Civil Procedure: Whether the Court was Right to Strike Out a Claim Due to Delays Caused by its Own Processes (Keith v Benka and Another – 2023)

The Court of Appeal considers an appeal against the striking out of a claim where lengthy delays were partly attributable to the court’s own errors.

The background

In Keith v Benka and another [2023], proceedings were issued by the respondent against the appellant in 2014 relating to alleged breaches of covenant under a lease, some of which dated back to 2007. The appellant applied to the county court to strike out the claim in 2015, which remitted the matter to the First-tier Tribunal. County court proceedings were stayed pending the FTT’s decision.

Under paragraph 16 of Practice Direction CPR 56 under the Civil Procedure Rules, the court was required to initiate the transfer of the matter to the FTT in order to commence the FTT’s case management processes.

After no action was taken either in the FTT or the county court, the appellant applied to strike out the claim on the basis that the respondent had failed to pursue the matter, causing inexcusable delay. The claim was struck out by the county court on these grounds. The first appeal was allowed, finding that the county court judge had erred in striking out the claim as the original order had not been breached.

On a further appeal, the appellant argued that CPR 3.4(2) enabled the court to determine that lengthy delays amounted to abuse of process, sufficient for the court to strike out the claim. As a result, the appellant argued that the first appeal court had erred in finding that the judge at first instance had no discretion to strike out.

The decision

The Court of Appeal dismissed a further appeal, finding that the court’s failure to effect the transfer of the matter to the FTT was a critical factor in assessing whether there had been an abuse of process, and concluding that the decision to set aside the striking out of the claim had been correct.

This issue was a key consideration for the Court of Appeal. Was the time elapsed sufficient to constitute an abuse of process where the matter remained undetermined?

Firstly, CPR 3.4(2)(b) did not prevent the striking out of a claim where there had been no breach of a court order or decision and the court was therefore in a position to strike out the claim under the Rules.

The time elapsed was lengthy but did not in itself amount to an abuse of process. However, the fact that a key reason for the delay was the court’s failure to effectively transfer the matter to the FTT was relevant to the Court of Appeal’s decision-making, which found that it would be difficult – if not impossible – to effect a fair trial.

Advice and action for landlords

A decision which very much turned on its facts, Keith is a useful guide on the application of CPR 3.4(2)(b) and a timely reminder of the procedural issue in ensuring that matters remitted to the FTT are transferred correctly.

Although the elapse of time in this case was lengthy, it alone was not conclusive in the court’s decision to set aside the striking out of the claim. The weight in the decision was very much given to the court’s failure to follow procedure.