BlackBerry Limited v Optiemus Infracom Limited

Paul Stanley KC :

1. For about six years this case has made little progress. Before me, the parties make cross-applications. The claimant software company (“BlackBerry”) applies, if necessary, to wake the claim from its sleep by lifting the stay that was automatically imposed on it in 2020. The defendant (“Optiemus”), an Indian provider of telephone handsets, applies to strike it out.

2. The claim was issued in August 2019, in the Commercial Court. When it was issued, permission to serve it in India was required. That was given by Moulder J. Her order provided that the time for filing a defence would be 23 or 37 days after the service of the particulars of claim depending on whether Optiemus acknowledged service. In December 2019, the claim form and particulars of claim were served in India, under the Hague Service Convention. Optiemus neither acknowledged service nor filed a defence. In March 2020, having learned that service had been effective, BlackBerry said it would apply for summary judgment. Then all went quiet. Neither party did anything. If CPR 15.11 applies, an automatic stay was imposed in July 2020. The case became comatose until July 2024, when BlackBerry made what it now says was an unnecessary application to lift the automatic stay.

3. The ultimate questions I must decide are whether, because of delay, the claim should be struck out as an abuse of process, and (if not) whether it is and should remain stayed under the automatic stay provisions of CPR 15.11. I must thread a path through several issues of law and fact. The parties dispute whether the claim was automatically stayed in 2020 under CPR 15.11; whether, if it was, an application to lift the stay is an application for relief from sanctions; some of the principles according to which the court should strike a claim out as an abuse of process where it has not been progressed; the reasons why the claim has not progressed; the effect of delay; and the overall result.

4. I have concluded that the claim was automatically stayed in 2020, and that the application to lift it is to be considered consistently with the principles that govern an application for relief from sanctions. BlackBerry deliberately decided not to pursue the claim for around four years. Its reasons were not objectively strong enough to justify such long delay, so BlackBerry was abusing the court’s process by unilaterally leaving the case to lie undecided. That delay risked causing general prejudice to Optiemus, but did not cause specific identifiable prejudice (other than in relation to interest); a fair trial remains possible. I have decided in all the circumstances that it is inappropriate to exercise the court’s discretion to strike the claim out, and that I should grant relief from sanctions, so that the claim can continue, but that I should consider whether to make that relief conditional.

5. In what follows, I shall first deal with the relevant legal principles, then describe the facts in more detail, and finally explain my conclusions. Legal principles

6. The civil courts exist to resolve disputes “justly and at proportionate cost”—as the overriding objective in CPR 1.1 puts it. That includes “ensuring that [the case] is dealt with expeditiously and fairly” and “enforcing compliance with rules, practice directions and orders”. The parties are, under CPR 1.3 “required to help the court to further the overriding objective”. The English civil justice system relies on the parties to keep things moving. Its rules provide a template for the exchange of pleadings, case management conferences at which directions will be given for trial, progress monitoring, and trial. Within those parameters the court will “actively manage” cases. But it cannot, generally, take the initiative to force the parties towards resolution.

7. The ideal is clear (cases should be decided “expeditiously”), and the correlative obligations are also clear in general terms (the parties should “help the court” to achieve that) and specifically (they should comply with the rules that aim to achieve that). How the court should respond to cases where the ideal is not met is, however, more difficult, and must be sensitive to the circumstances of each case. Abuse of process: principles

8. As Arnold LJ said in Alibrahim v Asturion Fondation [2020] EWCA Civ 32 , [2020] 1 WLR 32 (Practice Note) at [44] “abuse of process can take many forms”. The form with which I am concerned has come to be known, following a metaphorical tag adopted by Lord Woolf MR in Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426 (CA) at 1437, as “warehousing”. I prefer to avoid that term, which had rhetorical force in the context of that case but does not advance analysis of the underlying principles. These can be summarised as follows: a) Mere delay in pursuing a claim—however inordinate and inexcusable—does not constitute an abuse of process: Alibrahim at [47] (Arnold LJ), citing Icebird Ltd v Winegardner [2009] UKPC 24 at [7] (Lord Scott of Foscote). b) Bringing litigation with no intention of seeing it through to a decision can constitute an abuse of process: Alibrahim at [48] citing Grovit v Doctor [1997] 1 WLR 640 (HL) at 647 (Lord Woolf). Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426 (CA), extended Grovit beyond cases where there was no intention to proceed to judgment to those where there was no intention of doing so unless some contingency arose. In Arbuthnot Latham Lord Woolf said this (at 1437): “If, subject to any directions of the court, proceedings are not intended to be pursued in accordance with the rules, they should not be brought. If they are brought and they are not intended to be advanced, consideration should be given to their discontinuance or authority of the court obtained for their being adjourned generally”. c) The underlying rationale, expressed in both Grovit and Arbuthnot Latham in similar terms, is that “[t]he courts exist to assist parties to resolve disputes and they should not be used for other purposes” ( Arbuthnot Latham at 1437; see also Grovit at 647). d) That broad principle therefore covers three categories of case. (i) When the claimant, from the outset of the litigation, does not intend to bring it to a decision. (ii) When the claimant at first intends to bring a case to a conclusion but later decides to abandon it: Alibrahim at [49]. (iii) When the claimant starts a case intending to see it to its conclusion, but later decides to pause it, planning to revive it if something happens in the future: Alibrahim at [61]. e) As HHJ Keyser KC pointed out in Lloyd v Hayward [2024] EWHC 2033 (Ch) at [57], the first two categories are more likely to be abusive than the last, since they run more directly contrary to the purposes for which the court’s process exists. However, it is clear from Alibrahim that the third category may be abusive; and that none of the cases is automatically to be characterised as an abuse. “Can” does not mean “must”: none of these fact-patterns will necessarily be an abuse of process Alibrahim at [50], [53]. f) In summary, then, a “unilateral decision by a claimant not to pursue its claim for a substantial period of time, while maintaining an intention to pursue it at a later juncture, may well constitute an abuse of process, but does not necessarily do so” Alibrahim at [61]. g) The key factor in deciding whether such a unilateral decision does constitute an abuse of process is “the reason why the claimant put the proceedings on hold, and the strength of that reason, objectively considered, having regard to the length of the delay”: Alibrahim at [61]. Although a claimant should (instead of taking the decision unilaterally) ask the defendant for consent or apply to the court for a stay or directions, it is “not the law” that the failure to do so “automatically renders the claimant’s conduct abusive no matter how good its reason may be or the length of the delay”. h) The questions whether the claimant deliberately decided not to progress an action because of a deliberate decision and (if so) why, raise issues of intent: see Morgan Sindall Construction and Infrastructure Ltd v Capita Property and Infrastructure (Structures) Ltd [2023] EWHC 166 (TCC) , 206 Con LR 204 at [33]. But whether that decision was abusive raises objective issues about the length of the delay and, as Arnold LJ put it in Alibrahim “the strength of that reason objectively considered ” (emphasis added). An abuse of process may exist even where the claimant has acted in good faith. i) The length of the delay was recognised as important in Alibrahim , by Popplewell J in Société Generale v Goldas Kuyumculuk Sanayi Ithalat Ihracat AS [2017] EWHC 667 (Comm) , and by Eyre J in Morgan Sindall at [85] (“highly relevant … The longer the period of stasis in an action the more risk there is of prejudice to the other party and the greater the potential for an adverse impact upon the administration of justice”). The relevant delay is that which has occurred during the proceedings (not before their issue), though pre-action delay may be relevant to factual questions, such as what inferences can be drawn as to intent: Lloyd v Hayward [2024] EWHC 2033 (Ch) at [71]–[72] (HHJ Keyser KC). j) Among the reasons that have, at one time or another, been mentioned as potentially offering objectively strong reasons for a decision to put an action on hold are: coordination with other related litigation ( Morgan Sindall Construction and Infrastructure at [95], [101], Alibrahim ); negotiations ( Braunstein v Mostazafan & Jambazan Foundation (unreported, 12 April 2000) referred to in Alibrahim at [58]); concern about the defendant’s insolvency and insurance position ( Realkredit Danmark A/S v York Montague Ltd , The Times, 1 February 1999); and further investigation of the facts ( Board of Governors of the National Heart and Chest Hospital v Chettle (1998) 30 HLR 618). But it is never a question of simply ticking off reasons on a list of “acceptable reasons for delay”: the question is always whether the reasons are strong enough, objectively, in the context of the delay that has occurred. k) Mr Friedman, for Optiemus, submitted that this approach (looking to the reasons for the decision) applies only to cases if the claimant had a contingent intention to continue the case, and not if it had entirely abandoned any expectation of proceeding. If that were so, then it would be important to categorise each case into a “maybe” or “never” case. I do not think this is correct in principle, or realistic in practice. It is not correct in principle because, as the Court of Appeal made clear in Alibrahim , a conclusion that there has been abuse is never automatic. It is not realistic in practice, because the line between “never” and “maybe” will rarely be clearcut ( Chettle , to which I refer below, provides an example). Debating precisely which category a case should be placed into would be needlessly scholastic. However, the vaguer or more remote the possibility of revival, and the longer the delay, the more difficult the claimant will find it to show that the reasons for putting the claim on ice are objectively strong enough to avoid a finding of abuse. l) Where the claimant has abused the process, strike-out does not follow in every case. It will “frequently” do so; but is not automatic: Alibrahim at [50]. Some cases will cross the line into abuse but not be sufficiently serious to justify the sanction of striking out (see Alibrahim at [79]). There is, then, a two-stage process, and the stages should not be muddled together. The court must first decide whether the claimant’s conduct constitutes an abuse of process; if it is not abusive, there is no discretion to be exercised. If abuse is found, the court must then decide whether to exercise its discretion to strike out the claim: Alibrahim at [64]. That will include considering questions of proportionality and whether there are other alternative means of meeting the abuse: Alfozan v Quastel Midgen LLP [2022] EWHC 66 (Comm) at [15].

