The Dekagram: 10th August 2026

This week Kerry Nicholson examines the position when a claimant fails to expedite proceedings – a reminder, perhaps, for some of our more senior readers of the halcyon days when those acting for defendants would joyously strike out proceedings left, right and centre for want of prosecution. Those were the days! (Albeit not so fondly remembered by those acting for claimants, or, indeed by claimants themselves.) Meanwhile Thomas Yarrow considers another cross border sanctions case.

Court of Appeal in BlackBerry v Optiemus confirms that delay is not a special category of abuse when considering a strike out application

The Court of Appeal has given welcome clarity on what happens when a claimant lets a claim sit dormant for years. In BlackBerry Ltd v Optiemus Infracom Ltd [2026] EWCA Civ 1004, the court held that even where a claimant has abused the court’s process by deliberately failing to advance their claim (referred to as “Grovit abuse” following the case of Grovit v Doctor [1997] 1 WLR 640), there is no special test requiring “compelling reasons” to escape strike-out. The court simply exercises its discretion by reference to the overriding objective and proportionality, making whatever order is just on the facts. For anyone running or defending litigation subject to delay, the case is essential reading on how the courts approach so-called Grovit abuse under the CPR.

Background

BlackBerry sued Optiemus, an Indian handset maker, for unpaid sums under a 2017 licensing contract with an English jurisdiction clause. Optiemus had paid $1m in August 2018 and nothing further, leaving royalty claims that ultimately exceeded $6m.

BlackBerry issued in the Commercial Court in August 2019 and served in India under the Hague Service Convention in December 2019. Optiemus never acknowledged service or filed a defence, and so an automatic stay took effect under CPR 15.11 in July 2020. BlackBerry then did nothing for roughly four years — applying only in July 2024 to lift the stay and for summary judgment. Optiemus applied to strike out the claim as an abuse of process under CPR 3.4(2)(b).

The decision at first instance

The judge at first instance found that BlackBerry had deliberately decided in 2020 not to pursue the claim, causing a delay of just over four years. Covid-19 made Hague Convention service impossible between March and August 2020, which justified the delay in that window; but thereafter BlackBerry’s only reason was a vague concern that Optiemus might not have assets to meet a judgment and so it did not want to incur the expense of applying for summary judgment, which would have required an application to be served under the Hague Convention. That was not strong enough to justify almost four years of inactivity, so the conduct was an abuse of process.

Crucially, the judge did not treat strike-out as automatic. Rejecting any “compelling reasons” requirement, he held that the discretionary stage turns on proportionality and the overriding objective. “By a narrow margin”, strike-out was disproportionate: there was no specific prejudice beyond interest, a fair trial remained possible in a largely documentary case, and strike-out would cost BlackBerry arguable claims worth over $6m. He lifted the stay instead, on conditions that BlackBerry forgo interest for the delay period on the original sums and pay 30% of Optiemus’s costs.

The issue on appeal

Optiemus ran seven grounds of appeal, but the real battleground was a single point: once Grovit abuse is established, must the claimant show “compelling reasons” why the claim should not be struck out? Optiemus relied on Board of Governors of the National Heart and Chest Hospital v Chettle (1998) 30 HLR 618 (“Chettle”) and on Watford Control Instruments Ltd v Brown [2024] EWHC 1125 (Ch) (“Watford”), which had treated Chettle as establishing such a rule. BlackBerry argued this misread Chettle, a pre-CPR authority, and that the right approach was that of HHJ Keyser KC in Lloyd v Hayward [2024] EWHC 2033 (Ch) (“Lloyd”).

The Court of Appeal’s decision

Giving the lead judgment, Miles LJ dismissed the appeal in full. He held that the passage in Chettle could not be read as laying down a legal principle; Aldous LJ had simply been applying Grovit to the facts before him and addressing an argument that the claimant could bring a fresh action, and Optiemus had “inadmissibly sought to extract a phrase used to express a conclusion and turn it into a rule of law“. Nor did Lord Woolf’s observation in Grovit that strike-out would “frequently” follow amount to a workable legal yardstick, since “frequently” does not mean almost always or even usually.

