Commercial Court finds abuse of process but allows long-stalled claim to proceed
A judge has declined to strike out an international commercial claim described as “comatose”, despite finding that the claimant’s conduct amounted to an abuse of process.
The ruling was given by Paul Stanley KC, sitting as a deputy High Court judge, in proceedings brought by BlackBerry Limited against its South Asia licensee Optiemus Infracom. The claim, valued at $6.49 million, was issued in August 2019 and concerns allegedly unpaid licensing fees.
The case is being heard in the Commercial Court and has made little progress since being automatically stayed in 2020 under the Civil Procedure Rules. The stay followed a dispute over whether the claim had been properly served in India, with proceedings further disrupted by the COVID-19 pandemic.
Optiemus applied to strike out the claim, arguing that BlackBerry had effectively allowed it to lie dormant for years. The Indian telecom company accused BlackBerry of engaging in what it described as a “submarine pursuit”, giving the impression that the litigation had fallen away and that no further steps would be taken.
Optiemus told the court that almost all employees with knowledge of the underlying contract had since left the business. It also said that one key individual connected to the matter had died in 2021, increasing the prejudice caused by the prolonged delay.
In July 2024, BlackBerry applied to lift the automatic stay and revive the proceedings. That application was opposed by Optiemus, which argued that the long period of inactivity justified striking out the claim entirely.
In his judgment, Stanley KC found that the lack of progress between 2020 and 2024 was the result of a deliberate decision by BlackBerry not to advance the case. He said the claim was not forgotten or overlooked, but instead left inactive by choice. This unilateral decision to do nothing, he concluded, amounted to an abuse of process.
However, the judge went on to decide that striking out the claim would be disproportionate. He found that BlackBerry’s conduct was not intended to prejudice Optiemus, did not involve a breach of any specific procedural rule and was not carried out in bad faith.
Stanley KC also observed that responsibility for progressing litigation rests on both parties. He noted that Optiemus itself had taken no steps from March 2020 onwards to move the proceedings forward.
By a narrow margin, the court therefore refused to strike out the claim, allowing it to continue despite the prolonged delay and the finding of abuse.