We have looked before at the decision of Master Bowles in Solland International Ltd -v- Clifford Harris & Co  EWHC 2018 (Ch) where the claimant’s action was struck out because of their failure to progress the action for 31 months and file an allocation questionnaire. That decision was upheld by Mr Justice Arnold in Solland -v- Clifford Harris & Co  EWHC 3259 (Ch).
The claimants were bringing an action against their former solicitors alleging negligence in the conduct of litigation. They did not take any steps for 31 months and the action was struck out by the Master. The claimants appealed.
- The delay by the claimant in this action, in itself, justified the striking out of the action.
- The failure to lodge the allocation questionnaire did not amount to an abuse of process.
- It was open to the Master to find that the delay had led to a fair trial being made more difficult and to strike the action out on that ground.
- The striking out of the action was not an unreasonable response and the appellate court would not interfere.
The judge upheld the Master’s finding that the delay was an abuse of process, applying the principles in Grovit v Doctor  1 WLR 640 and of the Court of Appeal inArbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd  1 WLR 1426.
THE DELAY IN ITSELF AMOUNTED TO AN ABUSE OF PROCESS
I therefore conclude that the Master was entitled to find that the Appellants were guilty of an abuse of process on the basis that, during the period from 27 April 2012 until at least 13 August 2014, they did not intend to pursue this claim to trial or other proper resolution. That was on any view a substantial period, but all the more so having regard to how stale the claim already was at the beginning of that period.
THE FAILURE TO FILE THE ALLOCATION QUESTIONNAIRE WOULD NOT, IN ITSELF, LEAD TO STRIKING OUT
The judge held that the Master had been wrong to strike out the action on the Choraria basis (Choraria v Sethia  CLC 625
The only breach of the rules that the Appellants are alleged to have committed is a failure to file an allocation questionnaire. Apart from that, the most that can be said is that they failed to comply with the spirit of the CPR, which as the Master rightly said requires claimants to prosecute their claims diligently. In my view that cannot be categorised as amounting to a complete, total or wholesale disregard of the rules. This is particularly so having regard to the consequences of failing to file an allocation questionnaire, which were impeccably analysed by the Master when considering the Respondent’s first ground for the striking out application. Still less can I see any basis for concluding that the Appellants knew, or even should have known, that a mere continuing failure to file an allocation questionnaire, even for 31 months, could have the consequence that their claim would be struck out as an abuse of process.
THE SANCTION OF STRIKING OUT UPHELD AS WITHIN THE MASTER’S DISCRETION
The judge rejected an argument that the striking out of the action for the delay was not an appropriate response.
As for ground (v), this amounts to a submission that it was simply not open to the Master on the facts of the present case to conclude that striking out was an appropriate sanction. I do not accept this. After all, the starting point for the exercise of the Master, as he correctly recognised, was that he had found that the Appellants had been guilty of an abuse of the process of the court. It is true that both Article 6 of the European Convention on Human Rights and the common law guarantee the right of access to a court, but that right does not extend to abusing the process of the court.
MEMORY FADES WITH TIME
The judge considered an argument that the Master erred in finding that the delay had led to a risk that there could not be a fair trial.
i) the Master misdirected himself in law since he ought to have directed himself that a general assertion that memory fades with time was insufficient and that the Respondent bore the onus of proving that a fair trial was no longer possible due to inordinate and inexcusable delay since the issue of the proceedings;
ii) the Master applied the test in a manner which involved wrongly reversing the burden of proof;
iii) the Master was not entitled on the evidence to conclude that there was a substantial risk that there could not be a fair trial of the claim;
iv) the Master was not entitled on the evidence to conclude that the Appellants’ delay in filing an allocation questionnaire had materially contributed to that risk;
v) the Master exceeded the bounds of his discretion in striking out the claim, having regard in particular to the Respondent’s inactivity.
