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In the case of  Morgan Sindall Construction and Infrastructure Ltd v Capita Property and Infrastructure (Structures) Ltd & Anor [2023] EWHC 166 (TCC) (27 January 2023), the Court considered an application by the Defendant to strike out a claim for “warehousing.” (Alleging that there was never any intention of pursuing it) It was a commercial case going though the business and property courts.

Interestingly the parties agreed to mediate and the Court criticised the applicant for mediating and then when the case didn’t settle, issuing the application to strike out.

The Court held that:

“More significantly, it is because of the delay on the part of the First Defendant in making this application. The action came to life again in December 2021. From then, although there was a contention that there was some further delay, it was clear that the Claimant was no longer warehousing the claim and that the Claimant was moving the matter forward. The First Defendant chose not to make an application to strike out in January 2022 or thereabouts. Instead, it took part in a tripartite mediation and waited until December 2022 to seek strike out. A party who alleges abuse of this kind must act promptly. Such a party cannot allow the action to continue and then some time later seek to strike out for this form of abuse. Here, the First Defendant’s explanation of that interval between the revival of the action and the strike out application was that it hoped or believed that matters would move more quickly once the action came back to life. That is not a persuasive explanation. It should and must have been apparent that with the best will in the world fixing a tripartite mediation in a matter of this kind would take some considerable time. I am driven to the conclusion that the reality is that the First Defendant kept the possibility of applying to strike out in reserve and only brought it into play when the mediation failed to resolve matters. A party who chooses to do that will not be given relief. This is not a matter of some form of estoppel but a matter of the court’s exercise of its discretion. The actions of a party seeking strike out are highly relevant as to whether to grant that remedy in the light of the overriding objective. A party who holds in reserve the option of applying for this form of strike out will not get relief if the consequence of its holding the option in reserve is to allow the action to continue and for substantive steps between the parties to take place over a period of some months.”

This decision seems to suggest that a party cannot delay making an application to strike out so as to hold a mediation. This seems to be a surprising decision but there is an inconsistency between mediating with a view to settling a claim and arguing that a claim should be struck out.