#16079 - Striking Out - BPC Civil Litigation

Striking Out a Claim

CPR Part 3 (Court’s Case & Costs Management Powers)

3.3, Court’s power to make order of its own initiative

• (1) Except where a rule/some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative.

  • (Part 23 procedure for making an application)

• (2) Where the court proposes to make an order of its own initiative:

  • (a) it may give any person likely to be affected by the order an opportunity to make representations; and

  • (b) where it does to is must specify the time by and the manner in which the representations must be made.

• (3) Where the court proposes: (a) to make an order of its own initiative AND (b) to hold a hearing to decide whether to make the order

  • it must give each party likely to be affected by the order at least 3 days’ notice of the hearing.

• (4) the court may make an order of its own initiative WITHOUT hearing the parties or giving them an opportunity to make representations.

• (5) Where the court has made an order under (4) [without hearing the parties]:

  • (a) a party affected by the order may apply to have it set aside, varied or stayed; and

  • (b) the order must contain a statement of the right to make such an application.

• (6) an application to set aside/vary/stay under (5)(a) must be made:

  • (a) within such period as may be specified by the court; OR

  • (b) if course does not specify, not more than 7 days after the date on which the order was served on the party making the application.

• (7) if the court of its own initiative strikes out a statement of case OR dismisses an application (including for permission to appeal or apply for JR), AND it considers that the claim or application is totally without merit:

  • (a) the court’s order must record that fact; and

  • (b) the court must at the same time consider whether it is appropriate to make a civil restraint order.

3.4, Power to strike out a statement of case

• (1) in this rule and r3.5 [[judgment without trial are striking out]] reference to a “statement of case” includes reference to part of a statement of case.

• (2) the court may strike out a SoC if it appears to court:

  • (a) that the SoC discloses no reasonable grounds for bringing or defending the claim;

  • (b) that the SoC is an abuse of the court’s process OR is otherwise likely to obstruct the just disposal of the proceedings; OR

  • (c) that there has been a failure to comply with a rule/PD/court order.

• (3) where the court strikes out a SoC it may make any consequential order it considers appropriate

• (4) Where:

  • (a) the court has struck out a Claimant’s SoC;

  • (b) the C has been ordered to pay costs to D; and

  • (c) before C pays those costs, C starts another claim against the same D, arising out of facts which are the same or substantially the same as those relating to the claim in which the SoC was struck out

  • The court may, on the application of the D, stay that other claim until the costs of the first claim have been paid

• (5) Para (2) does not limit any OTHER power of the court to strike out a statement of case.

• (6) If the court strikes out a C’s SoC and it considers that the claim is totally without merit:

  • (a) the court’s order must record that fact; and

  • (b) the court must at same time consider whether appropriate to make a civil restraint order.

Commentary, 3.4.1, Effect of rule

• The rule enables the court to strike out Statements of Case, in whole or part, and then make consequential orders

• “Statement of case” means: a claim form, PoC (where not included in claim form), defence, Pt 20 claim, a reply to a defence.

  • And includes any further information given in relation to them, voluntarily or by court under r18.1 [‘further information’]

• “Strike out” = defined in glossary: ‘means the court ordering written material to be deleted so that it may no longer be relied upon’.

• TIMING:

  • Generally, an application for an order striking out a SoC will be made during the pre-trial stages (often together with an application for summary judgment).

  • However, the court may exercise the power immediately before trial or even during course of trial (whether or not an application was made before the trial and adjourned to be dealt with at trial).

  • And, under r3.3, court may act of its own volition, i.e. not on an application.

  • However, will be very rare to exercise the jurisdiction after start of trial

  • No power to strike out a claim once judgment has been given, whether judgment was given at trial or in default.

• Grounds for striking out (a) [no reasonable grounds] and (b) [abuse of process/obstruct just disposal]

  • These grounds cover:

  • SoCs which are unreasonably vague, incoherent, vexatious, scurrilous, or obviously ill-founded;

  • And other cases which do not amount to a legally recognisable claim or defence.

