it to trial but who later sits back and fails to progress it; a practice referred to colloquially as ‘warehousing’. In Asturion Fondation v Alibrahm [2020] 1 WLR 1627 (“Asturion”) Arnold LJ at [49] described the necessary lack of intention to bring to a conclusion (per Lord Woolf in Grovit at 647G) in the following way:
“…the words "which you have no intention to bring to a conclusion" could embrace both (i) cases in which the claimant has no intention of ever bringing the claim to a conclusion and (ii) cases in which the claimant has no intention of bringing to a conclusion at present, but intends to do so in future, perhaps depending upon some contingency.”
Arnold LJ went on to consider the approach to be taken when determining whether a unilateral decision by a claimant not to progress a claim amounts to an abuse of process:
“[61] … a unilateral decision by a claimant not to pursue its claim for a substantial period of time, while maintaining an intention to pursue it at a later juncture, may well constitute an abuse of process, but does not necessarily do so. It depends on the reason why the claimant decided to put the proceedings on hold, and on the strength of that reason, objectively considered, having regard to the length of the period in question. A claimant who wishes to obtain a stay of proceedings for a period of time should seek the defendant's consent or, failing that, apply to the court; but it is not the law that a failure to obtain the consent of the other party or the approval of the court to putting the claim on hold automatically renders the claimant's conduct abusive no matter how good its reason may be or the length of the delay…”
At [64] of Asturion Arnold LJ concluded a two stage approach was appropriate. This requires the court to consider:
Does the claimant’s conduct amount to an abuse of process?
If so, should the court exercise its discretion to strike out the claim?
There are a number of post-Asturion examples of the courts applying the aforementioned two stage test. These include Alfozan v Quastel Midgen LLP [2022] EWHC 66 (Comm) (“Alfozan”), where HHJ Pearce, sitting as a Judge of the High Court, struck out a claim as an abuse of process. In concluding that the claimant was guilty of warehousing a claim with no intention to pursue it, HHJ Pearce at [49] stated:
“ 49. … It is now more than 3 years since the claim was issued and the Second Defendant is still not in receipt of Particulars of Claim which adequately set out the case against it. The Claimant has not taken the opportunity to explain why the claim had been progressed in such a dilatory fashion and, without some explanation, the natural inference is that there is no good explanation at all.”
In Morgan Sindall Construction and Infrastructure Limited v Capita Property and Infrastructures (Structures) Limited & another [2023] EWHC 166 (TCC) (“Morgan Sindall”) Eyre J approached the first stage of the test in the following way:
“[32] In deciding whether there was abuse the court will need to consider whether the circumstances and in particular the relevant delay amounted to a deliberate putting of the proceedings on hold. Doing that requires an analysis of the intention underlying the delay and the failure to progress to the action and the court will then have to consider in light of its conclusion as to the intention whether there was abuse. The relevant intention is subjective. A party who is delaying proceedings or who is inactive through incompetence or the like will not be guilty of this form of abuse. Such a party may well be liable to have its claim struck out but that would be on a different basis.
…
[35] The court must be on guard against making undue assumptions. It is necessary for the court to remember that what might appear, with hindsight, to be a deliberate course of conduct can be, and often will be, the result of a combination of unrelated decisions or omissions with a different intent or with no combined intent at all.
[36] The dividing line between putting proceedings on hold in such a way as to be warehousing them and failing to progress a claim with proper expedition will often be a narrow one but there is a distinction and the distinction lies in the intention with which the actions are done.”