9. I must say a little more about this last point, because there is a conflict of opinion in recent first-instance decisions. In Watford Control Instruments Ltd v Brown [2024] EWHC 1125 (Ch) , Richards J referred to comments made by Aldous LJ in Board of Governors of the National Heart and Chest Hospital v Chettle (1998) 30 HLR 618, a pre-CPR decision of a two-judge Court of Appeal. In Chettle the claimants had commenced the action for proper objectives in 1986, relying on events occurring since 1981. In 1990 they decided to put the case on hold, because they realised (after disclosure of documents) that their chances of success were slight unless new facts emerged. However, having failed to find any useful evidence, they had not discontinued the action which had “passed from being a genuine action to resolve a dispute … into one which was moribund and only to be re-activated if something turned up”, and had “no real intention of bringing the action to trial, or even progressing it for the purposes of settlement”. It was therefore abusive. Aldous LJ went on to say: “Once the action came to amount to an abuse of the process of the court, it required to be struck out unless compelling reasons to the contrary could be demonstrated.”

10. In Watford Control Instruments, Richards J considered this to be a statement of principle, and regarded Arnold LJ’s comments in Alibrahim —which are in tension with it—as obiter statements which were “incapable, as a matter of precedent, of altering the principle that Aldous LJ formulated in Chest Hospital ” [40] (emphasis added), which he considered remained good law under the CPR (see [45]).

11. In Lloyd v Hayward [2024] EWHC 2033 (Ch) , HHJ Keyser KC considered Watford Control. He thought it went too far, and that “compelling reasons” are not necessarily required to avoid striking out: see [66]. His view was obiter, but he gave extensive reasons for it.

12. Like HHJ Keyser KC, I say nothing about the correctness of the result in Watford Control . But, like him, I cannot endorse the proposition that, in cases of Grovit abuse (or its related abuses) there is a rule of law that the claim must be struck out unless there are “compelling reasons” to the contrary. With great respect to Richards J would decline to follow that aspect of his decision, because I think it is clearly wrong. Whatever might be the value of referring to pre-CPR cases to decide procedural questions, this is an area where the relevant rules and landscape changed. In particular, the power to strike out was codified in CPR 3.4 as a discretionary one, and the over-riding objective was introduced in CPR 1.1, with specific provision in CPR 1.2 that the court must “seek to give effect to the overriding objective when it—exercises any power given to it by the Rules”. The imposition of a hard-edged test (“compelling reasons”) upon a particular category of abuse of process would be, as HHJ Keyser KC said, “incongruous”. It would be inconsistent with CPR 1.2. Moreover, in Watford Control the parties accepted that Aldous LJ had intended to state a general principle: see [35]. However, again agreeing with HHJ Keyser KC, I do not read Aldous LJ’s comment as intended to state a rule. It was a statement made by reference to “the action” that Aldous LJ was considering, not (as I would read it) a considered statement of a legal test applicable in “any action” in which the issue arises, and does not seem to me to have been intended to depart from other statements which showed greater flexibility—analysed by Arnold LJ in Alibrahim (eg at [79]) in comments that, although strictly obiter , were not I think per incuriam . That flexibility, as Clarke LJ pointed out in Asiansky Television plc v Bayer Rosin [2001] EWCA Civ 1792 at [45] was enhanced by the introduction of the CPR.

13. As HHJ Keyser KC noted, the Grovit -type abuses cover a spectrum of cases. They range from conduct of the most egregious (such as commencing litigation simply to harass or pressurise, with no intention of pursuing it to a conclusion, or the wholesale disregard of rules) to a decision which has only just crossed the line into abuse because the length of the delay is not (quite) justifiable by the reasons for it. A strict and inflexible test has its attractions: it would be simple to apply, and strongly incentivise good practice. But the court cannot, in my view, meet its duty to exercise its powers consistently with the overriding objective—which embraces a number of elements which do not always point the same way—if it must apply a “compelling reasons” test across the board. I accept Mr Friedman’s submission that because the remedy will usually be fashioned to meet the wrong, it will be natural for the court to regard striking out as having considerable appeal as a remedy for wrongly commencing or continuing proceedings. But that observation adds little to Arnold LJ’s recognition that striking out would “frequently” follow from a finding this type of procedural abuse, and stops short of any conclusion that a special test of “compelling reason not to strike out” must be surmounted as a matter of law.

14. In my judgment, then, the position is as follows. There are two separate questions. The first is whether there has been an abuse of process. That is an evaluative, but not a discretionary decision. It is the fulcrum on which the existence of the discretion turns, and the test is given by Alibrahim . The focus at that point is on the claimant’s intent (whether it deliberately decided not to progress the case), its reasons for that, and the objective strength of those reasons as a justification for the delay. The second question, which arises only once abuse has been found, is discretionary in the full sense: how should the court respond to the abuse that has been identified? Under the CPR, the proper approach to the exercise of that discretion does not depend on “compelling reasons”, but on the application of the principles that govern the court’s exercise of such discretion under the CPR, including proportionality and the overriding objective. The result of the exercise will “frequently” be that the claim will be struck out. But that is because that will “frequently” be what the overriding objective requires, not because there is some special test of “compelling reason”.

15. I shall therefore consider the following questions, where (a)–(d) constitute the building blocks in deciding whether there was an abuse of process and (e) involves deciding how to respond to any abuse that is established: a) First, did BlackBerry deliberately decide not to pursue the claim? Without such a decision, this is merely a case of “long delay” which is not itself an abuse of process. If there was such a decision, the case may (but may not) disclose an abuse of process. b) Second, if there was such a decision, what delay did it cause? c) Third, if there was such a decision, what were the reasons it? d) Fourth, do those reasons objectively justify the delay? That involves both the previous questions, because a reason that is good enough to justify a short delay may not be good enough to justify a longer one. I should conclude that there has been an abuse of process if, but only if, the claimant took a deliberate decision not to progress the claim towards decision for reasons which were, judged against the length of the delay, not objectively sufficient. e) Finally, if there was an abuse of process, is the appropriate response to that abuse, having regard to the overriding objective and the effect of the abuse, to strike out the claim. I should consider proportionality, including alternatives (short of strike out) that would adequately meet the overriding objective, and the responsibility of and prejudice to both parties and effect on the court. I should not approach this exercise in a spirit of indulgence, or on the false assumption that prejudice is an essential component of the analysis (it is clear, from Grovit , that it is not); I must remember that the overriding objective involves not merely fair trial, but the enforcement of rules and practice directions; but I should not insist on the existence of a “compelling reason” not to strike the claim out. CPR 15.11: Automatic stay

16. The second set of issues in the case concerns CPR 15.11. That provides: (1) Where— (a) at least 6 months have expired since the end of the period for filing a defence specified in rule 15.4; (b) no defendant has served or filed an admission or filed a defence or counterclaim; and (c) no party has entered or applied for judgment under Part 12 (default judgment), or Part 24 (summary judgment); and (d) no defendant has applied to strike out all or part of the claim form or particulars of claim, the claim shall be stayed. (2) Any party may apply under Part 23 for the stay to be lifted. The application must include an explanation for the delay in proceeding with or responding to the claim.

17. In this case, there are two legal questions about this rule. First, how (if at all) does it apply in Commercial Court cases where the claim form has been served out of the jurisdiction, with permission, and the defendant has not acknowledged service? Second, what approach should the court take to an application under CPR 15.11(2), and is it an application for relief from sanctions which engages CPR 3.9, and the principles in Denton v TH White Ltd [2014] EWCA Civ 906 , [2014] 1 WLR 3926 ? Does CPR 15.11 apply?

18. The trigger for CPR 15.11 is the point at which at least six months have passed since “the end of the period for filing a defence specified in rule 15.4” without any of certain things having happened.

19. BlackBerry submits that for technical reasons there was, in this case, no “period for filing a defence specified in rule 15.4”, so that the automatic stay never applied. It says this because CPR 15.4 specifies a “general rule”, and then (until 2022) said that it is subject to “the following rules”, namely CPR 6.35, CPR 11, CPR 24.4 and CPR 6.12. In this case, the time for service of the defence was fixed under CPR 6.37, which provides that where a claim form is served out of the jurisdiction but with permission, the court “will specify the periods within which the defendant may … file a defence”. But CPR 6.37 is not listed in CPR 15.4. Therefore, BlackBerry submits, there was in this case no “period for filing a defence specified in rule 15.4”, and the stay never applied.