So far as ground (i) is concerned, in my judgment the Master directed himself correctly. As noted above, he expressly recognised that a general assertion that memory fades with time was not enough and that the burden lay on the Respondent to show that the dimming of memory would give rise to specific problems which led to a substantial risk that there could not be a fair trial and that the Appellants’ culpable delay had materially contributed to that risk.
“All that said, I am not persuaded that the additional delay, consequent upon the Claimants’ failure to file their allocation questionnaire, has not had any material impact on recollections and, so, upon what I see to be the substantial risk that a fair trial can no longer be conducted in this case.”
The Master used similar language at the beginning of .
The Appellants contend that, in expressing himself in this way, the Master wrongly reversed the burden of proof. I do not accept this. While the Master’s choice of language in these paragraphs may have been slightly unfortunate, it must be read in context. The context is that, by this stage in his judgment, the Master had correctly directed himself as to the burden of proof (at ), had then considered whether there was a substantial risk that there could not be a fair trial and concluded that there was (at -) and was considering whether the delay occasioned by the Appellants’ failure to lodge their allocation questionnaire had materially contributed to that risk (at -). As the Master made clear, in particular at , his approach to that question was that he considered that the starting point was that, in the circumstances of this case, it was likely that 31 months of additional delay would materially contribute to the risk. Accordingly, the exercise he was engaged in was considering whether he was persuaded to the contrary by a number of points relied upon the Appellants. It was in that context that the Master said at  and , in effect, that he was unimpressed with those points.
Turning to ground (iii), the Appellants contend that the Master failed to analyse the matter with sufficient specificity: he ought to have considered what evidence there was that each witness’s recollection had dimmed in relation to each issue as a result of the Appellants’ culpable delay. In my view it is unrealistic to expect that degree of specificity. The Master carefully considered the nature of the issues in the case, and the likely impact of the passage of time on the Respondent’s witnesses’ recollections having regard to the available evidence regarding those witnesses, and in particular the dates when Mr Coleman and Mr Rattray were interviewed, the state of the latter’s recollections when interviewed and the inherent probabilities as to the effect of the passage of time since then having regard to the nature of the issues.
The Appellants also complain that the Respondent declined to disclose the attendance note of the interview with Mr Rattray. In my view this complaint is a bit rich given the Appellants’ own stance on privilege. The Appellants’ solicitor Fergal Cathie deposed to the state of Mr Rattray’s recollections in 2009 and there is no basis for the Appellants’ attempt to go behind that evidence.
Finally, the Appellants complain that the Master failed to take into account the extensive pre-action correspondence (including the post-Claim Form correspondence) and the opportunity that this had given the Respondent to interview relevant witnesses with respect to the Appellants’ allegations. I do not accept this. It is clear from the Master’s review of the procedural chronology that he was well aware of this. In my view he was entitled to conclude that it was not an answer to the Respondent’s concerns, which were focussed in particular on cross-examination at trial. The same goes for the Appellants’ reliance upon the fact that the Respondent was able to serve a Defence verified by a statement of truth signed by Mr Varma.
The position with respect to ground (iv) is similar. Again, I consider that the Master was entitled on the evidence to reach the conclusion that he did. Contrary to the Appellants’ argument, I do not consider that that conclusion was precluded by the Master’s analysis of the procedural consequences of the Appellants’ failure to file an allocation questionnaire.
As for ground (v), as noted above, the Master expressly cited Asiansky for the proposition that it was no longer acceptable practice to let sleeping dogs lie. He accepted that the Respondent could have taken action, but nevertheless he considered that the primary responsibility for the increased risk of an unfair trial lay on the Appellants and therefore the correct course was to strike out the claim. In my judgment he was entitled to exercise his discretion in that way, particularly bearing in mind how stale the claim already was at the beginning of the relevant period of delay. The right of access to a court does not extend to a right to pursue a claim which there is a substantial risk cannot be fairly tried that has been materially contributed to by the claimant’s delay.
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