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#13713 - 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?

If the statement of case:

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

  2. Is an abuse of process;

  3. There has been a failure to comply with a rule/PD/ Court order.
What can be struck out?

Either part or the whole of a statement of case.

Court has discretion when considering strike out and may:

  • Allow a party to amend their statement of case,

  • Treat the application as one for summary judgment
What is the procedure for bringing a strike out application?

  1. Application notice in accordance with Part 23;

  2. No evidence is needed, but evidence usually filed and served.

Applications for strike out should be made as soon as it is obvious that they should be made. Usually this is between AoS and directions questionnaires.
When should an application be made? Applications for strike out should be made as soon as it is obvious that they should be made. Usually this is between AoS and directions questionnaires.
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’.

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?

C must:

  • File a notice of discontinuance

  • Serve a copy on all parties.
What are the consequences for discontinuing a claim?

GR is that the discontinuing party pays all costs of all parties until the date of service of discontinuance.

2 exceptions:

  1. If claim proceeding in small claims track

  2. If C has, in effect, obtained the relief C was seeking in the claim.
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?

 This is where the claim is frozen (but remains alive), and no further steps are taken to progress the case except applications to lift the stay.
When are stays likely to be made?

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