20. Mr Morrison KC, who appeared for BlackBerry, could not lay his finger on any plausible reason why the automatic stay should not be imposed in a case where service was accomplished with permission under CPR 6.37. (The point would apply equally, to cases where alternative service was ordered under CPR 6.15 which also requires the court to specify the period for filing a defence, but which is also not mentioned in CPR 15.4.) The overriding objective, including the need to deal with cases “expeditiously” applies indifferently to such cases. The absence of any filed defence—or any application making a defence redundant—would be as good a reason to stay such a case as any other. So the question is whether the rules’ wording fails to achieve its purpose in such a case.

21. In my view, the answer to this point is straightforward. Rules such as 6.15 and 6.37 indicate that the court will, in cases to which they apply, specifically consider whether to exercise its jurisdiction to abridge or extend time. The time so specified becomes the time specified by rule 15.4 (for the purposes of rule 15.11). The reason those provisions are not specifically identified in rule 15.4 is that the rules there identified are those which automatically provide for a different time. There is no need to refer there specifically to the court’s power to alter time, because that does not replace but modifies the general rule in a specific case. Where CPR 15.11 refers to the “period specified in rule 15.4” it goes without saying that it means that period with any modification that the court may have made. That would be my preferred interpretation. The alternatives would be either that no period applied under CPR 15.4—so the automatic stay never operates— or that the period specified in CPR 15.4 applies to impose an automatic stay, even if the court had fixed some other period for filing a defence under a rule not mentioned there. Neither alternative is coherent with the evident purpose of the rules or the overriding objective, though if I had to choose between them I would prefer (as a matter of language and logic) the one that left CPR 15.4 to operate.

22. Mr Morrison submitted that there was another reason why CPR 15.11 could not apply. In Commercial Court cases an acknowledgement of service is mandatory, so that the only period that could apply runs from acknowledgement. Since, in this case, Optiemus had not acknowledged service until recently, the time never ran. He accepted that this point, if valid, had been overlooked in other cases. But he submitted not only that it was what the rules say, but that it made sense in the context of a specialised procedure where acknowledgement of service is required.

23. Neither point is correct. As to the first, the plain reading of the rule does not assist BlackBerry’s argument. CPR 58.10 does not disapply CPR 15.4. On the contrary, it provides that it applies. So long as a defendant does file an acknowledgement of service (as it should in the Commercial Court), it will always be the “second limb” of CPR 15.4 that applies. But failing to acknowledge service does not extend the time for filing a defence sine die : it simply means that the defendant now has two problems—that it is late acknowledging service, and that it is late filing a defence. In this case that was indeed what Moulder J’s order (quoted in paragraph 41 below) provided: paragraph 3 specified that the defendant would have 23 days after service of the particulars of claim to file a defence, or 37 days after such service if service was acknowledged. It did not, correctly, dispense with any time for service of a defence if acknowledgement of service was not filed. The fact that Optiemus should have acknowledged service does not change the position.

24. As to Mr Morrison’s second point, it would be incongruous indeed if the automatic stay did not apply in the Commercial Court where particulars of claim are served. There may be a lacuna if a claim form is served without particulars, but (if so) it arises from the generosity with which the Commercial Court permits service of claim forms without particulars. And it does not arise here, because this claim form was served with the particulars of claim, and with a specified time for a defence to be filed, even if service was not acknowledged.

25. In short, the periods set out in the order were, for the purposes of CPR 15.11, the period specified in CPR 15.4 (as extended by Moulder J). Optiemus was served on 19 December. Since it did not acknowledge service, the period for filing a defence expired at the end of 14 January 2020, and the automatic stay was imposed on 14 July 2020. If either party wishes to lift that stay, an application under CPR 15.11(2) is required. Does Denton apply?

26. A “sanction” in this context has two features. First, it involves something undesired. There is no doubt that a stay can be such a thing. Second, the thing that happens must be a response to “ failure to comply with any rule, practice direction or court order”. That is an integral part of CPR 3.9, and of the Denton criteria, because they require the court to consider whether the breach was serious or significant (which can hardly be done unless there is a breach) and the reasons for it (which can hardly be done unless there is a breach).

27. The argument that the stay imposed by CPR 15.11 is not a “sanction”, so that an application under CPR 15.11 to lift that stay does not involve an application for relief against sanction, has attracted various views. They were considered in detail by Foxton J in Bank of America Europe DAC v Citta Metropolitana di Milano [2022] EWHC 1544 (Comm) , [2022] 2 CLC 505. The debate turns on the observation that CPR 15.11 is not triggered by any specific breach of the rules, a practice direction, or an order, but simply by passage of time. The only arguable breach of any specific rule that it assumes will have happened is that no defendant has filed a defence, though it might even be argued that that is not as such a breach, since CPR 15.2 requires a defence only if a defendant “wishes to defend all or part of the claim”. Moreover, if that is the breach, CPR 15.11 is a funny sort of sanction—one might more be inclined to suggest that it rewards a defendant for not filing a defence (the obvious “sanction” for that being judgment in default of defence).

28. However, CPR 1.3 imposes upon the parties a general duty to “help the court to further the overriding objective”. The obligation to advance cases lies not just on claimants but on defendants: see e.g. Asiansky Television plc v Bayer-Rosin [2001] EWCA Civ 1792 , at [48] (Clarke LJ). In Bank of America , Foxton J identified that this, coupled with judicial statements explaining that where there are good reasons for a case to be “put on ice” the right approach is for the parties to come to court to enable that to be done formally, pointed towards CPR 15.11 imposing a “sanction”.

29. Just as importantly, Foxton J pointed out that the question is, in the end, an arid one. Both CPR 3.9 and CPR 15.11 require the court to consider “all the circumstances”. Whether or not CPR 15.11 is a special instance of CPR 3.9, to which the Denton principles apply, or a separate power, the relevant material and the relevant considerations are likely to be similar, if not identical. In any event, I would follow Foxton J’s decision unless I thought it was clearly wrong (which I do not), and apply the Denton criteria, with the flexibility that he noted.

30. Although Denton is often described as laying down a “test”, it does not specify criteria which can be mechanically applied to reach a black or white answer. It offers, rather, a structured framework for analysis where the relevant test involves considering “all the circumstances”. Like Foxton J, I see every reason to apply the same discipline when considering an application under CPR 15.11(2), recognising that there will be certain recurrent features of such cases which the application of the Denton criteria will bring to light, including the need to consider (at some point, probably stage 3) that it will be a rare case under CPR 15.11(2) when both parties are not in some way in breach of their obligations, and that it will be common for the obligations to include the important, but non-specific, obligation to assist the court to manage the case appropriately.

31. I do not find it useful simply to say that it will or will not be hard to persuade the court to lift the stay. Such generalisations, though they may reflect reality, do little to guide the parties or the court.

32. There is obviously much overlap between these questions and those that are relevant to abuse of process, but they remain in principle different enquiries. The facts

33. The history here may be divided into five periods: the pre-action stage, a period from the issue of the claim form until around March 2020; a period from March to around August 2020; the period from September 2020 until the first attempt to revive the action in July 2024; and the period from then until this hearing. The pre-action stage

34. BlackBerry claims under a contract dated 1 February 2017, which began to operate in June 2017. It consisted of a Master Services and License Agreement which incorporated a Services Addendum as Schedule 2. BlackBerry was to provide various software and related services for Optiemus to use to produce and launch mobile handsets. The agreement was to last for five years. It required Optiemus to pay royalties based on the revenue from the devices sold. It specified minimum royalties for each year of the agreement’s term, starting at USD 4m for the first year (which also included a lump sum fee of USD 0.5m), rising to just under USD 6m for the agreement’s final year.

35. BlackBerry rendered various invoices to Optiemus for licence fees and minimum licence fees from 26 July 2018, but except for one payment of USD 1m in August 2018, Optiemus did not pay them. During this period, BlackBerry was (but, according to Optiemus, late and defectively) providing some of the “deliverables” (mostly, as I understand it, software) that the contract envisaged. The product was launched, but was not the commercial success that had been hoped for.

36. On 1 April 2019, BlackBerry’s solicitors (Morrison Foerster (UK) LLP, “Morrison Foerster”) sent a letter before action to Optiemus. It said that it was a letter under the pre-action protocol, and suggested that Optiemus should take legal advice and preserve documents. Optiemus acknowledged receipt on 13 April 2019, saying that it was “in the process of finding and selecting adequate legal representative in the matter” and would reply in detail on 19 April 2019. It did so, in a thirteen-page letter that explained that it had not yet received legal advice. It took issue with the facts as Morrison Foerster’s letter had described them and set out a rival account. It said that there was an underlying dispute about BlackBerry’s performance, and whether minimum licence fees should be payable when—as Optiemus alleged—BlackBerry had defaulted on its obligations to deliver necessary software on time and in a way that worked, and that this had delayed the launch of Optiemus’s product, and given rise to a counterclaim. It proposed a meeting to discuss dispute resolution.

