Mary Pinder on the issues of delay and the abuse of process. Mary Pinder is a barrister at No. 1 Sergeants' Inn

In the advent of the implementation of case-flow management by the courts, a line of authority arising out of Grovit v Doctor & ors (1997) has seen the court using its inherent jurisdiction to strike out stale actions for abuse of process.

In Grovit it was found that the plaintiff had no interest in pursuing his defamation action. The House of Lords held that such lack of intention to pursue the matter to trial, evidenced by delay, was an abuse of process entitling the court to dismiss the action. Lord Woolf stated that if there is such an abuse of process it is not strictly necessary to establish want of prosecution under either of the limbs in Birkett v James (1978).

In Arbuthnot Latham Bank v Trafalgar Holdings & ors (1997) Lord Woolf emphasised that mere delay does not of itself amount to abuse of process. (He cited Barclays Bank v Maling (1997) in which the action had been adjourned generally for a substantial portion of the period of delay.)

However, delay coupled with a wholesale disregard of the rules may amount to abuse which, with the change in culture already taking place, will be more readily recognised than before.

Striking out such claims even before the limitation period has expired, if it was fair to do so, would save much time and expense in investigating questions of prejudice.

In Choraria v Sethia (1998) Lord Justice Nourse stated that delay which involved "complete, total or wholesale disregard… of the rules of court with full awareness of the consequences" was capable of amounting to an abuse of process.

But in Miles v McGregor (1998) the Court of Appeal emphasised that the abuse of process route was for cases of an exceptional nature where the conduct of the party in default amounted to such an affront to the court to be classed as abuse of process. The delay in Miles was said to be far less culpable and serious than that in Choraria.

So delay evidencing a lack of intention to pursue the matter or, alternatively, wholesale failure to comply with the timetable prescribed by the rules of court, may constitute abuse of process and the action can be struck out under the court's inherent jurisdiction. While in some cases this abuse may be within the first limb of Birkett it is also a separate ground for striking out or staying the action.