The High Court has rejected a plea from a defendant in a construction dispute to throw out a claim where the claimant went ‘silent’ for 21 months.

The applicant in Morgan Sindall Construction and Infrastructure Ltd v Capita Property and Infrastructure wanted the claim struck out as an abuse of process in a case where the process known as ‘warehousing’ came under scrutiny.

Mr Justice Eyre ruled that the claimant had not simply put the matter on hold until it was convenient but was waiting to tie it up with another related action. Indeed, he was critical of the defendant’s own conduct, noting that when the matter ‘came to life’ again in December 2021 there was no allegation of an abuse of process and instead it moved to mediation.

The judge said the defendant had chosen not to make a strike-out application until December 2022 and instead had kept open the possibility of applying for this in reserve, ready to bring into play when the mediation failed.

‘A party who alleges abuse of this kind must act promptly,’ said the judge. ‘Such a party cannot allow the action to continue and then some time later seek to strike out for this form of abuse.

‘The actions of a party seeking strike out are highly relevant as to whether to grant that remedy in the light of the overriding objective. A party who holds in reserve the option of applying for this form of strike out will not get relief if the consequence of its holding the option in reserve is to allow the action to continue.’

The dispute goes back to 2012 when the claimant was contracted to build new stadia at the Old Trafford Cricket Ground in Manchester and engaged the first defendant as a consulting engineer and subcontracted part of the design and build work to the second defendant. It is alleged that designs were defective and the claimant seeks £10m to cover the extra expenditure it incurred.

The first defendant argued that the claimant started proceedings with no intention of pursuing them or at least putting them on the ‘back burner’ while looking at other routes.

The claimant accepted progress had not been ‘as expeditious as it should have been’ and it had paused matters while it brought another related action against its insurer. A pre-action protocol letter was sent back in February 2014 which prompted a letter of response denying liability.

The first defendant’s solicitors had to write in 2016 after six months of no contact, saying they were ‘baffled by the glacial pace’ of the pursuit of the matter.

Proceedings were issued in 2017 but soon after they were stayed. There followed various periods of months on end with nothing happening. Defendant lawyers said the claimant did the ‘bare minimum’ to keep the action alive in what was by now ‘patently a stale claim’.