37. Morrison Foerster replied on 3 May 2019. It was a holding response, though it also asked for “details of the law firm you have appointed in England” and for confirmation that they would be instructed to accept service. It said that BlackBerry was “considering” Optiemus’s letter.

38. That produced a reply from Optiemus on 15 May 2019, in which Optiemus said that its “selection & engagement of the counsel” would depend on whether BlackBerry was willing to participate in alternative dispute resolution, about which Optiemus was waiting to hear from BlackBerry. That detailed answer was not immediately forthcoming.

39. On 19 July 2019, BlackBerry issued another invoice (for a USD 3.63m “minimum license fee”). This led Optiemus to send BlackBerry a letter on 17 August 2019, stating that the invoice was “rejected” because of the disputes set out in Optiemus’s letters of 19 April 2019 and 15 May 2019.

40. On 19 August 2019, Morrison Foerster sent a long letter, setting out BlackBerry’s case about the agreement and its responses to Optiemus’s letter of 19 April 2019. It ended (after sixteen pages of detailed narrative and argument) with the conclusion that “it seems clear that Optiemus will refuse to pay … unless and until proceedings are issued. BlackBerry will be commencing legal proceedings for the full amount”. Commencement to March 2020

41. Preparation of those proceedings must have been well advanced, because the claim form was issued on 20 August 2019. BlackBerry applied that day (as, under the rules then in force, it needed to) for permission to serve the claim form in India. Moulder J granted the application after considering the papers on 23 August 2019. Her order provided as follows: “2. The Defendant shall have 23 days after service of the Particulars of Claim to file an acknowledgement of service.

3. The Defendant shall have (1) 23 days after service of the Particulars of Claim; or (2) if the Defendant has filed an acknowledgement of service, 37 days after service of the Particulars of Claim; to file an admission and/or a defence.”

42. On 21 August 2019, a day after the claim form had been issued, Morrison Foerster wrote to Optiemus enclosing a copy of the claim form and particulars. The letter asked whether Optiemus had yet instructed a law firm in England, and whether that firm had instructions to accept service. It said that if such confirmation was not given “[w]e will formally serve these proceedings”. Optiemus did not respond. On 11 September, Morrison Foerster wrote another letter. That letter referred to paragraph 5.1 of Practice Direction PD51U (as it then stood) and confirmed that BlackBerry was taking steps to preserve relevant documents. It did not remind Optiemus of its obligations to do so (though they had been mentioned in the pre-action protocol letter). However, it did ask again for details of the law firm that Optiemus had instructed, and for confirmation of whether that firm had instructions to accept service.

43. BlackBerry submitted that this letter showed that Morrison Foerster assumed that Optiemus had instructed English solicitors. Given the earlier letters in which Optiemus said it planned to do so and the natural expectations of how it might act, it would have been reasonable to expect Optiemus would do that, at some point. On the evidence, that is what Morrison Foerster assumed had already happened. But there does not seem to have been much objective justification for that assumption: Optiemus had not said it had, and Morrison Foerster had not been contacted by anyone purporting to represent Optiemus.

44. India is party to the Hague Service Convention, and has made an objection under Article 10 of that Convention to service other than through official channels. So it was necessary for BlackBerry to follow that route to service, unless Optiemus agreed to accept service through an agent (which it had not done), or the court ordered service by alternative means (which it was not asked to do). The necessary documents were provided to the Foreign Process Section on 11 September 2019, including both the claim form and the particulars of claim. They were sent forward by the Foreign Process Section to India on 2 October. Service was expected to take up to eight months. BlackBerry therefore applied, as a precaution, to extend the validity of the claim form, and on 6 December 2019, Phillips J granted an extension to 19 October 2020.

45. In fact, the documents were served on 10 December 2019, by delivery to Optiemus’s business address where they were given to an “office boy/attendant”. On 11 December 2019, Amit Mahajan, a senior manager in Optiemus’s legal department, wrote to the Senior Master and to the Indian Central Authority, complaining that only some of the documents had been served, but that the particulars of claim, two forms, and part of an exhibit were missing. He asked for proper service. For the purposes of this hearing, Optiemus accepts that it cannot prove that service was defective, because (as Optiemus’s letter accepted) the papers had become shuffled, and an error might have occurred in Optiemus’s office while they were making their way from their recipient to Mr Mahajan. Since the Indian bailiff’s certificate of service—which is now available—records valid service, the parties accepted for the purposes the hearing before me that all the documents, including the particulars, must be taken to have been served.

46. Mr Mahajan’s letter to the Senior Master reached Morrison Foerster on 17 December 2019, and they replied by email (though not to Mr Mahajan) and courier on 23 December 2019. At this point they had no reason to question Mr Mahajan’s statement that there had been missing documents. They enclosed them “to ensure you are in receipt of a full set of documents while awaiting further service via the Ministry of Law and Justice”. So, at this point, both parties were assuming (a) that Optiemus had not yet been validly served and (b) that valid and formal service would take place later.

47. The courier, however, did not deliver that letter because—despite attempting to deliver it on eight dates between 26 December 2019 and 10 January 2020—Optiemus’s offices were closed. Morrison Foerster recorded that in an email of 13 January 2020. Optiemus did not reply.

48. At around this time—precisely when, the evidence does not say—Optiemus made many employees who had worked on the project redundant.

49. Matters rested there until 2 March 2020, when the Foreign Process Section provided Morrison Foerster with a certificate of service, certifying that all the documents had been served on 10 December 2019. This changed the picture. If Optiemus had, as now appeared to be the case, been validly served on 10 December 2019 then there was no need to repeat the process, and Optiemus was already late to file an acknowledgement of service or a defence. On 17 March 2020, Morrison Foerster wrote to Optiemus, setting out those contentions. The letter stated that: “[T]he deadlines for Optiemus to file an acknowledgment of service, a defence and/or an admission have all passed. Optiemus has failed to file any of these documents and is now out of time to do so. Given that Optiemus has failed to respond to BlackBerry’s claim, BlackBerry will now proceed to seek judgment. While we would be entitled to obtain default judgment (and our position in this respect is reserved), it is our present intention to seek summary judgment.” The letter asked Optiemus to provide details, either of emails or addresses of its own or of “the law firm that you have instructed in England” to simplify service.

50. BlackBerry did not take the easy step of obtaining judgment in default because it was worried about enforcement. A default judgment will be difficult to enforce in India, whereas a summary judgment may be easier. The application for summary judgment (assuming, as Mr Murtha’s evidence says, that BlackBerry did not consider there was any defence with a realistic prospect of success) would have required care, and would have needed to be accompanied by an application for permission to make it before an acknowledgement of service had been filed. But it would not have been complex. When, in 2024, BlackBerry did make that application, it gave a time estimate of 1 day, and that estimate also had to accommodate the extra time required to deal with the application that was by then necessary to lift the automatic stay. Some 60 paragraphs of Mr Murtha’s statement addressed the summary judgment application. If made in early 2020, the application would have required a witness statement of around 60 paragraphs, and a time estimate of half to one day.

51. It would, however, have required service on Optiemus which—since Optiemus had not acknowledged service, and had not therefore given an address for service in England and Wales—would have entailed another Hague Convention process. Alternative service was not a realistic possibility, because of difficulty in persuading the Indian courts to enforce a judgment that has been obtained following service by anything other than Hague Convention methods. So BlackBerry would have needed to serve an application for summary (not default) judgment by Hague Convention methods. In ordinary times, that would have been simple, albeit slow. March 2020 to August 2020

52. March 2020, however, was not ordinary times. Covid-19 was spreading. The Foreign Process Section closed in March 2020, and did not reopen until 28 July 2020. Hague Convention service was not therefore possible during this period.

53. There is less clear specific evidence about what the position was in India, which was also affected by Covid-19. The limited evidence is that there were restrictions in India, but they were easing from late summer 2020. It is possible and even likely that service might have been even slower than normal. But the evidence does not show anything standing in the way of BlackBerry attempting it from around August 2020, or that it would not have been achieved, albeit slowly. September 2020-July 2024

54. In terms of what steps were taken, formally or in correspondence, to progress the action during this period, the answer is simple: there were none. BlackBerry did not issue its intended summary judgment application. It did not issue any other application (for instance for judgment in default of acknowledgement of service or defence). It did not apply to the court to stay the action, or for directions. Optiemus did not acknowledge service or apply for an extension of time to do so. The same was true of the parties’ correspondence about the dispute. Optiemus did not reply to Morrison Foerster’s letter of 13 March 2020. BlackBerry did not press for an answer. Optiemus did not ask what BlackBerry intended to do about the case, and BlackBerry did not volunteer anything. On BlackBerry’s interpretation of the contract, further payments of minimum fees fell due on 30 June 2020 (USD 4.70m), 30 June 2021 (USD 5.37m), and 30 June 2022 (USD 5.95m), but BlackBerry did not demand them, or send invoices for them, and Optiemus did not ask why it had not done so. During this period, one of Optiemus’ potential witnesses died, and Optiemus can be expected—if it simply followed its normal three-year document retention policy—to have disposed of some documents.