In Lloyd v Hayward [2024] EWHC 2033 (Ch) (“Lloyd v Hayward”) HHJ Keyser KC, sitting as a judge of the High Court, at [57] interpreted the approach to stage 1 of the Asturion test in the following way:
“57. I take a number of points from Asturion. First, to commence and to continue litigation which one has no intention to bring to conclusion can amount to an abuse of process, but it does not necessarily amount to an abuse of process—even where the claimant has no intention of ever bringing the case to a conclusion, and a fortiori where the claimant merely intends not to bring it to a conclusion at present but to do so in the future (maybe even only in the event of a contingency). Second, it is likely to be an abuse of process for the claimant unilaterally to decide not to pursue a claim for a substantial period of time, even if the claimant remains intent on pursuing the claim at some future point. (I think that it must follow a fortiori that it is very likely to be an abuse of process for a claimant to decide not to pursue a claim for a substantial period of time if the claimant has no intention of ever pursuing the claim. Indeed, it is hard to imagine such circumstances that would not amount to an abuse of process.) Third, whether it is an abuse of process to "warehouse" a case for a significant period of time but with a conditional or contingent intention to pursue it at a later juncture depends on the reason why the claimant decided to put the proceedings on hold and on the strength of that reason, objectively considered, having regard to the length of the period in question. Fourth, even in cases of the first kind of abuse (no intention of ever bringing the case to a conclusion), an order striking out the claim is not automatic, though it is likely; a fortiori it is not automatic in cases of the second kind of abuse (a conditional or contingent intention to pursue the claim at some future time)…”
The second stage of the Asturion test involves an exercise of discretion. The Third Defendant has identified what it describes as a conflict of first instance authority as to whether the approach to the exercise of discretion described by the Court of Appeal in Board of Governors of the National Heart and Chest Hospital v Chettle [1998] 30 HLR 618 at 628 (“Chest Hospital”) remains good law. Chest Hospital was decided prior to the implementation of the Civil Procedure Rules and was not cited in Asturion. At 628 Aldous LJ held:
“…Once the action came to amount to an abuse of the process of the Court, it required to be struck out unless compelling reasons to the contrary could be demonstrated…” [My emphasis added.]
In Watford Control Instruments Limited v Brown [2024] EWHC 1125 (Ch) (“Watford Control”) at [47] Richards J held that Chest Hospital “compelling reasons” were needed to prevent a claim being struck out once Grovit type of abuse of process had occurred. In his reasoning at [44] – [46] Richards J concluded that the CPR had not thrown overboard the judgment in Chest Hospital, nor had it resulted in a step-change in relation to the court’s attitude to strike out in cases of abuse of process.
In the subsequent case of Lloyd v Hayward, HHJ Keyser KC at [66] disagreed with Richards J’s conclusion and reasoning in Watford Control as to whether Chest Hospital “compelling reasons” were required. He concluded at [67] that the proper approach was to apply “the exercise of discretion in accordance with the overriding objective and make such order as is just and proportionate on the facts of the particular case”.
The parties’ positions
The Third Defendant’s position is that the Claimants’ conduct amounts to a clear case of Grovit abuse. Ms Brown KC highlighted that the Claimants’ only act in the over 5 years since the claim was issued has been to serve the claim form on the Third Defendant. She submitted, inter alia,
The Claimants were wholly inactive during the period from June 2020 (issue of the claim) to July 2024 (when the last of the substantive claims in the BB Proceedings concluded). They were insufficiently interested to maintain an overview of the BB Proceedings. Mr Slade admitted in emails in August 2024 and again in October 2025 that he had “lost touch” with what was happening in the BB Proceedings.
In any event, since July 2024 the Claimants have known that the Jurisdiction Challenge in the BB Proceedings would never be determined and that there was thus no longer any basis for the Davison Order extending the date for service of the Particulars of Claim. The Claimants nonetheless still took no steps to progress the claim, whether by serving particulars of claim or otherwise.
The Claimants failure to engage with the proceedings has occurred notwithstanding the Third Defendant’s proactive actions since July 2024 in communicating with the Claimants. The Claimants, through their solicitor, have not even seen fit to respond to many of Eversheds’ communications.
The Claimants have failed to file any evidence in response to the Application and have thus put forward no evidence to explain the reason(s) for their inactivity.
