Chris Harper takes a closer look at a case where the claimants had failed to file their allocation questionnaire for 31 months.
In the recent case of Solland International Ltd v Clifford Harris and Co, a High Court Judge has upheld the decision of Master Bowles to strike out the claimants’ (C) professional negligence claim against the defendant solicitors (D), on the grounds of abuse of process.
The Judge agreed that C’s delay in pursuing the claim, including “warehousing the litigation” and filing an allocation questionnaire 31 months late, demonstrated that they had no intention of pursuing the claim to trial or proper resolution. He agreed that, had D not applied to strike out the claim, C would have left the proceedings in “indefinite abeyance”. The delay amounted to an abuse of process.
Although it did not change the overall result that the claim should be struck out, the Judge disagreed with the master’s finding that, in taking no steps for at least 31 months to pursue their claim, C had acted in knowing and total disregard both of the rules, and of the requirements of modern litigation.
In the Judge’s view, as C had only breached the requirement to file an allocation questionnaire, the most that could be said was that C had failed to comply with the spirit of the CPR, which requires claims to be prosecuted diligently. In particular, a failure by one party to file an allocation questionnaire would not generally lead to their case being struck out and C could not have known that their breach could have that consequence.
The Judge also found that, in considering whether there had been an abuse of process, it was relevant that neither D nor the court took any action when C failed to file the questionnaire.
The decision confirms that failure to file an allocation questionnaire (and, arguably, a directions questionnaire) will not amount to an abuse of process and stresses that parties should conduct litigation diligently.
Chris Harper is an experienced solicitor and heads up the dispute resolution team in Exeter. If you would like to contact the team, please call 01392 210700 or email email@example.com.