55. What was BlackBerry thinking? For that there is only limited evidence. BlackBerry has chosen not to waive privilege, and the account it has given is short on detail.

56. Mr Murtha’s witness statement describes BlackBerry’s thinking as follows. Having described the problems that Covid-19 caused with Hague Convention Service he says: “60. Further, and separately from these issues, the COVID-19 pandemic also caused serious economic disruption in India. Given the pandemic’s effect on global businesses (coupled with Optiemus’ lower than expected sales of the Mobile Devices themselves), BlackBerry had serious concerns about Optiemus’s financial health and its ability to satisfy any judgment that BlackBerry may have ultimately obtained.

61. In the light of these matters BlackBerry concluded that it would not be proportionate to incur the costs of issuing or seeking to pursue a summary judgment application at that time.”

57. Mr Murtha does not say exactly when BlackBerry “concluded” these things, though the context suggests that it is around mid-2020. He does not say that BlackBerry obtained or considered Optiemus’s accounts, and the inference from what he says were the relevant factors (the pandemic and the performance of Optiemus’s handsets in the market) is that they were not a factor. He exhibits no contemporaneous memorandum of the decision. He does not say that there was any plan, or practice, of monitoring Optiemus’s financial position going forward, or any definite idea about when the claim might be revived (if ever). There is no evidence that BlackBerry monitored the case systematically.

58. Counsel addressed me at some length about Optiemus’s accounts and market information about its share price. In the absence of any evidence that BlackBerry considered those accounts as part of its decision-making until 2024, the evidence is not of much significance. I summarise it and my conclusions from that material briefly, converting from INR Lakhs to USD at the exchange rate used by Mr Rabinowicz in his evidence for Optiemus, which involves some element of approximation.

59. When the claim was brought, in August 2019, Optiemus’ most recent accounts for the year ended 31 March 2019 showed a small profit before tax (USD 0.3m), cash of USD 2.4m, and retained equity of USD 48.2m. Its shares then traded at INR 48, having been declining since late 2018. In the period following issue but before the pandemic struck, they continued to drift downward, reaching around INR 20 in March 2020, and reaching a low of INR 19 in mid-July 2020. There were other signs of financial strain in late 2019 or early 2020: the commercial problems with the project that BlackBerry had been engaged to assist with, and the decision to make some employees redundant shortly before Covid.

60. In August 2020, Optiemus published accounts for the year ended 31 March 2020. They showed a loss of USD 9.9m, cash of USD 0.8m, and retained equity of USD 35m. Revenue had declined from USD 53m to USD 45m. Both non-current and current liabilities were slightly reduced. By the time those results were published, Optiemus’s share price had begun to recover. It was above INR 50 by August 2020, and just short of INR 200 in October 2020.

61. In June 2021, Optiemus published accounts for the year ending 31 March 2021. Those accounts showed that some sort of restructuring had occurred: Optiemus had disposed of property and repaid non-current debt. Equity was slightly increased. Revenue from current operations had decreased a lot (apparently because of the restructuring, which seems to have consisted of disposing of that part of the business which was focused on property investment). The headline figure for the year showed a profit only from the discontinued operations. The continuing operations remained loss-making, but the loss was much smaller (around USD 250,000). Cash was USD 2.2 million. The share price continued to trend upwards, reaching INR 370 in September 2021.

62. In May 2022, Optiemus published financial statements for the year ended 31 March 2022. Equity was slightly increased. Cash was USD 0.7m. Revenue from operations was increased (up from USD 23m to USD 56.2m), and profit was USD 3.4m. Its share price was flat.

63. In May 2023, Optiemus published financial statements for the year ended 31 March 2023. Equity was slightly increased. Cash had reduced to USD 0.3m. Revenue had increased again (to USD 80.4m), and profit before tax had increased to USD 5.2m. The trend in its share price remained flat.

64. In May 2024, Optiemus published its financial statements for the year ended 31 March 2024. Equity was slightly increased, and cash broadly unchanged (USD 0.4m). Revenue was slightly increased (to USD 85 million), and profit before tax very slightly reduced (to USD 4.2 million). At around this time, the share price appears to have begun to rise rapidly, for reasons that have not been explored.

65. It is hard to use a set of accounts to predict whether any specific liability will be met or enforced. BlackBerry proves to have been right that 2019–21 was a difficult time for Optiemus, culminating in a restructuring of its operations during 2020-21. But the difficulty (reflected in the share price) was not something that struck suddenly in March 2020: the market took a jaundiced view of Optiemus when the claim was issued, which did not become much worse after March 2020; by later in the year it was improving. Throughout the period, Optiemus was filing timely accounts, on a going concern basis, without any insolvency process. Throughout the period it had positive equity; and it had growing revenues from 2021, was materially profitable from 2021/22 onwards, with only one year in which it made a very significant loss (2019/20). The market’s view, signalled by the share price, was plainly pessimistic in mid 2019-20, and thereafter improved.

66. I have no evidence about how BlackBerry analysed these figures before 2024 (or even that it did). But, although nobody in March 2020—or for that matter in August 2019—would have regarded Optiemus as a sure fire bet if it came to enforcement, and there might well have been a shadow in 2020/21, there is no striking event to support the view that things got very much worse than they had been in mid-2020, or that they got dramatically better in 2024. One cannot simply read across from any single figure in the accounts to any conclusion about enforcement, because a major driving factor in enforcement of a significant debt will not be whether there are assets which are available for enforcement if it comes to that, but whether the business’s owners and financiers are willing to find money to avoid insolvency. There were always good reasons for restrained optimism, in Optiemus’s case, that this would be so; there is no evidence that it was a business that its stakeholders wished to abandon, or that it was perceived as on the brink of collapse. That conclusion was more likely from 2021 onwards than it had been in 2019 or 2020. A rationally balanced view would have been—throughout the period—that an enforceable judgment for USD 6 million would have had real economic value, though not necessarily face value. July 2024-November 2025.

67. The first sign of life in the case since March 2020 came on 19 July 2024, when BlackBerry issued an application notice seeking to lift the automatic stay, and for summary judgment. Having issued that application, Morrison Foerster wrote to Optiemus on 23 July 2024, enclosing a copy and asking for consent to service. Optiemus did not reply. The documents were provided to the Foreign Process Section for Hague Convention service in India on 25 July 2024. Mr Murtha testified to a continuing belief that Optiemus had no defence to the claim.

68. What had happened to cause this resuscitation attempt? Mr Murtha’s witness statement reveals that at some point—obviously some time before July 2024, though Mr Murtha does not say exactly when or why—BlackBerry engaged a corporate investigation firm to investigate Optiemus’s assets, and that Optiemus’s annual report for 2022/23—dated 12 August 2023—suggested that it was now a worthwhile target. That, coupled with the ability once again to serve in India (a point which must, as a matter of common sense, have been obvious many years before July 2024) led, he says, to the action being reawakened.

69. Optiemus did now approach English solicitors, Teacher Stern LLP, who first broke cover in an email on 4 September 2024 (on the basis that they were not yet formally instructed). Formal instructions were in place on 10 October 2024. Five days later, on 15 October 2024, the application notice and supporting documents were served in India, though news of that event did not reach Morrison Foerster until December 2024.

70. By November 2024, Teacher Stern LLP had their feet under the desk, and various matters were debated in correspondence, including a reservation of rights by Optiemus to apply to strike the claim out. Much of the debate concerned the merits of the summary judgment application. Those, after considerable delay in producing a draft defence and counterclaim, were ultimately addressed by agreement, with BlackBerry accepting that the draft defence and counterclaim raised an arguable defence. There was also a lot of discussion over whether Optiemus needed an extension of time to file an acknowledgement of service, (which it did not do until 18 August 2025, when it simultaneously issued the application to strike out the claim).

71. While this was happening, the limitation periods for BlackBerry’s pleaded claims began to expire. Depending on precisely when they accrued, the first may have expired on 1 July 2024, and the last will have expired on 19 August 2025. BlackBerry has further claims that it seeks to bring by amendment, but the limitation period for those has not expired. Application of the law: abuse of process

72. The reason this claim made no progress after March 2020 was that BlackBerry decided not to do anything about it. It was not, on the evidence, forgotten or overlooked. At some point in 2020, BlackBerry took what Mr Murtha accepts was a “deliberate decision not to pursue a summary judgment application or default judgment application”. I therefore answer the first of the questions posed at paragraph 15, “Yes”.

73. So far as the second of the questions posed at paragraph 15 is concerned, the period of delay was just over four years (from March 2020, when BlackBerry learned that the proceedings had been served in India, to July 2024 when it issued its summary judgment application).