Mr Slade’s belated response in his email of 12 October 2025 is not evidence that the Claimants had, or now have, any genuine intention to progress their claims. It is telling that the email was only sent in response to a request from the court that the Claimants clarify their position. It does not address why no action was taken by the Claimants when the BB Proceedings were taken in a direction with which Mr Slade disagreed or, in any event, when the last of the substantive claims in the BB Proceedings concluded in July 2024. The email provides no explanation as to what is meant by “waiting to resolve issues of funding” or why that may be bound up in the outcome of the appeal in the BB Proceedings. The lack of material connection to the appeal is in any event exposed by the Claimants’ request for three months from 17 October 2025 to file their Particulars of Claim in circumstances where the appeal is not even listed until February 2026.
Mr Slade fails to explain why the Claimants have not made any relevant decisions in the 15 months since the BB Proceedings came to a substantive end and in the 4 months since the Application was issued.
The only proper inference that can be drawn is that the Claimants and/or those funding them no longer intend to pursue the claim, and that amounts to an abuse of process.
Ms Brown KC further submitted that when once the finding of abuse of process is reached, the only appropriate order in this case is strike out. She submitted that:
It is unlikely any lesser sanction would galvanise the Claimants into action as they have ceased substantively engaging. Even the issuing of the Application in June 2025 had no real effect.
Moribund proceedings should not be kept on foot.
The court has no reason to be reassured that any delay is in the past. The Claimants seem to suggest that the Particulars of Claim could be cut and pasted from the BB Proceedings in circumstances where a key witness has withdrawn their evidence. Moreover, it appears that no steps have been taken since issue to prepare the schedule of case details for the 300 plus Claimants.
It is unnecessary to determine the apparent conflict in Watford Control and Lloyds v Hayward as to whether the “compelling reasons” principle in Chest Hospital remains binding as both approaches lead to the same result on the facts of this case. The Third Defendant considers that Richards J was correct to apply Chest Hospital noting that (a) Grovit abuse is a doctrine of the common law and pre-CPR statements of principle remain relevant and binding and (b) moreover, Chest Hospital is correct in principle. However, even if the Court applies HHJ Keyser KC’s approach in Lloyds v Hayward by reference to the overriding objective, one reaches the same conclusion that strike out is appropriate.
The Claimants do not accept that their claim should be struck out. Mr Norton submitted that the court should instead direct the Claimants to file and serve Particulars of Claim, on unless terms if thought appropriate, within 3 months of the hearing on 17 October 2025.
At paragraph 28 of his skeleton argument, Mr Norton agreed with the summary of the applicable legal framework set out at paragraphs 22 to 33 of the Third Defendant’s skeleton argument. Mr Norton’s submissions did not adopt the two stage approach identified in Asturion and he focussed his submissions on why the court should not exercise its discretion to strike out the claim. He conceded what he described in his skeleton argument was “the undeniable very long delay in engaging with this matter since July 2024” and that the Claimants had not filed any evidence in response to the Application. He submitted, inter alia, that:
Strike out would be contrary to the Davison Order which stayed the claim until the outcome of the Jurisdiction Challenge in the BB Proceedings. The Jurisdiction Challenge has never been determined and “the stay therefore remains in place and must be lifted before any order can be made”. [Para. 21 of Claimants’ skeleton argument.] It was incumbent on the Third Defendant to apply to lift the stay before taking further steps and it has failed to do so.
The delay between 2020 and 2024 was not the fault of the Claimants as they were awaiting the outcome of the Jurisdiction Challenge.
There are 330 Claimants in this claim with very serious claims, with “roughly” 300 more claimants waiting in the wings who are likely to be joined to the action. There have been practical difficulties in re-engaging with the claim after a period of almost four years. The Claimants, some of whom are children, are victims of serious acts, and deserve the court’s indulgence. It would be disproportionate to deprive them of the ability to have their cases heard.
The required particulars of claim would be in similar terms to those in the BB Proceedings, save as to the Claimant schedules. He could not say if any work had been undertaken on the schedules.
