Court rejects automatic strike-out for abusive litigation delay

The Court of Appeal has dismissed Optiemus’s attempt to strike out BlackBerry’s royalty claimNationalarchives after almost four years of abusive inactivity. In its 31 July 2026 judgment, the court rejected a rule requiring claimants to show compelling reasons to avoid strike-out once this form of abuse is establishedNationalarchives. The response must instead reflect all the circumstances, proportionality and the overriding objective.

The dispute concerns software and services supplied under a handset licensing agreement. BlackBerry issued proceedings in August 2019 but deliberately left the claim inactive from September 2020 until July 2024Nationalarchives. The first-instance judge found that its concerns about Optiemus’s ability to satisfy a judgment did not objectively justify that delay. Nevertheless, he allowed the claim to continue, lifted an automatic stay and imposed conditions. The appeal against that outcome failed.Nationalarchives

The court endorsed a two-stage approach. The first stage asks whether the claimant deliberately decided not to pursue the claim. If so, the court examines the delay that decision caused and the reasons for it. Those reasons must objectively justify the length of the delay. Mere delay, however prolonged or inexcusable, does not itself establish abuse.Nationalarchives A unilateral pause pending a future development may be abusive, but is not automatically so; the strength of the reason must be assessed against the length of the pause.

If abuse is established, the court then decides the appropriate response. It must weigh the seriousness of the conduct, its effect on both parties and court resources, and available alternatives to strike-out. Identifiable prejudice to the defendant is not essential, and its absence is not decisive. Defendants’ own failure to engage can also matter at this second stage. The court disapproved the competing approach in Watford Control Instruments Ltd v Brown and endorsed the just and proportionate assessment adopted in Lloyd v Hayward.

For BlackBerry, continuation came with a financial consequence: it must undertake not to seek interest from 1 September 2020 to 18 July 2024 on the sums in its original claimNationalarchives and pay 30% of Optiemus’s costs of the stay and strike-out applicationsNationalarchives. The interest restriction does not extend to additional fees introduced by amendment; Optiemus can still ask the trial judge to adjust interest on those sums because they were claimed late.

The judgment leaves the substantive royalty dispute to be resolved and stresses that efficient, expeditious litigation remains required. Claimants contemplating a pause should seek the defendant’s consent or apply for a stay or directions, rather than assume that later revival will be permitted.

The legal basis is the Civil Procedure Rules 1998, particularly rules 1.1–1.3 and 3.4(2)(b), as applied in Blackberry Limited v Optiemus Infracom Limited [2026] EWCA Civ 1004Nationalarchives.