  • This power can be exercised by a judge acting on their own initiative at the stage of issuing a claim (perhaps under r3.2, court officer’s power to refer to a judge); AND thus Ds against whom an ill-founded action is sought to be brought, will be spared needless expense in having to initiate ‘strike out’ proceedings.

• Grounds for striking out (c) [failure to comply with a rule/PD/order]

  • This covers cases where: the abuse lies not in the SoC itself; but in the way the claim or defence has been conducted.

  • The strike-out can be made even where there was nothing in the rule/PD/court order breached which specified that this might happen.

  • Often, such a strike-out would seem unduly harsh unless the party concerned was warned (possibly in writing by another party) of the risk of strike out if they did not comply with the rule/PD/court order.

  • In the case of non-compliance with a Rule or PD, the court may instead order the non-comply party to pay a sum of money into court (r3.1(5) and (6)).

  • In the case of non-compliance with a court order, the court may instead repeat its order, this time imposing conditions and/or specifying the consequences of failure to comply with the order or condition (r3.1(3)).

  • CA (Biguzzi v Rank Leisure), drew attention to several alternatives to a strike out under r3.4, which may be appropriate to deal with non-compliance with time limits laid down by rules or orders:

    • (1) award costs on indemnity basis payable forthwith;

    • (2) order a party to pay money into court;

    • (3) awarding interest at a higher or lower rate.

• CA: on a r3.4 application for strike-out for non-compliance, the Mitchell/Denton principles (which apply to applications under r3.9 [relief from sanctions] have a direct bearing, even though they relate to applications for relief from sanctions rather than applications to impose a sanction.

  • On the facts, applying the Denton three-stage test, was held that the judge was entitled to dismiss the strike out application. D had been in breach of the court’s orders, serving its own list of documents later, failing to provide copies of its disclosed docs, and failing to serve its own witness statements.

  • Although Mitchell/Denton were said to have a direct bearing CA stressed that the ultimate question for court in deciding whether to impose a strikeout Is materially different from that in deciding whether to grant relief from a sanction that has already been imposed.

  • In a r3.4 strike out application, the proportionality of the sanction (of striking out) itself is in issue: where as an application under r3.9 for relief from sanction has to proceed on the basis that the sanction was properly imposed.

• Many applications under r3.4(2) can be made without evidence in support (usually if the SoC discloses no reasonable grounds for bringing/defending the claim); but the application should consider whether facts need to be proved, and, if so, whether evidence in support should be filed and served.

• r3.4 applications should be made as soon as possible, and before allocation if possible:

• If the application is made by D against C’s SoC the C cannot obtain a default judgment until the application is disposed of.

• Under r3.3, the court may make an order under r3.4 of its own initiative:

  • Most likely to occur on the filing of a claim form or defence which appears to fall within grounds (a) or (b).

  • If the court allows such a claim or defence to proceed, that does not prejudice the right of any other party to apply for an order under r3.4.

• If a strike-out application is made, the court cannot refuse it on a reading of the papers, UNLESS it first hears oral argument on behalf of the applicant.

  • Fundamental feature of English civil justice system: an applicant should be allowed to bring his application to court and make his case before a judge.

• Other provisions in CPR refer to court’s power to strike out, not a ‘statement of case’ in particular, but: “the claim’, ‘defence, ‘any counterclaim’ where certain procedural failures occur, and do so in terms that expressly state that the strike out will take effect ‘without further order of the court’.

  • EG failing to file a directions questionnaire: r26.3(7A) and (8)

  • Failing to a file a pre-trial checklist (r29.6(3) in multi-track cases; r28.5(3) in fast track cases).

  • And see also rules re non-payment of fees (r3.7, 3.7A, 3.7B)

Commentary, 3.4.2, condition (a) [SoC discloses no reasonable grounds for bringing/defending the claim]

• EGS of cases where court may conclude that a Particulars of Claim disclose no reasonable grounds for bringing the claim:

  • Claims which set out no facts indicating what the claim is about

  • Claims which are incoherent and make no sense;

  • Claims which contain a coherent set of facts but those facts, even if true, do not disclose any legally...