This guide is written for solicitors, trainees and law students in England and Wales.
Warehousing claims is litigation shorthand for issuing or continuing proceedings with no present intention of taking them to a conclusion, and it can amount to an abuse of process justifying strike-out even where no limitation or procedural deadline has been missed. With the High Court’s decision in Cooke, Young & Keidan LLP v Davis [2026] EWHC 2093 (Ch) extending the analysis to counterclaims for the first time, this explainer sets out the doctrine, the two-stage test, and the practical steps that keep a claim off the warehouse shelf.
Who is this guide for?
This guide is for litigators on either side of a stalled claim: those deciding whether an opponent’s inactivity has crossed into abuse and a strike-out application is worth the costs risk, and those managing a claim that has drifted, whether through funding gaps, parallel negotiations or simple inattention, and who need to understand the exposure before an application lands. It also matters to firms pursuing their own fee claims, since CYK v Davis shows how a claimant’s delay can preserve the counterclaim against it.
Where does the warehousing doctrine come from?
The foundation is Grovit v Doctor [1997] 1 WLR 640, where the House of Lords held that commencing and continuing litigation with no intention to bring it to a conclusion is itself an abuse of the court’s process, capable of justifying strike-out without the need to show prejudice of the kind required for want-of-prosecution dismissals. Under the CPR the power sits in rule 3.4(2)(b), which allows a statement of case to be struck out where the proceedings are an abuse, alongside the court’s general case management powers in the Civil Procedure Rules.
How do the courts decide? The two-stage approach
The Court of Appeal structured the modern analysis in Asturion Fondation v Alibrahim [2020] EWCA Civ 32. The court asks two questions in sequence. First, is the conduct an abuse at all? In a warehousing case that means asking whether the claimant took a unilateral decision not to progress the proceedings for a substantial period, and why. Secondly, if abuse is established, should the court in its discretion strike the claim out? That second stage is a proportionality assessment, and strike-out remains a sanction of last resort. Abuse alone does not produce strike-out: the length of the delay, the reasons for it, any prejudice and the availability of lesser responses all feed the second stage.
| Authority | What it decides |
|---|---|
| Grovit v Doctor [1997] 1 WLR 640 | Maintaining proceedings with no intention of concluding them is an abuse of process in itself. |
| Asturion Fondation v Alibrahim [2020] EWCA Civ 32 | Two stages: was there a unilateral decision not to progress for a substantial period, and if so, is strike-out a proportionate response? |
| Cooke, Young & Keidan LLP v Davis [2026] EWHC 2093 (Ch) | First consideration of striking out a counterclaim alone; fault for the inactivity and the asymmetry of the remedy both weigh against strike-out. |
What does CYK v Davis add about counterclaims?
Three things. First, causation of the delay is examined before any inference of warehousing is drawn: the judge declined to infer a unilateral decision by the counterclaimant where the initial inactivity was principally the fault of the claimant firm and the court, which had between them let a case management conference go unfixed for years. Secondly, timing matters at the discretion stage, because an application made late, after the applicant itself sat on the file, starts a long way behind. Thirdly, asymmetry is a real objection: the judge observed that he had been shown no decided case in which a counterclaim only had been struck out for warehousing, and that it is difficult to call a counterclaimant’s conduct abusive, or a one-sided strike-out just, while the claimant’s own claim stands inactive beside it.
How do you keep a claim off the warehouse shelf?
- Record the reason for any pause in progress at the time, because the first Asturion question turns on why the claim stood still.
- Communicate stays and standstills rather than letting silence accumulate, since agreed inactivity is not unilateral inactivity.
- Chase the court when a listed step goes missing, and keep the correspondence: in CYK v Davis the unfixed hearing was laid principally at the claimant’s door.
- If an opponent’s claim is drifting, decide early whether to apply, because delay in applying counts against the applicant at the discretion stage.
- Where you act for a firm recovering fees, progress the claim with the same discipline as any other matter, particularly where a counterclaim dwarfs the fees at stake.
What are the common mistakes?
- Treating long delay as automatically abusive. The doctrine requires a unilateral decision not to progress, not mere slowness.
- Assuming abuse means strike-out. The second stage is discretionary and proportionality-driven, and lesser orders are always in play.
- Applying late. An application that follows the applicant’s own period of inactivity invites the answer it received in CYK v Davis.
- Forgetting the counterclaim asymmetry point when the target is a counterclaim and the claim would survive.
Sources
The primary sources are the judgment in Cooke, Young & Keidan LLP v Davis [2026] EWHC 2093 (Ch), Grovit v Doctor, Asturion Fondation v Alibrahim and CPR rule 3.4. Where the stalled claim involves a bankrupt party, read this alongside our companion checklist on what happens when a litigant goes bankrupt, which covers the vesting and sufficient-interest issues decided in the same judgment.
Last updated: 12 August 2026.