The High Court has overruled a costs master’s decision to strike out a £378,000 claim, despite the judge agreeing that there had been an abuse of process.

In Ahmed v Chojnowski Mrs Justice Hill DBE ruled that striking out was not a proportionate response to the abuse and that the handling of the case could be better penalised through financial sanctions.

Master McCloud had made the order following a hearing in February, declaring it ‘lamentable’ that months of inaction from the claimant’s solicitors had allowed the claim to grind to a halt. There had been no cooperation, letters were not answered and no efforts were made to move the claim forward – all of which amounted to a breach of the overriding objective, the judge found. 

The court heard that following an RTA in 2015, the defence had admitted liability four years later and the parties then worked towards a trial window through a series of court directions.

The defendant’s solicitors started chasing for an update in April 2021 and for several months the claimant’s solicitors either ignored them or made indications of progress that did not materialise.

A trial window was missed as the claimant said he intended to change solicitor and was hamstrung by confidentiality issues. It was acknowledged that matters had gone ‘slightly askew’ but the defendant proceeded with a strike-out application.

The claimant argued this was a draconian remedy of last resort and pointed out there had been no 'unless' order in the case before strike-out.

On appeal, the claimant’s solicitors argued that even if the master was justified in finding an abuse of process, there was a clear failure to exercise discretion, as included in the Court of Appeal guidance in Cable v Liverpool Victoria Insurance Co. Ltd.

The judge accepted there was no mention in the judgment of the second stage of the Cable test, the proportionality concept or the weighing of factors for and against the proposition that strike-out was a proportionate response to the abuse.

‘In those circumstances, and with great respect to the master, it is not possible to be confident that the master applied the second stage of the Cable test, perhaps because neither counsel referred specifically to it,’ she said. ‘I reach the same view as the learned master as to the finding of the abuse of process and the nature of it. However, I do not consider that a strike-out was, in all the circumstances, a proportionate response to the abuse.’

The claimant was ordered to pay the defendant’s costs in an indemnity basis from March 2021 to February 2022 and given 21 days to respond to certain court orders.