Strike out would be contrary to the authorities cited by the Third Defendant. He noted that in Grovit, Chest Hospital, Asturion, and Morgan Sindall the periods of delay and/or inactivity were all longer than in the index case. The Claimants’ position was that the relevant period of delay in the index claim was from the order of Soole J in the BB Proceedings on 2 July 2024 to the issue of the Application on 16 June 2025, and thus similar to the position in Asturion where the Court of Appeal upheld a decision not to strike out.
Mr Norton made submissions about the Claimants’ funding position. At paragraph 20 of his skeleton argument he referred to Mr Slade’s email of 12 October 2025 where it was said he was “waiting to resolve issues of funding”. In his oral submissions, he submitted that issues around funding “might occur”. He later submitted that he thought the appeal hearing in the BB Proceedings was relevant to the Claimants’ funding position but he did not know to what extent. Later in his oral submissions, he told the Court “if we are successful today, funding will be provided”.
Ms Brown KC pointed out in her reply that the Claimants’ submissions on the question of funding were inconsistent and not evidenced. She submitted that the unevidenced suggestion that funding had been confirmed whilst Mr Norton was on his feet was simply not good enough.
Discussion
Before considering the two stage test in Asturion, there are a number of features of the procedural background to this Application that are pertinent and need to be borne in mind.
Firstly, contrary to the position adopted by the Claimants in Mr Slade’s email of 12 October 2025, and repeated in Mr Norton’s skeleton argument, the index claim has never been the subject of a stay. Paragraphs 7 and 8 of the Davison Order simply extended the date for service of the claim forms on the First and Second Defendants and of the Particulars of Claim on all Defendants.
Secondly, it is plainly unacceptable for the Claimants not to have been monitoring the progress of BB Proceedings, whether personally or through their legal representatives. The time for service of claim forms and particulars of claim was timetabled to 28 days after the determination of the Jurisdiction Challenge so they could not possibly calculate the date for service without appraising themselves of the progress of the Jurisdiction Challenge. The various admissions by Mr Slade in his correspondence that he had “rather lost touch with developments on this case” [Email 9 August 2024], that he had “entirely lost touch” [Email 6 September 2024] and that he “did not closely follow the course of the [BB] Proceedings even from the outside” [Email 12 October 2025] are as concerning as they are frank.
Thirdly, it should have been obvious to the Claimants that, once the substantive claims in the BB Proceedings had concluded by discontinuance or strike out, the rationale for the Davison Order in delaying the service of the claim forms and particulars of claim no longer existed, and that the case management of the claim required revisiting. By CPR 1.3 the parties are required to help the court further the overriding objective. By CPR 1.1(2)(d) dealing with a case expeditiously is a relevant factor. The Claimants’ approach to ignore the substantive conclusion of the BB Proceedings was inconsistent with the principles of the overriding objective.
Fourthly, the Claimants have had the same legal representatives on record since June 2020. I consider the fact that RSC were later replaced by another solicitor in the BB Proceedings to be irrelevant. RSC and later RSP continued to act in the index claim and had a responsibility to monitor the BB Proceedings given their relevance to the progression of this claim.
Fifthly, the chronology of substantive interactions, or lack of them, between the Claimants and Third Defendant since July 2024 presents as a very sorry tale of inactivity and apathy on the part of the Claimants. Mr Norton’s criticism of the Third Defendant for not earlier applying for directions or to lift the non-existent stay is misconceived. The correspondence demonstrates the concerted efforts made by Eversheds to push the Claimants into providing a substantive response to their enquiry as to the Claimants’ intentions.
Sixthly, the Claimants have served no evidence in response to the Application. Mr Slade’s email of 12 October 2025 does not amount to evidence. It includes no statement of truth and raises as many questions as it does provide answers.
Seventhly, as at hearing on 17 October 2025, the Claimants had still not served any Particulars of Claim despite having been served with the Application some four months earlier.
Issue (1) Does the Claimants’ conduct amount to an abuse of process?
