When does "warehousing" tip into abuse? Cooke, Young & Keidan LLP v Davis

Delay in prosecuting proceedings is not, without more, an abuse of process, but it could be if a party has deliberately parked (or ‘warehoused’) a claim, intending to revive it at a later point.

In Cooke, Young & Keidan LLP v Davis [2026] EWHC 2093 (Ch), HHJ Johns KC offers practical guidance on what an applicant must establish if it wants the court to strike out a claim on the basis of delay, and on how the court is to weigh prolonged inactivity where responsibility for the delay is shared between the parties and the court.
 

Background

In July 2021, Cooke, Young & Keidan LLP (“CYK”) sued its former clients, Mr Laurence Davis and Mr John Baker, for unpaid fees of just under £200,000. The defendants counterclaimed for professional negligence, valued at around £20 million, arising out of CYK’s conduct of earlier litigation.

After the exchange of pleadings, there followed a series of delays. In December 2022, the defendants’ solicitors provided dates to avoid for a costs and case management conference (“CCMC”), but CYK’s solicitors never passed them to the court and no CCMC was fixed. Mr Baker was subsequently declared bankrupt on 5 June 2023, and both sides appear to have treated the bankruptcy as an obstacle to progressing the counterclaim. On 10 December 2024, CYK's solicitors indicated they anticipated instructions to seek a CCMC listing "without further recourse" to the defendants, but no request was made until 31 March 2025. A CCMC was eventually fixed for 31 July 2025, but was then adjourned by consent after CYK issued a strike-out application.

In June 2026, HHJ Johns KC heard the strike-out application and other applications. Mr Baker’s counterclaim was struck out as a result of his bankruptcy (the result of which was, in effect, that Mr Baker’s claim against CYK no longer belonged to him). Of particular interest, however, is CYK’s application to strike out Mr Davis’s counterclaim on the basis of alleged warehousing (the “Warehousing Application”).
  

Warehousing: the legal principles

“Warehousing” refers to the deliberate parking of proceedings – litigation commenced or maintained with no intention of bringing it to a conclusion. Whilst there may be legitimate reasons to do this, such conduct may, in certain circumstances, amount to an abuse of process and expose the claim to strike-out.

HHJ Johns KC took Arnold LJ’s guidance in Asturian Foundation v Alibrahim [2020] EWCA Civ 32 (“Alibrahim”) as his starting point. Delay alone, however inordinate or inexcusable, is not in and of itself an abuse. A claimant’s unilateral decision to pause its claim, intending to revive it later, "may well" cross that line but does not inevitably do so. The court must weigh the reason for the pause, its objective strength, and the length of the delay.

The analysis proceeds in two stages: first, whether the conduct was abusive; and second, if so, whether the court should exercise its discretion to strike out.

Against that backdrop, HHJ Johns KC turned to two more specific disputes about how those principles apply.
 

1. Is direct evidence of a decision not to pursue the proceedings needed?

The defendants relied on Grenda Investments Ltd v Barton [2017] EWHC 2371 (Comm), in which Picken J required the intention not to pursue the proceedings to be "supported by evidence". CYK, on the other hand, invoked Alfozan v Quastel Midgen LLP [2022] EWHC 66 (Comm), where HHJ Pearce had inferred the requisite intention from a lengthy, unexplained period of inactivity.

HHJ Johns KC held that the correct position lies between these poles. The court must be satisfied on the evidence that there was, for a time, an intention not to pursue the proceedings; inactivity alone will not do. That intention may, however, be inferred from the surrounding circumstances, including the absence of any explanation for the delay. Direct evidence is not, therefore, necessarily required: to insist on it would unduly narrow this category of abuse, given that such applications are typically decided without disclosure and inactive claimants tend to say little in response.
 

2. Must the conduct "bring the administration of justice into disrepute"?

Lord Diplock's decision in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (“Hunter”) casts abuse of process as a misuse of the court's procedure that is either manifestly unfair or otherwise brings the administration of justice into disrepute. The defendants contended that this imposes a free-standing requirement in every category of abuse; CYK contended that abuse based on warehousing can be made out without it.

