Ruling finds lawyers guilty of 'tactical manoeuvring'
The High Court of Justice, King’s Bench Division, recently struck out a counterclaim filed by solicitors on the basis that their delay in bringing the proceedings amounted to an abuse of process.
The original claim sought to restrain the solicitors from acting for a particular client based on an alleged breach of confidentiality obligations. In October 2017, the claimant successfully obtained an interim injunction against the defendants. In response, the defendants filed a counterclaim for the unpaid fees of one of the defendants during the period of engagement.
In July 2018, the court ordered the defendants to provide security for costs of £40,000, which they paid into court the following month. The case then went dormant until June 2023, when the defendants applied to strike out the claim. They alleged that the failure to progress the claim following the grant of an interim injunction was an abuse of process.
In December 2023, the parties agreed that the court should strike the claim, should discharge the injunction, and should order the claimants to pay the defendants’ costs of the claim.
The defendants then asked the court for directions to proceed with their inactive counterclaim. The claimant opposed this request and applied to strike out the counterclaim based on inordinate and inexcusable delay and an abuse of process.
In Western Avenue Properties Ltd & Anor v Soni & Anor, the High Court of Justice, King’s Bench Division, issued a judgment striking out the defendants’ counterclaim upon finding the defendants in serious breach of the court's objective to deal with cases expeditiously and fairly by warehousing the counterclaim for six years.
The defendants likely avoided pursuing the counterclaim to prevent provoking the claimants into action on the original claim, the court said. The defendants seemingly had a conditional intent to pursue the counterclaim and would only pursue it only if the claim was revived, the court added.
The court found the defendants' delay prejudicial to the claimant. The delay fell squarely within the principle that unilateral delay in pursuing a claim could amount to an abuse of process, the court said. The court criticized the defendants for their "tactical manoeuvring" and for bringing forward their counterclaim only after the striking of the original claim.
The court concluded that the defendants had shown no real intention to pursue the counterclaim. The court rejected the defendants' argument that their payment of security for costs in 2018 showed a serious intention to pursue the counterclaim, given that the defendants made no effort to advance the case after that point.