74. As to the third and fourth questions in paragraph 15, there were two reasons for the delay. The first was that it was not possible to serve a summary judgment application by Hague Convention methods during the height of the Covid-19 pandemic, and certainly not while the Foreign Process Section was closed, until the end of July 2020. This was, clearly, a very good reason. Although there were—in theory—things BlackBerry could have done (default judgment, alternative service) they would not have been likely to achieve a judgment that could be enforced in India. BlackBerry could have applied to the court for directions, if necessary staying the action until the Covid emergency passed. But it would be unreasonable to criticise BlackBerry for how it dealt with the truly unprecedented circumstances in mid-2020. I have no doubt how such an application would have been dealt with: the court would have sanctioned a delay until such time as more-or-less normal service resumed. There was, then, an objectively strong reason for the delay from March to August 2020, and BlackBerry could not be said to be abusing the court’s process by maintaining the action during that period.

75. That reason, however, no longer applied from around September 2020. From then on, BlackBerry’s deliberate inaction was not justified by the procedural obstacles thrown in its way by Covid-19. If it had a justification, it must have been BlackBerry’s perception that even a legally enforceable judgment was likely to miss its target, because Optiemus might not have sufficient assets to meet it.

76. The question, then, is as to the strength of that reason, objectively considered, having regard to the period of the delay (just under four years).

77. The court is not blind to the fact that litigants care about a defendant’s solvency (see, for example, Realkredit ). But the central purpose of the court process is not ultimately to produce money, but to determine rights. In one sense, the practice that caused Lord Woolf concern (what he labelled “warehousing”) had exactly this vice: bringing claims, of unknown economic value, to have them in the back pocket in case something turns up and the claim becomes worth pursuing is not what the court’s process is for. Deciding whether a defendant is worth powder and shot is a familiar conundrum for claimants. But once a claimant has decided to deploy the court’s process, it should—as I see it this was the point that Lord Woolf was making—be committed to following that through to its conclusion, or ending the action.

78. This case does not disclose an objectively strong reason for four years’ delay: a) The obvious next step—issuing and serving a summary judgment application—would not have entailed massive expense. BlackBerry believed that Optiemus had no realistic prospect of defending the claim, which was a simple contract claim. It knew, before the proceedings were issued, roughly what Optiemus planned to say. Costs were predictable; they would have been modest in proportion to the amount at stake. b) BlackBerry’s concerns about Optiemus’s financial position were general and impressionistic. Optiemus was not in any sort of insolvency process, and none was threatened. Throughout the period, its shares traded; and from July 2020 they rose, suggesting that investors saw it as a company with value. It regularly filed audited accounts, on a going concern basis, without qualification; those accounts always showed substantial equity and (from 2021 onwards) an improving financial condition. Optiemus did not present a sure-fire target, but it never had. c) Whatever Optiemus’s condition, a judgment in BlackBerry’s favour would have become capable of effective enforcement if Optiemus’s financial position improved. It would, at any time, have strengthened BlackBerry’s negotiating position. It would have provided Optiemus (and its other stakeholders) with reliable and definite information about its true financial obligations. d) There is no evidence that BlackBerry systematically investigated Optiemus’s financial status or kept it under regular review. The delay long outlasted Covid-19, and the low point in Optiemus’s financial condition (which was 2019/20), the restructuring of its operations in 2020/21, and its increasing revenues and return to profitability thereafter.

79. Mr Morison, while accepting (as BlackBerry’s evidence does) that BlackBerry should have asked the court for a stay, submitted that, if it had done so in 2020, a stay would surely have been granted. I do not agree, once the problems with service caused by Covid-19 had fallen away. I do not think the court would, or should, thereafter have agreed to keep proceedings about a disputed claim in indefinite suspended animation while BlackBerry hesitated to spend the relatively modest sums required to make a summary judgment application. The likely judicial response would have been, “You have brought this case, and say that there is no defence. Either make the application that will establish that to be so, or discontinue the case.”

80. It follows that BlackBerry’s unilateral decision to do nothing to advance the claim for almost four years from August 2020, based on its perception of the costs and benefits to it, financially, of doing so, did constitute an abuse of process, because the reasons for it were not, judged objectively against the length of the delay, sufficiently strong to justify it. A brief pause to take stock would have been understandable, but not an indefinite hiatus measured in years. Having decided, in 2019, to engage the court’s process, BlackBerry should (once it became possible to do so) have followed through towards the objective of that process—a decision on the case.

81. The answer to the fourth question posed in paragraph 15 above is therefore: “No, BlackBerry’s reasons were not objectively strong enough to provide a good reason for its decision given the length of the delay”.

82. I must therefore consider the appropriate response to this abuse of process, and specifically whether it justifies striking out the claim. If I had accepted the proposition that, having found abuse, a strike-out should follow unless there are “compelling reasons” to the contrary, I would have been bound to strike the claim out, for no such compelling reason has been identified. But, for reasons I have explained, I do not accept that that is the applicable test, and I will consider the circumstances more broadly. General factors: the parties’ conduct

83. Much time was spent in mutual recrimination about the fact that Optiemus did not acknowledge service in 2020. BlackBerry said that it showed deliberate disregard of the court’s rules; Optiemus blamed it on Morrison Foerster who, it suggested, had written a misleading letter to an unrepresented litigant saying that Optiemus was now “out of time” to acknowledge service. I do not endorse the criticisms of Morrison Foerster’s letter. Optiemus was “out of time” to acknowledge service, and if it had been in any doubt about the consequences of that it could either have asked Morrison Foerster to explain or, as it said it would, could have consulted English solicitors. But the failure to acknowledge service did not matter much for BlackBerry. Its only direct consequence was to require the application for summary judgment to include an application that it be permitted to be made before acknowledgement had been filed, which was a minor and routine point, and to prevent rapid service of the application. It played no part in BlackBerry’s thinking.

84. Another point that I have not found influential is the mutual recrimination about whether service was validly effected in December 2019, or who said what about that. Through nobody’s fault (certainly not BlackBerry’s), the position was confused. That confusion played no part at all in BlackBerry’s decision and was not a cause of the delay. Had Optiemus wanted to resolve the confusion, it had the means to hand: ascertain the facts, consult lawyers, make an application. It chose not to do so.

85. On the other hand, the broader point—that Optiemus, no less than BlackBerry, had the means and the responsibility to progress the case, remains relevant. So does the fact that Optiemus simply did not engage with the case, formally or informally. Its attitude was one of wholesale disregard of procedure. As Clarke LJ put it in Asiansky Television (at [48]) “It is no longer appropriate for defendants to let sleeping dogs lie. ... [A] Defendant cannot let time go by without acting and then later rely upon the subsequent delay as amounting to prejudice and say that the prejudice caused by the delay is entirely the fault of the claimant.” Those comments apply with considerable force where the defendant has not taken the basic step of engaging with the proceedings and setting out its defence, though having the means to do so. Potential prejudice to Optiemus

86. The potential prejudice to Optiemus is put under various headings: loss of access to relevant witnesses, loss of access to relevant documents, loss of the ability to contest service, potential prejudice to Optiemus’s shareholders because of its decisions about whether to reserve for this claim, the accrual of additional interest, and what Optiemus labelled the “submarine pursuit” of BlackBerry’s claim.

87. Witnesses. According to Optiemus’s evidence, of the 106 employees who were most deeply involved on the project to which BlackBerry’s services related, all but one have now left Optiemus. The only remaining employee was part of the legal team, and his role does not appear likely to be central to the case. Those who are most likely to be central to the case—because they were involved in the technical delivery of the project and might therefore have relevant information about the matters on which Optiemus’s defence is based—were in the “product” and “software” teams, and left the company some years ago. Optiemus will no longer be able to rely on former employees—some of whom it may be unable to locate, some of whom left Optiemus on bad terms, and one of whom died in 2021.

88. BlackBerry’s response to these points relies on several strands. It notes that some relevant personnel (Mr Nitesh Gupta, who remains a director of Optiemus, and Mr Ashok Gupta, who remains its Chairman) are still available, and that Optiemus is still in contact with a consultant, Mr Mahendra Bothra, who was the project manager. It points out that Optiemus engaged in pre-action correspondence in 2019, and would have had at least some opportunity to capture recollections at that point. And, centrally, it says that any prejudice in this respect cannot significantly be attributed to any delay for which BlackBerry might be criticised. Most of the employees who left, and notably those who left on bad terms, were made redundant shortly before the pandemic, and therefore some time before any decision for which BlackBerry could be criticised. The employee who died in 2021 would have been unlikely to have been thoroughly proofed before his death, even if the proceedings had advanced quickly.

89. The evidence does not support the proposition that BlackBerry’s delay caused concrete prejudice in this respect. As BlackBerry says, the departure of many staff (and the death of one specifically) would have happened (or had already happened) whatever BlackBerry had done. But that does not mean that no prejudice has been caused. Even in a case where it is to be expected that key events (what software was delivered, when) will be recorded in writing, as time passes it becomes harder for busy people to provide the sort of background knowledge that can put documents in perspective. And witnesses become less inclined to devote substantial time to doing so. On the other hand, given that two years had already passed since the relevant events by 2020, the further prejudice is not likely to have been great. This was never going to be a case that turned on vivid memories of very recent events, and always one with a strong documentary and expert element.