The court emphasised that the CPR effected a “culture change”; authorities under the former rules are generally no longer relevant, and the court must concentrate on the intrinsic justice of the particular case in light of the overriding objective. Following Alibrahim v Asturion Fondation [2020] EWCA Civ 32, [2020] 1 WLR 32 (Practice Note) (“Asturion”), the analysis proceeds in two stages: first, whether the conduct was abusive (an evaluative question focused on the claimant’s intent and the objective strength of its reasons against the length of delay); and second, whether the court should exercise its discretion to strike out, applying proportionality and the full range of case-management responses.

The court gave several reasons of principle for rejecting a compelling-reasons test:

• it would be an incongruous “hard-edged” overlay on the CPR’s broad discretion (at [100]);
• such a test would not recognise that there was a spectrum of Grovit abuse cases, some more and some less flagrant (101]);

• it would be unprincipled and arbitrary to have Grovit strike out applications on a different footing from other strike out applications (at [102]);
• it would place Grovit abuse in an unprincipled “insulated silo,” treating it differently from breaches of rules or orders under CPR 3.4(2)(c) and from other, possibly more egregious, forms of abuse (at [103]);
• A compelling-reasons test would also breed uncertainty, as the phrase is not a term of art (at 108]).

On the remaining grounds, the court found no error in the judge’s evaluative and factual conclusions, including his findings on witness prejudice, accounting provisions and interest. It accepted that the judge was entitled to take into account the conduct of both parties at the second stage, noting that “it is no longer open to a defendant to allow sleeping dogs to lie” (at [108]). Recognising that the decision was borderline and that another judge might have struck the claim out, the court reaffirmed that discretionary case-management decisions are primarily for the first-instance judge and will not be disturbed absent an error of principle.

Takeaways

The judgment resolves the split between Lloyd and Watford in favour of Lloyd: there is no “compelling reasons” gateway to clear once Grovit abuse is found. The seriousness of the abuse and the length and justification of any delay all matter, but none is decisive; they feed into a broad, proportionality-driven discretion that can be met by conditions as to interest and costs rather than strike-out.

The practical messages are clear. If you act for claimants, parking a claim to wait for better enforcement prospects is a dangerous game: it may be an abuse even where the defendant suffers no specific prejudice, and it exposes your client to costs and interest sanctions of the kind imposed here. If you act for defendants, sitting back and saying nothing is no longer a safe tactic: the defendant’s own inactivity counts against it when the court weighs how to respond. Either way, the safer course when a claim needs to be paused is to seek the other side’s consent or apply to the court for a stay or directions, rather than to disengage unilaterally.

About the Author

Kerry Nicholson takes instructions across all of chambers’ core areas. Prior to joining Deka chambers Kerry worked for the Government Legal Department working across a variety of departments in both litigation and advisory roles. She is now enjoys working within the team on travel related and other claims.

The Extraterritorial Reach of the ECHR Revisited: Sanctions and Jurisdiction in Dana Astra

In an earlier piece I perambulated the boundaries of jurisdictional scope under Article 1 ECHR – the obligation on contracting states to secure the Convention rights “to everyone within their jurisdiction” – and the narrow, exceptional categories of extraterritorial jurisdiction mapped in Al-Skeini v United Kingdom. The Supreme Court has now refused permission to appeal this week in a case argued on the same frontier: Dana Astra IOOO v Secretary of State for Foreign, Commonwealth and Development Affairs [2026] EWCA Civ 160, in which the Appellants sought to stretch Article 1 of the Convention from a new angle: focusing not on soldiers or diplomatic agents acting on foreign soil, but the infringement of rights caused by the international reach of economic sanctions.

