Litigating

"Warehousing" a claim can be an abuse of process justifying the strike out of claim, even if the defendant has not been prejudiced. There are two types of warehousing: 1) starting proceedings with no intention of continuing the case; and 2) starting a case with the intention of continuing it but then putting the case on hold. The first is more serious than the second, although the second can still be an abuse.

As you would expect, the court will take various factors into account when deciding if there has been an abuse of process. The recent case of Morgan Sindall Construction and Infrastructure Ltd v Capita Property and Infrastructure makes it clear, though, that one of the most important factors will be the intention of the claimant. Although intention is subjective, the court is able to deduce intention from the evidence as a whole.

The case was deliberately put on hold in order to pursue a separate claim against insurers first and so "line up" both claims, with a view to eventually mediating together (or possibly combining the proceedings). That was said to be a sensible course of action (with which the defendant had indicated it agreed). Accordingly, despite long periods of inaction, it was held that there had been no abuse of process.