90. Documents. According to Optiemus, two different forms of prejudice have been suffered in relation to documents.

91. The first concerns a file-sharing site, maintained by BlackBerry, called “WatchDox”. It was a repository for documents relating to the project such as coding logs, software testing reports, error reports, project timelines, explanations for delays, and project review sheets. It was maintained by BlackBerry. Four Optiemus personnel had credentials to access WatchDox. All have now left the company, and their credentials no longer work.

92. There is not likely to be long-term specific prejudice in this respect, and any that there is should be capable of being remedied. If WatchDox (or its contents) is maintained by BlackBerry (which has preserved documents), so that the only issue is re-enabling access to documents that continue to exist, that can be resolved, if necessary as part of disclosure.

93. Optiemus’s second point is that its ordinary document retention policy is to retain documents for three years, so that relevant documents are likely to have been lost in the ordinary course. BlackBerry responds that this is down to Optiemus: it was aware of the claim in 2019; it was reminded of the obligation to preserve documents; and it should have done so.

94. In relation this aspect, BlackBerry has a valid, though not a decisive, point. It would have been quite clear to Optiemus in 2020 that documents needed to be preserved. When the three-year window began to close in 2021, it would not have been impossible—not even surprising—for it to turn out that the summary judgment application was on the cards, if not in the works. Optiemus could, if in doubt, have asked for clarification, but it never did. Had there been evidence of a decision in, say, 2024 to draw a line, that might have been of some weight. The evidence is simply that documents were destroyed in the normal course of business after three years, quite early in the relevant period of delay, despite the pre-action correspondence and service of the proceedings, while the claims were unquestionably pending and well in time, and without making any inquiry to find out what was happening. That, to the extent it happened, was a very questionable decision, based on what Optiemus already knew, and not one for which BlackBerry could—by its inaction—be held responsible. A decision by a defendant to pending litigation to destroy relevant documents could not, in my view, be regarded as prejudice caused by the claimant’s delay.

95. On the other hand, one cannot completely discount all risk of prejudice through loss of documents. Even a litigant who aims to preserve likely repositories of relevant documents may sometimes find, as the case develops, that something has escaped the net. So it is possible—but really a matter of speculation—that the delay may have caused some prejudice that is not Optiemus’s fault. Moreover, although issues of liability will probably largely be the subject of documents that one could expect BlackBerry to have retained, issues arising out of the quantum of any counterclaim that Optiemus maintains are less likely to be, so that one cannot assume that Optiemus’s documents will be completely irrelevant.

96. Loss of the ability to contest service. Optiemus’s evidence says that it is now impossible to discover whether it was in fact served in December 2019 with a full set of documents, which is why it has accepted that service was valid. I give no weight to this factor. It has nothing to do with BlackBerry’s decision to put the proceedings on ice, and everything to do with Optiemus’s decision not to instruct lawyers promptly, acknowledge service, and make the appropriate application (if so advised). The ball in this respect was entirely in Optiemus’s court, and it chose not to play it.

97. Accounting and provisions. Optiemus says that its accounts made provision for BlackBerry’s claim in the notes to its balance sheet for 2020/21, but that it thereafter decided not to reserve for it because “Optiemus did not hear further from BlackBerry in pursuit of the claim and therefore considered it to be at an end”. Re-introducing a reserve could, it is said, have an adverse effect on Optiemus’s share price, which could be harmful to the interests of those who have bought shares in the interim. Related to this, Optiemus says that the sudden introduction of a large claim would cause it operational and financial difficulties.

98. BlackBerry’s claim, as issued in August 2019 was for USD 6.49 million. Note 33 to the 2018/19 accounts (signed on 6 June 2019) referred to the contract with BlackBerry and to a demand for USD 4.29 million from BlackBerry, of which it said USD 1.5 million had been paid, and that USD 0.72 million had been recognised as a “royalty expense” allowing for a counterclaim. A similar statement appeared in the accounts for 2019/20 (signed on 30 July 2020). The figure allowed (USD 0.83 million) was fractionally higher—but the size of the demand (USD 4.29 million) remained unchanged, so that the figures do not appear to have been revised to reflect events in 2019/20.

99. The financial statements for 2020/21 were signed on 30 June 2021. They contained no such note.

100. These notes give rise to various questions, none of which the evidence permits me to do more than raise. Why did the note to the 2019/20 accounts, if it was intended to reflect this claim, not describe its value accurately? How strong a basis did Optiemus have to conclude as early as June 2021 that the claim had been abandoned? Why did management, before taking that decision, not contact BlackBerry? And what figure would have been provided for the liability, given that the basis of the note had always been that it was reduced by a counterclaim of USD 4.29 million?

101. I do not consider that there is relevant prejudice here. Preparing accounts which give a true and fair view of the company’s financial position is a matter for management judgment. What management judgment went into the decision to disclose the dispute with BlackBerry (inaccurately) in 2019/20, but to remove that note the following year is insufficiently clear. Between March 2020 and March 2021, only a year of inactivity had occurred, during a time of global dislocation when BlackBerry had said nothing positive to show that it had fundamentally changed its intentions since March 2020, and when no attempt had been made to find out whether it had done so. Not much, if any, of this period can be attributed to delay which was abusive. This does not mean that the accounts were not conscientiously prepared; that is not a question for me. But I do not consider that as a matter of relevant prejudice for the purposes of considering how to exercise a discretion under the CPR that there is anything in this opaque story that is material.

102. Interest. BlackBerry accepts that the delay will have increased the period for which interest might be awarded, and that that is in principle relevant prejudice. Mr Morrison, however, submits that this is prejudice that can be eliminated when the court comes to consider (if it does) what interest should be awarded. It could also be addressed by means of a suitable condition attached to any lifting of the automatic stay. I agree. This is quantifiable financial prejudice which the court has adequate powers to address without striking out the claim.

103. “Submarine pursuit”. By this expression, Optiemus complains that by leaving the claim unpursued BlackBerry has lulled it into a false sense of security, giving it the impression that BlackBerry had accepted that the contract was at an end with no further obligations, while now seeking to pursue not only the originally unpaid invoices, but further minimum royalty fees which are said to have fallen due since 2020. BlackBerry contests that, arguing that it has not said or done anything that could have led Optiemus to that view.

104. I do not consider that I can, or should, resolve this issue. The basis on which the application has been made has not been implied abandonment, but abuse of process. Whether BlackBerry’s conduct reasonably led Optiemus to conclude that the contract was over may need to be decided when BlackBerry claims under post-2020 invoices. It will remain open to Optiemus to make any such argument that is available to it. My decision here may determine whether that happens in this case (by amendment) or in fresh proceedings. But I could not, on the limited evidence presented, begin to resolve the merits. In any case, it is only distantly related to the abuse of process. The abuse consisted of not actively pursuing those claims that had been started. The abuse depended solely on BlackBerry’s reasons for acting as it did. The question raised by the “submarine pursuit” allegation is one of substance (is the contract terminated) not procedure. It is not appropriately resolved—indeed, not resolved at all—by striking out the proceedings, or refusing to do so. Prejudice to BlackBerry

105. The main prejudice to BlackBerry if the claim is struck out will consist of what Optiemus accepts (indeed, asserts) would be insuperable obstacles to its ability to proceed with what is, as Optiemus accepts, an arguable claim.

106. The causes of action on which BlackBerry currently relies accrued on various dates between 30 June 2018 (at the earliest) and 18 August 2019 (at the latest). It follows that all of them were well within the limitation period when the claim was issued, that all or most of them were (just) still in time on 19 July 2024 (when BlackBerry first issued an application to lift the default stay), but that all of them have now, prima facie, become time barred—the last having become so just a day after Optiemus issued its strike out application. BlackBerry asserts that it has other causes of action that accrued later and are not time barred, but these are not currently the subject of this claim. For Optiemus, Mr Friedman did not challenge the proposition that the claim, if struck out, would be lost for good. Indeed, he submitted that that would be so quite apart from limitation, since the repeated pursuit of a claim struck out for abuse of process may also be an abuse of process.

107. BlackBerry therefore contends that it would be seriously prejudicial to it to strike out the claim. If it had waited until July 2024 to bring the claim, its delay would have been no defence, at least to most of the claim. Moreover, such limited prejudice as has been caused would have been no answer. Although the expiry of the limitation period is not a pre-requisite for the Grovit jurisdiction, to strike out an arguable claim in those circumstances would, it submits, be disproportionate. Optiemus, in contrast, says that reliance on limitation is misplaced: one of the objections to issuing and then delaying the resolution of a claim is that it preserves the limitation period when the litigant has no present intention of pursuing the claim at all, and that makes it all the more appropriate for it to be struck out, to avoid the claimant retaining an illegitimate advantage by abuse of process.