Background

DANA is one of the biggest developers in Belarus, best known for the Minsk World project – a US$3.5 billion flagship development on state-owned land in central Minsk, blessed by a presidential decree. It was designated by the Secretary of State under the Republic of Belarus (Sanctions) (EU Exit) Regulations 2019 on two footings: as a sponsor of the Belarusian National Olympic Committee, and as a company obtaining a benefit from the Government of Belarus by carrying on business in the strategically significant construction sector. DANA brought a challenge to the designation decision under section 38 of the Sanctions and Anti-Money Laundering Act 2018, contending that the designation was a disproportionate interference with its Article 1 Protocol 1 rights (the right to peaceful enjoyment of possessions) and was, besides, irrational. In the High Court, Saini J dismissed the claim, holding that the UK’s jurisdiction was not engaged (DANA had no presence in the UK), but even if it were, the decision was not a disproportionate means of achieving a legitimate aim, and was not otherwise irrational; Dingemans LJ granted permission to appeal to the Court of Appeal (largely because at that time the Supreme Court had not yet handed down its judgment addressing similar proportionality arguments in the case of Shvidler [2025] UKSC 30); and, on 26 February 2026, the Court of Appeal dismissed the appeal.

The threshold question for jurisdiction was whether the Secretary of State, by the very act of designating DANA, brought it “within the jurisdiction” of the United Kingdom. This was no small hurdle, for DANA had no presence, no business and no assets here at all. Reaffirming that jurisdiction is primarily territorial, save for narrowly defined circumstances, the court looked again at the recent Grand Chamber authorities of MN v Belgium and Agostinho v Portugal. Article 1, as Agostinho insists, “requires control over the person himself or herself rather than the person’s interests as such”. A decision taken comfortably within the jurisdiction that happens to have painful consequences for someone outside it does not, without more, drag that person within the Convention’s embrace. Were it otherwise, as Bean LJ tartly observed, any company anywhere in the world nursing an ambition to trade in the UK would be “within the jurisdiction” – a proposition that would swell Article 1 beyond all recognition.

DANA’s two essential arguments trying to squeeze in under the curtain were rejected. The first relied on the “Swiss cases”, Nada and Al Dulimi, as authority for a new sanctions-specific exception to be added to the Al-Skeini list. But those cases, the court held, were about the attribution of UN measures to an implementing state, not about the reach of jurisdiction, which was a point simply never argued in Strasbourg. The second, and more creative proposition, was that DANA’s “goodwill” in the UK, where they might wish to commence commercial activity, was a possession protected by A1P1. This, however, foundered because A1P1 was said to protect existing possessions, not the fond hope of a business one might one day get around to starting.

The Court’s decision on jurisdiction defeated the appeal in any event, but for good measure the Court also went on to dismiss summarily the arguments on proportionality and irrationality.

The Supreme Court has now held that there is no arguable error of law in the Court of Appeal’s decision and DANA are left out in the cold. The case marks yet another judicially deferential moment in sanctions litigation, with the Courts declining to stretch the bounds of Article 1 beyond the more obviously physical (military/consular) acts and into the more ethereal realm of economics. Whether it’s a final line, however, I am not so sure. One could conceive of more liminal facts where the effects of decisions made in the UK had a more striking impact overseas. Should the law recognise a conceptual difference between 1s and 0s beamed along electromagnetic waves and a soldier exercising authority by physical presence, if on a particular set of facts the effects are identical in each case? Time will tell; as the political discourse on UK participation so often highlights, the ECHR is a living instrument.

About the Author

Before coming to the Bar, Thomas Yarrow worked as a Civil Servant, including as a policy advisor at the Brexit Department. His former experience gives him an encyclopaedic knowledge of legislation, treaties and international conventions in the field of Private International Law, which he has applied to his cross-border practice, building a reputation as a go-to barrister for complex questions of jurisdiction and applicable law. He wrote the relevant chapter on such in the latest edition of the leading practitioner textbook, Saggerson on Travel Law and Litigation. His travel practice spans cross-border personal injury, commercial disputes and consumer protection. He is listed in the Legal 500 as a Rising Star in the administrative law and human rights and personal injury categories, and as a leading junior in the law relating to sanctions. He is described by the Legal 500 as being ‘very sharp, with fantastic attention to detail’, and with ‘excellent knowledge of public law and human rights, with experience in a wide range of areas, from sanctions to cutting edge issues such as state use of facial recognition’.