Court of Appeal gives important guidance on the consequences of ‘Grovit’ abuse of process

31/07/26

The Court of Appeal has handed down judgment in BlackBerry Ltd v Optiemus Infracom Ltd [2026] EWCA Civ 1004, dismissing an appeal against the Commercial Court's refusal to strike out BlackBerry's claim for abuse of process.

Optiemus alleged that the claim should be struck out, on the basis that BlackBerry had failed to progress the claim in the aftermath of the Covid pandemic. It relied on the House of Lords’ decision in Grovit v Doctor [1997] 1 WLR 640. Later authorities have confirmed that a ‘Grovit’ abuse arises where a claimant deliberately decides not to progress proceedings,  without obtaining the agreement of the other parties or the court, for reasons that are not objectively sufficient to justify the resulting delay.

The first instance Judge (Paul Stanley KC, sitting as a deputy High Court Judge) had found that BlackBerry’s initial delay had been justified, given the constraints imposed by Covid. However, he found that a further period of delay was not justified, and constituted an abuse of process. He nonetheless declined to strike out the claim, finding that strike out would be a disproportionate response.

The appeal concerned the legal test for strike out where a ‘Grovit’ abuse has been established. Optiemus, as appellant, argued that the claim should be struck out in the absence of “compelling reasons” for continuing the action. It relied on pre-CPR Court of Appeal authority and the relatively recent first instance decision in Watford Control Instruments Ltd v Brown [2024] EWHC 1125 (Ch).

The Court of Appeal rejected Optiemus’ appeal. Miles LJ, giving the lead judgment, held that the court must exercise its discretion in accordance with the overriding objective, asking whether strike out is the just and proportionate response in all the circumstances.

The Court confirmed that the exercise of the court's discretion in the context of ‘Grovit’ abuse is not governed by any special or higher test. Miles LJ considered that this would introduce an “unprincipled distinction” for “one specific form of abuse of process”. He held that the “law would not be well served”  by this approach, and that it would result in “unnecessary and costly disputes as to which side of a boundary a particular abuse fell”. The Court therefore rejected the legal analysis in Watford Control Instruments Ltd v Brown [2024] EWHC 1125 (Ch), which had adopted the contrary approach.

The Court of Appeal therefore found that the Judge had adopted the correct approach in his “impressive judgment” and held that he was entitled to refuse to strike out that claim.

The judgment provides authoritative guidance on the correct approach to sanctions following a finding of abuse of process, and will be of wider significance to courts and practitioners dealing with delayed or dormant proceedings.

Craig Morrison KC and Chintan Chandrachud acted for the successful respondent, instructed by Morrison Foerster (UK) LLP.