#10337 - Strike Out - BPC Civil Litigation

STRIKE OUT

• limited to plain and obvious cases where trial pointless

• related to SJ but narrower in scope

• court may instead allow party to amend SoC

THE TEST

• the court may strike out an SoC OR part of an SoC if:

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

   • test: is the claim / defence bound to fail?

   • examples:

     1. incoherent

     2. facts do not amount in law to a claim / defence

     3. defence containing bare denials

   • strike likely to be refused if:

1. developing areas of law

2. protracted examination of documents

----OR----

2. it is an abuse of the court's process

   • examples:

     1. claim issued after limitation

     2. wrongly bringing ordinary claim instead of JR

     3. fair trial no longer possible (evidence destroyed / forged, Ws dishonest)

     4. issuing a claim form without knowledge of basis for claim

     5. re-litigating amounting to an abuse e.g. claim settled, purpose is to challenge earlier findings

     6. res judicata

----OR----

3. is otherwise likely to obstruct the just disposal of proceedings

   • test: is claim vexatious, scurrilous or obviously ill founded?

   • examples:

     1. unreasonably vague, and not curable by amendment

     2. joining party merely to obtain disclosure / costs

----OR----

4. there has been failure to comply with a rule, PD, court order

• if several grounds relied on, instead ask: is it plain and obvious that trial is pointless?

WHO CAN USE STRIKE OUT?

• the parties - on application - to attack the other side's SoC

• the court of its own initiative

References by court officers

• applies if court officer thinks claim:

1. amenable to strike out (but NOT on ground of failure to comply with rule, PD court order - no jurisdiction); OR

2. totally devoid of merit

• procedure

1. court officer issues application notice (if without notice, include right to vary / set aside)

2. may consult judge before serving

3. judge can then (with OR without a hearing) make immediate order to dispose of the claim OR stay it pending further documents

WHEN TO APPLY FOR STRIKE OUT?

• as soon as apparent it is desirable

• usually between filing AoS and DQs - court allocates track at same hearing

• must be before D files a defence (otherwise, D has acquiesced and can't strike out)

• default judgment CANNOT be entered till strike out application disposed of

PROCEDURE

• use normal procedure for interim applications (part 23)

• evidence in support (other than faulty SoC) usually not required

• court can treat application for strike out as one for SJ

COURT'S POWERS AFTER STRIKE OUT

• if claim struck out court may

1. enter such judgment as successful party entitled to; AND

2. make any consequential order it considers appropriate

• if claim NOT struck out carries on as normal (allocate track, case management)

STARTING A SECOND CLAIM AFTER STRIKE OUT

• if C starts claim arising out of substantially the same grounds

• D may apply for a stay until costs of stuck out claim are paid

• second claim may be an abuse of...