I remind myself that mere delay, whilst maintaining an intention to pursue the claim at a later date, does not necessarily amount to abuse of process. The answer to the question will depend on an objective consideration of the reason for the delay, taking into account the period of delay: Asturion at [61]. Mr Norton’s submission that a comparison of periods of inactivity in different cases can be used as a barometer of abuse of process and/or relevant sanction is too simplistic. The court is required to look to the reasons for the delay in a given case; the period of delay is only one consideration.
I am not persuaded that the 4-year period of inactivity from the issue of the claim in June 2020 to the order of Soole J on 1 July 2024 striking out the remaining claims in the BB Proceedings amounted to an abuse of process. Until Soole J disposed of those remaining claims, it would not have been apparent to the parties in the index claim that the Jurisdiction Application was never going to be determined. Whilst the Jurisdiction Application remained extant, it would not be appropriate to infer a lack of intention to pursue the index claim from the Claimants’ inactivity. The inactivity was equally consistent with the original intention to await the outcome of the Jurisdiction Application before the pursuing the index claim. The very slow start to these proceedings may however inform the decision on whether it is appropriate to construe the subsequent delay as indicative of an intention not to pursue the claim.
The 15-month period from July 2024 to the hearing on 17 October 2025 is more troubling. A possible explanation for the inactivity since July 2024 is that of incompetence on the part of the Claimants or their legal representatives. That, of itself, would not be an abuse of process: Morgan Sindall at [32]. However, the difficulty for the Claimants is that they have failed to file any evidence to explain the reason for their delay in pursuing the claim once they knew that the Jurisdiction Application would not be determined, let alone do they seek to explain the merits of their reasoning for acting as they did. The Claimants did not submit that the lack of activity was due to incompetence. The lack of explanation risks the natural inference being that there is no good explanation: Alfozan at [49].
Even if it were appropriate, which it is not, to elevate the informal emails from Mr Slade, or the submissions of Mr Norton, to evidential status, the Third Defendant and the court is left none the wiser as to the Claimants’ case as to why it has delayed since July 2024 in progressing the claim.
General assertions about the complexity of the litigation and number of Claimants to take instructions from do not bear scrutiny; the Claimants issued this claim over five years ago and have had plenty of time to particularise the claims each wishes to pursue. Even if they had decided to embark on complex High Court litigation without considering the particularity of each Claimants’ claim, fifteen months have passed since it became apparent in July 2024 that this claim now needed to be progressed.
The impact or otherwise of the Claimants’ funding position on their intention to pursue the claim is wholly unclear. The costs appeal in the BB Proceedings cannot be relevant to the Claimants’ intention as their request for 3 further months from 17 October 2025 to serve the Particulars of Claim means that they will not know the outcome of the costs appeal (listed in February 2026) by the time Particulars of Claim need to be served.
In my judgment, the inactivity on the Claimants’ part during the 15 months since July 2024 calls for an explanation in order for the Claimants to avoid the inference that they had no intention to pursue the claim throughout that period. The Claimants have failed in a spectacular fashion to provide an explanation, whether through formal evidence or otherwise. Their repeated lack of engagement over many months with the substance of the Third Defendant’s communications was followed by a lack of engagement with the Application itself. If the Claimants truly intended to pursue this claim, it is staggering that the issuing of the Application to strike out the claim did not prompt them into action. The more cogent explanation for the Claimants’ lack of activity is that they lost interest in pursuing the claim, likely well before but in any event by the time the Third Defendant starting pressing them to take action in July 2024. I am therefore persuaded that the Claimants had no intention to pursue the claim to a conclusion for at least the period from July 2024 to October 2025. That period of delay is very significant, absent of good reason and amounted to a Grovit type of abuse of process.
Issue 2: Should the Court exercise its discretion to strike out the claim?
