The High Court has thrown out a solicitor’s counterclaim after concluding that the delay to bringing proceedings amounts to an abuse of process.

Master Davison said the defendants in Western Avenue Properties Ltd & Anor v Soni & Anor had been in ‘serious breach’ of the overriding objective after warehousing the counterclaim for six years. He added that the wait to initiate the counterclaim had been tactical and the delay was both ‘inordinate and inexcusable’.

The court heard that the claimant had initially sought to restrain the defendants, including solicitor Sadhana Soni, from acting for a particular client in alleged breach of confidentiality obligations. These derived from a time when Soni had acted as in-house solicitor for Western Avenue Properties.

The claimant applied for an interim injunction, which was granted, while Soni counterclaimed for non-payment of fees during her period of engagement. Following an application for security for costs, the defendants paid £40,000 into court in August 2022.

The proceedings then went quiet for nearly five years until the defendants applied to strike out the claim. The parties agreed that the claim be struck out, the injunction be discharged and the claimants pay the defendants’ costs.

But the defendants then sought to pursue the counterclaim, saying they had regarded it as on hold or paused. The costs master said the more likely explanation was that they had avoided pursuing the matter because of the risk of provoking the claimants into action and had – either consciously or by default – ‘decided to let sleeping dogs lie’.

Having argued for the claim to be dismissed, Davison judged, ‘it is not really open to the defendants to apply the full rigour of the cases on abuse of process through delay to the claimants but not to themselves’.

He continued: ‘The defendants have been guilty of tactical manoeuvring in that they consciously did not bring forward their application for directions in the counterclaim until the claim was struck out.’

The counterclaim was struck out.

 

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