108. This is prejudice that I should not disregard. Optiemus is right that a claim may be struck out even though the limitation period has not passed. But it is relevant that striking out the claim will prevent determination of an arguable claim. And it is relevant that this was not originally a stale claim, started as the limitation sun set, but one that was promptly started and whose revival attempt occurred while it remained (albeit, just) a claim for which proceedings could have been commenced. The effect on the court and the just determination of the dispute

109. The delay will mean that the court has to determine what is now a far staler claim than it would have been if vigorously pursued. Although there does not appear to me to be any specific loss of relevant evidence, it is always more difficult and more time-consuming to reach a fair decision when memories and documents are stale than it would have been when they were fresh. On the other hand, there is no reason to think that a fair decision is not possible. The case, although stale in comparison to the time it was begun, is barely past the statutory limitation period. No clearly identifiable specific harm has been done to critical documentary evidence or testimony by the delay. The case has not, at any of its earlier stages, consumed much court time and resource.

110. However, even if the existing claim is struck out, BlackBerry has further claims (not yet part of the action, and not time barred) which it wishes to pursue, and which will raise the same or similar issues. So striking out the existing claim form would not (or would not necessarily) significantly reduce the burden on the court. My assessment

111. Although BlackBerry’s decision not to proceed with the claim from September 2020 until July 2024 was an abuse of process, I consider that in all the circumstances of this case striking out the claim is not the appropriate or just response. By a narrow margin, I consider that striking out the claim would be disproportionate, and would not best advance the overriding objective. The key factors in this decision are as follows: a) The delay has not caused specific identifiable prejudice to Optiemus, other than in respect of interest, which can be financially estimated and adequately corrected for if interest is awarded or by a condition I discuss below. I have not lost sight of the fact that general non-specific prejudice will have been caused, and have taken that into account, alive to the risk delay often does its damage drop by drop. But the damage done by the time that has passed is limited in a case which is likely to depend mostly on documents passing between the parties, and I have no doubt that the case remains capable of fair decision. b) Striking out the claim would cause specific, and substantial, prejudice to BlackBerry, which would be deprived of the ability to pursue admittedly arguable claims for sums exceeding USD 6 million. c) I have had firmly in mind the stress the cases consistently lay on diligent pursuit of litigation; the significance of sanctions in deterring abuse; and the fact that the overriding objective is concerned not just with fair trial but with the enforcement of the rules. But the abuse that I have identified (abuse though it is) was not of the most serious kind. This was not “warehousing” in the sense of the bulk commencement of large numbers of claims, followed by strategic selection of those that turned out to be most valuable: BlackBerry began a single, and arguable, claim with every intention of pursuing it; it did not abandon the claim, although it neither pursued it nor took systematic steps to address the delay or monitor the position. Although BlackBerry’s decision was deliberate, it was not intended to prejudice Optiemus, did not involve any breach of any specific rule, and was not in bad faith. d) The delay was prolonged. That is somewhat mitigated by Covid-19. Although I have not accepted that the problems with service that the pandemic caused can be an explanation for the delay after September 2020 or thereabouts, the original decision to suspend activity in March 2020 was justifiable, and some allowance (by way of mitigation, rather than justification) can and should be made for that and for the confusion caused by the disruption of 2020–21. Some margin of appreciation should be allowed for BlackBerry considering, in mid-2020 that Optiemus’s financial position needed thought, albeit that is objectively insufficient to justify most of the very long delay that occurred. e) If BlackBerry had wished to do so it could have discontinued the proceedings in 2020 (CPR 38.3), and that had it done so it would not have required the court’s permission to bring the claim afresh, because under CPR 38.7 such permission is not required if the claimant discontinues before a defence is filed. Its failure to do so cannot be explained as an attempt to avoid the costs consequences of discontinuance, since it is unlikely that Optiemus would have had any significant claim for costs. If BlackBerry had discontinued, it would have been free—in July 2024—to bring its claims, most or all of which would not at that point have been time barred. BlackBerry did not, therefore, need to make an application to the court for a stay: it could have disengaged and re-engaged by its own unilateral act, within the rules. This, too, affects the seriousness of the abuse. f) When considering proportionality, it is legitimate to bear in mind that the obligation to advance proceedings lies on both parties, and that Optiemus itself did nothing at all in the period from March 2020 onwards to advance them; it was in default throughout this period (if it wished to contest the proceedings) by not serving a defence; it did not contact BlackBerry to discover its intentions. Its approach was one of complete disengagement. These were not the actions of a vulnerable individual defendant, but of a publicly listed company equipped with a legal department and well capable of looking after its interests, which presumably thought that those interests were best served by preserving radio silence. When the case was revived, and with the benefit of expert legal guidance, Optiemus’s first reaction was not loud protest about that, but to engage with the merits, and it did not issue a strike out application until many months of correspondence had passed. g) As a subsidiary factor, BlackBerry has other claims which it has never brought, and which are not time barred. Those are claims that it is difficult to see (subject to any argument on the substance about abandonment) it could not pursue, and will raise many of the same questions as the existing claims. In some respects, it might be thought, it is in the interests of all parties including Optiemus that they should be tried as part of this claim, because in so far as Optiemus’s response is to raise a counterclaim which might now itself be time barred if BlackBerry brought those claims as free-standing ones, that avoids any risk that BlackBerry might maintain that Optiemus cannot rely on its counterclaim defensively. h) There are steps that the court can take, short of strike out, to address what has occurred. Those steps include the condition that I will consider imposing in relation to interest (see below); they may include the order for costs made on these applications; they include the way the court approaches disclosure, particularly of the WatchDox documents; they may include the scope of disclosure for Optiemus; and they will include the way that the trial judge approaches any submissions about adverse inferences to be drawn from absent witnesses or missing documents.

112. Overall therefore, taking those factors into account, I think it would be inappropriate, and inconsistent with the overriding objective, to exercise my discretion to strike the claim form out, despite the abuse of process that BlackBerry was responsible for. That does not mean that I shall not consider what steps I may take, both as to costs and (as set out below) as to conditions that I may require if the stay is to be lifted. Application of the law: Automatic stay

113. For the reasons given above, the automatic stay was imposed, and that BlackBerry’s application to lift it should be analysed under the Denton framework.

114. As to the seriousness, the delay was serious, covering a period of just over four years (from March 2020 to July 2024). It was also significant because it risked causing prejudice, and because it resulted from BlackBerry’s deliberate decision, which was an abuse of process.

115. As to the reasons, there were good reasons for the delay until August 2020, but no procedurally good reason thereafter, though the reason was not in bad faith even though it was procedurally unacceptable.

116. As to the overall circumstances, I reach the same conclusions as I reach in relation to abuse of process, and for the same reasons. It would be a disproportionate response, inconsistent with the overriding objective, to deprive BlackBerry of the opportunity to advance a properly arguable claim, when the delay has not caused specific prejudice that cannot be corrected, the claim can still be fairly tried, and when the conduct for which sanctions are imposed was not that of BlackBerry alone.

117. I could, however, specifically address the prejudice (which BlackBerry agrees may result) from the delay in terms of interest. I should like to hear submissions on whether an appropriate condition would require BlackBerry to undertake not to seek interest for, say, the period from September 2020 to July 2024. As I did not hear argument on that point during the hearing, however, I prefer not to express any view on the point in this judgment. Amendment

118. BlackBerry wishes to amend the particulars of claim to add sums alleged to have fallen due after the claim form was issued. Since I have neither struck out the claim, nor refused to lift the stay, that application needs to be decided. Optiemus opposes those amendments on two grounds: that they are late, and that they would be prejudicial because they would constitute the “submarine pursuit”.

119. I do not agree with either point. “Lateness”, in the context of amendment is a relative matter, and largely relative to the point the proceedings have reached. Although always a factor, lateness is most likely to matter where the timing will disrupt proceedings (for instance by requiring disclosure to be reconsidered, new witnesses proofed, or a trial adjourned). The amendments in this case, coming as they do before a defence has been served, are not of that sort at all. They are issues that have arisen only since the claim form was issued, and at a time when not even a trickle of water has flowed under the bridge. Their introduction will leave Optiemus in no way worse off than if the claim form had been issued with them included in the first place.

120. As to the second point, I do not consider that there is relevant prejudice. The fact that an amendment raises an arguable claim is not relevant prejudice, although defendants would prefer to avoid such claims. The argument that BlackBerry’s conduct—not just in these proceedings but in other matters such as not corresponding with Optiemus, raising timely invoices, or attempting to offer any further services, or in any other respect—led Optiemus to believe that the contract was terminated, and that this in turn gives rise either to a contractual termination or estoppel, is an argument that Optiemus be able to make if the amendments are made. It will form part of the defence, and can fairly be considered by the trial judge on its merits.

121. For those reasons, I will give permission for the amendments to be made. Conclusion

122. For the reasons given above, I shall (a) dismiss Optiemus’s application to strike the claim out, (b) grant BlackBerry’s application to lift the automatic stay (subject to conditions that I will consider), and (c) grant BlackBerry permission to amend. I shall hear counsel on costs, in relation to which I note that although a bare account of the respective outcomes of the application suggests that BlackBerry is the successful party, the background to the application may justify some departure from the ordinary rule that costs follow the event.