#19724 - 9. Bpc Civil Litigation 2023 2024 Strike Out, Summary Judgment And Sanctions - BPC Civil Litigation

• Where a rule, practice direction, or court order requires a party to do something within a specified time, and specifies the consequences of failure to comply, the time for doing so may not be extended. Otherwise, it can be extended by the court by written agreement between the parties for up to a maximum of 28 days.

• The sanction applies unless the party in default applies for and obtains relief from the sanction.

• Where the sanction is for costs, the party in default may only obtain relief by appealing against the order for costs.

Application for relief from sanctions:

• The sanction must actually be imposed.

• The court will consider all the circumstances of the case so as to enable it to deal justly with the application, including the need for litigation to be conducted efficiently and at a proportionate cost and to enforce compliance with rules, practice directions and orders.

  • Seriousness and significance;

  • Reason the default occurred; and

  • All the circumstances of the case.

• An application for relief must be supported by evidence.

• The court may strike out a statement of case if it appears to the court:

  • That the statement of case discloses no reasonable grounds for bringing or defending the claim;

    • These are cases which are incoherent and make no sense or a defence which is just a bare denial.

  • That the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

    • Using the litigation process for a purpose that is significantly different from its ordinary and proper use.

  • That there has been a failure to comply with a rule practice direction or court order.

• Where the court does this, it may make any consequential order it considers appropriate.

• Where the court has struck out the claimant’s statement of case and orders the claimant to pay costs, but before they pay those costs they start another claim arising out of the facts which are the same or substantially the same as the struck out claim, the court may, on application of the defendant, stay that other claim until the costs of the first claim have been paid.

• The application for strike out cannot be refused unless the court first hears oral arguments.

• Where the court strikes out the claimant’s statement of case and it considers that the claim is totally without merit it must record the fact and consider a civil restraint order.

• If a defendant applies to strike out all or part of the claim form or particulars of claim, that defendant need not file a defence before the hearing.

• Failure to comply with court orders in a multi-track case includes:

  • Failing to return a pre-trial checklist to the court by the date stipulated in the court’s directions timetable without first applying for an alteration of that date.

  • Failing to attend a case management conference on the date stipulated in the court’s directions timetable without first applying for an alteration of that date.

  • Failing to serve witness statement by the date stipulated in the court’s directions timetable without first applying for an alteration of that date.

  • Failing to serve an expert report by the date stipulated in the court’s directions timetable without first applying for an alteration of that date.

• A witness statement is not a statement of case.

• The procedure by which the court may decide a claim or a particular issue without a trial.

• The court may give a summary judgment against a claimant or defendant on the whole of the claim or on a particular issue if it considers that:

  • The claimant has no real prospect of succeeding on the claim or issue; or

  • The defendant has no real prospect of successfully defending the claim or issue; and

  • There is no other compelling reason why the case or issue should be disposed of at a trial.

Notes on this test:

• The court may give summary judgment against a claimant in any type of proceedings and may give summary judgment against a defendant in any type of proceedings except:

  • Proceedings for possession of residential permits against–

    • A mortgagor; or

    • A tenant or contract-holder or a person holding over after the end of the tenancy whose occupancy is protected within the meaning of the Rent Act 1977, the Housing Act 1988 or the Renting Homes (Wales) Act.

• The court must consider whether there is a realistic as opposed to fanciful prospect of success. A realistic claim is one that carries some degree and the court must not conduct a mini-trial.

• The burden of proof rests on the applicant to establish that there are grounds to believe that the respondent has no real prospect of success and that there is no other reason for trial.

• A claimant may be prevented from obtaining summary judgment in whole or in part, if the defendant can show that he intends to raise a set off or counterclaim which raises a triable issue. If the defendant raises a triable counterclaim which cannot be deployed as a set off, the court may grant a summary judgment to the claimant but with a stay of enforcement pending trial of the counterclaim.

• In proceedings on a dishonoured bill of exchange, or cheque or promissory note save in exceptional circumstances a defendant is not allowed to set up a set off or counterclaim and the claimant is entitled to judgment for the amount of their claim without a stay of execution.

Procedure:

• A claimant may not apply for summary judgment unless the defendant has filed an acknowledgment of service or a defence unless the court gives permission.

• If a party applies for summary judgment before a defendant has filed a defence, the defendant by or against whom the application is made need not file a defence before the hearing. Date runs from the date of service of the claimant’s particulars of claim.

• The claimant...