I do not find it necessary to determine the conflict identified in Watford Control and Lloyd v Hayward as to whether Chest Hospital “compelling reasons” are required to avoid strike out following the finding of abuse of process. My conclusion on this issue on the facts of this case is the same regardless of which approach is applied. I do however note that Asturion is a modern CPR-era authority. Arnold LJ at [64] made no reference to the Court’s discretion being fettered by the need for “compelling reasons” or other factors. That is surprising if the Court of Appeal considered that the discretion was to be limited in the manner suggested in Chest Hospital. I anticipate the distinction matters not and in the majority of cases the result will be the same. The exercise of discretion under CPR 3.4(2)(b) otherwise falls to be applied in accordance with the overriding objective in CPR 1.1 to deal with cases justly and at proportionate cost. Many of the factors relevant to dealing with a case justly and at proportionate cost are equally consistent with the Court taking a robust approach when faced with abuse of process. CPR 1.1(2) includes, so far as practicable, the need to save expense, deal with cases in ways which are proportionate, ensuring cases are dealt with expeditiously, allotting an appropriate share of the court’s resources and enforcing compliance with rules. CPR 1.3 puts an express duty on parties to help the court further the overriding objective. In short, the modern approach to case management under the CPR is the antithesis of endorsing abuse of process.
Whether one applies the Chest Hospital “compelling reasons” approach to the exercise of discretion, or considers what is just and proportionate in accordance with the CPR, in my judgment it is appropriate for the court to exercise its discretion to strike out this claim.
The Claimants lack of evidence and the opaque manner in which they have presented their defence to the Application does not assist them. The Court can have no confidence that the Claimants would, if given the opportunity, now take action to serve Particulars of Claim within 3 months, even under the threat of an unless form of order. It remains unclear why the Claimants have not already put their house in order, particularly following the service of the Application. If they were serious about their commitment to this claim, I would have expected evidence of steps taken since the service of the Application and/or credible evidence as to the action they now intend to take.
Any difficulty in taking instructions is not a compelling reason or otherwise a significant factor against a backdrop of the claim having been issued over five years ago, and the Claimants’ knowledge since July 2024 that the Jurisdiction Challenge was not going to be determined.
Ongoing delay of a claim that was issued over five years old and in which Particulars of Claim have still not been served is not in the interests of justice. The Claimants assert [Mr Slade’s email 12 October 2025] that the Particulars of Claim in the index claim would be identical to those in the BB Proceedings save as to the individual Claimant schedules. If so, the allegations as to the alleged funding of ANF date to 2012. The subject matter of the claim itself is increasingly stale, bringing with it the difficulties associated with litigating matters that occurred many years ago.
Any suggestion that the Third Defendant is not seriously prejudiced because it “knows the case” [para. 26 of the Claimants’ skeleton argument] is misconceived. The Third Defendant has had this claim hanging over it for in excess of five years. It patently does not know what case it has to meet as the Claimants have not served Particulars of Claim such that it has no knowledge of the individual claims each Claimant brings. Further, the Third Defendant is exposed to the costs implications arising from being the proactive party in circumstances where RSC/RSP have implied (albeit not explained clearly) that the Claimants have or have had funding issues. I also consider Ms Brown KC’s submission as to the ongoing risk of reputational damage to the publicly listed Third Defendant to be compelling.
The Claimants’ approach to this litigation has already required a disproportionate allocation of the court’s resources. If the Claimants had acted with appropriate expediency when it became apparent that the Jurisdiction Challenge would never be determined, they could have served the Particulars of Claim on the Third Defendant without the need for any further directions. They should also have taken steps to address the question of how they planned to serve the claim on the First and Second Defendant. The Claimants’ lack of action has resulted in the need for the Application and, when the Claimants failed to respond to the Application, the further application for directions on the Application. The court’s resources are finite and better directed to other cases whose Claimants are proactive in pursuing their litigation to conclusion in a manner that accords with the principles of the CPR.
Conclusion
The court and defendants to claims have a legitimate expectation that claimants issuing claims will pursue those claims in a timely and responsible manner. The Claimants in this case abandoned any intention they had to pursue this claim for an unacceptable period of time such that the point was reached where Grovit- type abuse of process arose. The Claimants’ very belated and half-hearted attempt to re-engage with the claim is unevidenced and falls woefully short of that required to give the court any confidence that they will now put their house in order. In the circumstances, it is appropriate to strike out the claim.