Procedure: delay alone is not an abuse of process

Mere delay, however inordinate and inexcusable, does not, without more, constitute an abuse of process, especially when an oversight by the court is partly to blame for the delay. In Keith v Benka and another [2023] EWCA Civ 821, the appellant was a long leaseholder of a flat. At the material time, the first respondent was the registered proprietor of the building in which the flat was situated. In 2014, the first respondent issued proceedings against the appellant in the county court for breaches of various covenants in the lease. Some of the breaches dated back to 2007. He also claimed forfeiture. The appellant denied the breaches and denied having received a valid notice served pursuant to section 146 of the Law of Property Act 1925. In the alternative, she claimed relief against forfeiture. Owing to the appellant’s denial of the breaches, the first respondent was required to apply to the First-tier Tribunal for a determination of breach pursuant to section 168 of the Commonhold and Leasehold Reform Act 2002. He failed to do so. In June 2015, the appellant applied to strike out the claim owing to the first respondent’s failure to comply with section 168. The application was refused, but the court made an order transferring the matter to the FTT for determination of whether there had been breaches of covenant. Unfortunately, the court did not follow the correct procedure for transferring the matter to the FTT. In September 2019, the appellant made a fresh strike-out application on two grounds. First, on the basis that the first respondent was in breach of the county court order as he had not referred the matter to the FTT. Second, on the basis that there had been an inordinate delay in prosecuting the claim, which prejudiced a fair hearing. The district judge struck out the claim pursuant to CPR 3.4(2) on the basis that there had been non-compliance with the court order to transfer the claim to the FTT. On appeal, the claim was reinstated. The circuit judge found that the county court order did not require either party to make an application to the FTT, and the district judge had no discretion under CPR 3.4(2) to strike out the claim as there had been no breach of a rule or court order. On appeal, the appellant argued that the circuit judge was wrong to find that no discretion existed under CPR 3.4(2) to strike out a claim unless there was a breach of a rule or court order. The Court of Appeal agreed. There was a power under CPR 3.4(2)(b) to strike out a claim that was an abuse of process. However, although the Court of Appeal noted that the claim was stale, it determined that an inordinate delay alone, especially in circumstances where the delay was in part due to an error by the court, did not amount to an abuse of process. The appeal was dismissed. Elizabeth Dwomoh is a barrister at Lamb Chambers