Western Avenue Properties Limited & Anor v Sadhana Soni & Anor
[2024] EWHC 2124 (KB)
Morgan Sindall Construction and Infrastructure Limited v Capita Property and Infrastructure (Structures) Limited & Anor.
27 January 2023
[2023] EWHC 166 (TCC)
High Court
A construction company sued an engineer for messing up a stadium design. The engineer said the company was delaying the case on purpose, but the judge said no, they were trying to solve another related problem first. The judge ruled in favour of the construction company, but the construction company had to pay less in legal fees because they spent too much time on their own paperwork.
Key Facts
- •Morgan Sindall Construction and Infrastructure Limited (Claimant) sued Capita Property and Infrastructure (Structures) Limited (First Defendant) and Sabre Structures Limited (Second Defendant) for approximately £10 million.
- •The claim alleged that the First Defendant, a consulting engineer, breached its obligations by failing to adequately review the Second Defendant's defective designs.
- •The Second Defendant was insolvent.
- •The Claimant obtained default judgment against the Second Defendant and pursued the Second Defendant's insurers, Aviva.
- •The First Defendant applied to strike out the claim against it as an abuse of process ('warehousing').
- •The Claimant argued that delays were due to attempts to coordinate proceedings with the action against Aviva.
- •Significant delays occurred both pre-action and during the proceedings.
Legal Principles
Warehousing a claim, by deliberately not pursuing it for a substantial period, can be an abuse of process justifying strike-out, even without prejudice to the defendant. However, mere delay, without more, is insufficient.
Asturion Foundation v Alibrahim [2020] EWCA Civ 32; [2021] 1 WLR 617; Alfozan v Quastel Midgen [2022] EWHC (Comm) 66; Grovit v Doctor [1997] 1 WLR 640; Arbuthnot Latham Bank v Trafalgar Holdings Ltd [1998] 1 WLR 1426
A two-stage analysis is required: (1) whether the conduct is an abuse of process; (2) whether strike-out is a proportionate sanction. The court considers the claimant's subjective intent, deduced from all the evidence.
Asturion Foundation v Alibrahim
There is a distinction between commencing proceedings with no intention of pursuing them and commencing with such intention but later warehousing the claim. The former is a graver abuse.
Asturion Foundation v Alibrahim
Pre-action delay is relevant, as it can support the conclusion that the claimant intended to warehouse the claim or lacked a genuine intention to proceed. It also impacts the proportionality of strike-out.
None explicitly cited, but derived from the judgment's reasoning.
Outcomes
The First Defendant's application to strike out the claim was dismissed.
The judge found that while there were significant delays, the Claimant's conduct was not an abuse of process. The delays were primarily due to a commercially sensible attempt to coordinate proceedings with the action against Aviva, a strategy initially supported by the First Defendant. Further, the First Defendant's delay in bringing the strike-out application, after the Claimant revived the action and before substantive steps were taken, weighed against granting the remedy.
The Claimant's costs were summarily assessed at £95,000.
The judge found that the Claimant's costs were excessive, particularly regarding time spent on document preparation and the number of fee-earners involved.
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