HHJ Johns KC again steered a middle course, finding that Lord Diplock's statement describes the wider doctrine of abuse of process, beneath which sit established categories, each with its own working principles. Those principles guide the court to the ultimate question – whether the conduct brings the administration of justice into disrepute – but that concept is not generally a separate, free-standing requirement to establish abuse of process.

Referring as well to the Supreme Court’s decision in Mueen-Uddin v Secretary of State for the Home Department [2024] UKSC 1, HHJ Johns KC held that warehousing is not a stand-alone doctrine sitting outside Lord Diplock’s umbrella, but rather one form of abuse within it.
 

Application to the facts

Having considered the legal principles, HHJ Johns KC turned to the substance of CYK’s Warehousing Application concerning Mr Davis's counterclaim. The Judge found no abuse of process and, in any event, stated that he would have exercised his discretion against strike-out. Three features drove the result:

• Shared responsibility for the delay: the fault was not one-sided. Much of the inactivity lay principally with CYK and the court. For example, dates to avoid were supplied in December 2022 but never passed on to the court by CYK and, in the final period, CYK indicated it would seek a listing "without further recourse" to the defendants, yet did not request one for several months.

• A credible explanation for the middle period: Mr Baker's supervening bankruptcy had been treated by both sides as an obstacle to progressing the counterclaim, compounded by genuine confusion about the effect of his discharge from bankruptcy. There was further uncertainty caused by the fact that the Official Receiver (his trustee in bankruptcy) had done nothing to pursue the counterclaim and it was not clear to the parties what impact this had on the claim.

• Delay by the claimant: the Warehousing Application was issued late, almost a year after CYK had said it would push the case forward and around four months after the CCMC was adjourned to allow other applications to be heard. In those circumstances, the Judge considered that it would have been particularly unjust to strike out a potentially valuable counterclaim while preserving CYK's own claim.

• A parallel argument under CPR 3.4(2)(c), based on the defendants’ failure to notify CYK of the bankruptcy, also failed: CYK had itself sat on the issue for almost a year, and strike-out would have been disproportionate in those circumstances.
   

Key takeaways

CYK v Davis is a useful reminder of the principles around warehousing and abuse of process more generally, and of the risks involved in undue delays in the conduct of litigation. Amongst the key learning points are:

1. The mere fact of delay is not enough to obtain strike out. It seems likely that there can and will be cases where delay to the progression of proceedings can be explained. For example, a court may be reluctant to find abuse of process where proceedings are issued in haste to avoid the expiry of a limitation period but then progressed slowly, particularly as a result of funding issues, for example. That said, the safer approach where there is a legitimate reason for delay would probably be to seek a stay.

2. Establishing that warehousing has occurred (and that a claim should be struck out because of it) requires evidence of an intentional delay to proceedings without good reason. Alibrahim remains the touchstone: a defendant must persuade the court, on the evidence, that the claimant positively decided to put the proceedings on hold for a substantial period. The court will not, however, demand a smoking gun – intention can where appropriate be inferred from the surrounding circumstances, including the absence of any credible alternative explanation that the claimant could reasonably be expected to give.

3. Fault is a two-way street. Where responsibility for delay is shared between the parties and the court, it is much harder to characterise one party’s conduct as abusive. Claimants are still expected to drive their claims forward, but a defendant who sits on its own hands may find it difficult to persuade the court to translate its opponent's inertia into strike-out.

4. Strike-out of a counterclaim alone is likely to be a hard sell. The judgment flags that no reported decision has struck out a counterclaim for warehousing while leaving the underlying claim to stand. That is perhaps not at all surprising in circumstances where the claim and counterclaim sit together procedurally, such that it feels instinctively odd for a claimant to suggest there had been some undue delay to the counterclaim but not the claim itself. Put another way, both sides must keep litigation moving: a claimant should not let a case drift, but equally a defendant cannot stand by and then seek to convert that delay into an abuse argument.

5. Bring any strike-out application promptly. A defendant that waits many months after both the claimant belatedly resumes activity and the defendant itself becomes aware of the alleged abuse should expect the court to weigh that delay heavily in the discretionary balance.