Claim struck out for inexcusable delay (The 'Panamax Star')

The High Court has struck out a claim and counterclaim where significant delays were found to be caused by the conduct of the claimant. The judge identified periods amounting to seven years of culpable delays, with the result that a number of important witnesses had since died. The absence of important oral evidence from witnesses and the deterioration of memories of the incident over time had caused significant prejudice to the defendants and jeopardised the possibility of a fair trial - Owners &/Or Bailees of the Cargo of the Ship Panamax Star v Owners of the Ship Auk [2013] EWHC 4076 (Admlty).

The dispute involved a collision in the Amazon River on the 21 May 1999 when the Panamax Star struck the anchored vessel Auk.The claim form was issued in May 2000 and served in May 2001 and the parties subsequently agreed to a suspension of the procedural timetable until May 2004. In the subsequent years, there were sporadic without prejudice discussions but no significant progression of proceedings until the claimant's application in March 2013 to list a case management conference.

The defendant contends that:

  1. the extraordinarily long delay constituted an abuse of process that has caused serious prejudice and jeopardised fair trial and
  2. the claim should accordingly be struck out

The court concluded that the claim and counterclaim should be struck out.

Practical implications

Several implications for practitioners arise from this case:

CPR 3.4 provides:

'3.4…

(2) The court may strike out a statement of case if it appears to the court—

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim

(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings, or

(c) that there has been a failure to comply with a rule, practice direction or court order

(5) Paragraph (2) does not limit any other power of the court to strike out a statement of case.'

Authorities providing guidance for the judgment:

The judge noted that the authorities provide the following guidance (paras [33]–[37] of the judgment):

  1. there are no hard and fast rules. The court has to make a broad judgment having regard to all relevant circumstances and the justice of the case
  2. the relevant circumstances may include the length of, explanation for and responsibility for the delay; whether the defendant has suffered prejudice as a result and if so how it can be compensated for; and whether the delay is such that it is no longer possible to have a fair trial
  3. a defendant cannot let time go by without taking action so where delay does cause prejudice to him he cannot say that it is entirely the fault of the claimant
  4. in considering what is the just and proportionate order to make the court should have regard to the alternative sanctions to that of striking out provided by the CPR
  5. Grovit v Doctor [1997] 2 All ER 417, Habib Bank Ltd v Jaffer [2000] All ER (D) 424
  6. to commence or continue proceedings with no intention to bring to a conclusion may constitute an abuse of process (Grovit), however, an inordinate and inexcusable delay alone does not (Habib)
  7. in the instant case, the judge found that the claimants were responsible for the some seven years of culpable delay
  8. the defendants had demonstrated that the lengthy passage of time and subsequent death of several witnesses meant that the defendants could show that serious prejudice had, or could be caused by the claimant's delay. Furthermore, as satisfactory oral evidence would not be possible, the judge accepted that a fair trial would now be impossible (paras [69]–[72] of the judgment)

Court details

  1. Court: High Court of Justice, Queen's Bench Division
  2. Judges: Mr Justice Hamblen
  3. Date of judgment: 18 December 2013
Filed Under: News

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