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#3740 - Strike Out - BPC Civil Litigation

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Strike out, Stays and Discontinuance

Strike out

When can an application be made to strike out a claim?

CPR r3.4(2): If the statement of case:

  1. Discloses no reasonable grounds for bringing or defending the claim;

  2. Is an abuse of process;

  3. Likely to obstruct the just disposal of proceedings;

OR

  1. there has been a failure to comply with a rule, PD or court order.
What can be struck out? Either part or the whole of a statement of case.
What is the procedure for bringing a strike out application?

  1. Application notice in accordance with Part 23;

  2. Notice may be served with evidence if it is required (facts may be self evident as to why the application is made).
When should an application be made? An application should be made as soon as it becomes apparent that it is desirable to make it. Usually this is following acknowledgement of service and allocation.
What is the general test when deciding whether to strike out the claim? Where it is plain and obvious that there is little point having a trial.
What does it mean ‘no reasonable grounds’?

This is where the statement of case:

  • Sets out no facts as to what the case is about;

  • Is incoherent and makes no sense; or

  • The facts alleged do not give rise to a legally recognisable claim against the defendant (‘D’).

This is also where the defence:

  • Only consists of a bare denial; or

  • Only contains facts that do not amount to a defence.
What does it mean an ‘abuse of process’, and who can allege this?

This claim can only be made by a defendant, and D loses this right after serving a defence.

An abuse of process is:

  • Where the limitation period has expired for the claim;

  • The claim is valid but too minimal to bring proceedings;

  • Where the claim is started without any intention to pursue it;

  • Where the litigation is only started for the purpose of causing expense, harassment or commercial prejudice;

  • Raising a claim that should have been raised in earlier proceedings;

  • Where evidence has been destroyed after bringing a claim;

  • Bringing a claim after a settlement has been agreed; or

  • A claim based on docs or comments that were made ‘without prejudice’.
What does it mean ‘likely to obstruct the just disposal of the proceedings’? If the statement is deemed vexatious or obviously ill-founded. Also if it is poorly drafting, without it being clear what is admitted and what is denied, or seeks to reverse the burden of proof.
What happens after an application to strike out?

If successful, judgment is given in favour of the successful party.

If unsuccessful, the court may dispense of the need for allocation questions, allocate the case, and give case management directions.

Discontinuance

What is ‘discontinuance’?

When does C need permission?

This is where the claimant (‘C’) wishes to discontinue all or some of this claim. This may be the whole claim, part of the claim, against all the defendants or some of the defendants.

Generally C does not need permission to discontinue. However, in certain circumstances he may:

  • Where an interim injunction has been granted for the case;

  • Where a party has made an undertaking to the court in relation to the claim;

  • If the claimant received an interim payment;

  • If the claimant is one of many, C must get permission from the court or consent from the other claimants; and

  • Where the claim is by a person with a disability, and discontinuance amounts to settlement or compromise of the claim.
How is a claim discontinued?

This is done by:

  1. If permission is required, an application for permission must be issued;

  2. once permission is given (if it was needed) serving a notice of discontinuance to the court and to all the other parties;

  3. together with written and signed consent forms from the other parties (if required),

  4. identifying the defendants against whom the claim is discontinued (if there is more than one).
What are the consequences for discontinuing a claim?

In small claims track cases there are no cost consequences.

In other cases, C will be liable for the costs of D relating to the claim, or part of the claim, that has been discontinued. This general rule may not be applied if C has obtained the relief he sought, or a change in circumstances make the claim uneconomic to continue.
Can C bring another claim on the same facts are the discontinued claim? No, unless the court gives its permission.

Stays

What is a stay?

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