Denning Sotomayor Ltd v Western Avenue Properties Ltd & Anor [2025] EWHC 1590 (KB) (25 June 2025)

Denning Sotomayor Ltd v Western Avenue Properties Ltd & Anor [2025] EWHC 1590 (KB) (25 June 2025)

The Master's decision to strike out the counterclaim for abuse of process and want of prosecution was correct. The Appellant's conduct amounted to warehousing the counterclaim with no real intention to pursue it until the claim was struck out. The Master properly applied the relevant legal principles, considered the conduct of both parties, and was entitled to infer prejudice from the scale and nature of the delay. There was no error of law or principle, nor was the exercise of discretion plainly wrong.

Citation
[2025] EWHC 1590 (KB)
Parties
Appellant / Second Defendant: Denning Sotomayor Limited; Respondent / Claimant: Western Avenue Properties Limited; Respondent / Claimant: Kalpesh Patel
Jurisdiction
England and Wales
Judgment Date
25 June 2025
Procedural Posture
Civil Appeal / Appeal From Order Striking Out Counterclaim
Outcome
Appeal dismissed
Legal Topics
Abuse of Process, Delay in Litigation, Striking Out, Counterclaim, Judicial Discretion
Civil Procedure Abuse of Process Delay in Litigation Striking Out Counterclaim Judicial Discretion

Case Brief

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Parties

Denning Sotomayor Limited

Appellant / Second Defendant

Western Avenue Properties Limited

Respondent / Claimant

Kalpesh Patel

Respondent / Claimant

Procedural Posture

Civil Appeal / Appeal From Order Striking Out Counterclaim

Legal Issues

  1. 1 Whether the Master's decision to strike out the counterclaim for abuse of process and want of prosecution was wrong or unjust
  2. 2 Whether the Master erred in treating the parties' conduct as equivalent (approbation and reprobation)
  3. 3 Whether the Master failed to consider the wider circumstances and mutual delay

Ratio Decidendi

The Master's decision to strike out the counterclaim for abuse of process and want of prosecution was correct. The Appellant's conduct amounted to warehousing the counterclaim with no real intention to pursue it until the claim was struck out. The Master properly applied the relevant legal principles, considered the conduct of both parties, and was entitled to infer prejudice from the scale and nature of the delay. There was no error of law or principle, nor was the exercise of discretion plainly wrong.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed; order of Master Davison striking out the counterclaim upheld