applications to strike out (no claim, abuse of process, delay & restoration)

You can have a perfectly good legal claim, not plead it properly, and still have the claim struck out.

It’s a baseline rule in law. You can’t advance a case which isn’t recognised by law.

Then, a party could misuse the process of the court so badly in such a way that it justifies the court ending the legal claim or defence altogether.

That is: bad behaviour. Again, it can be struck out. 

Grounds for Strike Out Applications

Courts have a series of grounds upon which to strike out statements of case.

They include:

• no reasonable grounds to bring the claim
• abuse of process, and
• failure to comply with the Civil Procedure Rules or a court order

Courts have power to strike out all or just some parts of a statement of case. The power to do so applies in all types of cases which may come before a court.

The centre of gravity of strike out applications is conduct that deprives a party of a fair trial.

It can also deprive a party of a substantive legal right.

It's a harsh remedy and usually applied in extreme cases.

 

"Struck Out" meaning

Struck out means that either all or part of the claim or the defence is put to death.

It's "thrown out of court": brought to an end.

The basic purpose of statements of case (ie particulars of claim or a defence) is straightforward.

They enable the opposing party to know what case is being made against them. They must contain enough detail to enable the other party to prepare to answer it, from a legal perspective.

A successful strike out application against a:

• claimant means that they:
  • have lost all or part of their claim, and
  • probably must pay the costs of the defendant

• defendant means that:
  • the pleaded defence does not contain a defence known to law, and
  • subject to further order of the court, judgment is entered for the claimant.

So a strike out application will bring an end to a claim, unless the unsuccessful party is lucky enough to obtain permission to amend its particulars of claim or defence (in an appropriate case).

Strike out claims are not necessarily the end to the litigation altogether.

It depends on the reason why the statement of case was struck out. 

• if judgment is not entered (and sometimes even when it has been), a claimant may be entitled to start again, provided it complies with any orders that the court may make at the end of a strike out hearing. 
  It's known as "issuing fresh proceedings".
  That’s because orders to strikeout a statement of case don't result from a trial where the parties’ rights and liabilities are decided on the merits of the case.
• if it's for bad behaviour - looking through the eyes of the court - it's different.
  It probably is the end. 
  But it depends on the facts of the case and the legal ground(s) upon which the case was struck out. 

It's a summary process, which is applied where a court - in essence - finds that all or part of a statement of case does not warrant a full investigation at a trial.

 

Strike Out Orders

Any claim or defence filed in the High Court or in a County Court claim can be struck out, if any of the grounds for a strike out has been satisfied.

At the end of a hearing of a strike out application, a court might:

• allow an opportunity for the defaulting party to amend the statement of case, to set out a legally sustainable claim: ie a cause of action recognised by law, whether it's:
  • a breach of contract claim
  • claim for civil fraud
  • negligent misrepresentation
  • negligent misstatement, for a misleading statement prior to a contract (a form negligence)
  • tort of conspiracy 
  • tort of conversion (ie civil theft)
  • claim under an indemnity
• make an “unless” order to allow an opportunity to make good the defect in the particulars of claim or defence
  If the unless order is not complied with, enter judgment on the claim. 
• stay the claim on its own initiative, and require a hearing before the claim form is issued or served or
• strike out part of the pleading
• strike out the entire statement of case, like this.

 

Process: What happens next? 

What can happen after a claim is struck or a defence is struck out. What next?

What happens depends on the sort of case it is: 

If the:

• claimant gets the defence struck out:
  • entire defence:
    The claimant usually - or should - apply for judgment.
    It's a standard form of request. A formal application notice (Form N244) is not needed
  • part of defence:
    The case continues less the claims which are struck out
• defendant gets the particulars of claim struck out:
  • entire particulars of claim:
    The case is over unless a new claim form is issued and served. There may be costs consequences for the claimant: an order to pay the legal costs of the defendant
  • part of the particulars of claim:
    The case continues but only for the remaining claims left in the particulars of claim

Restoration of a Claim or Defence

When a party wants to restore a statement of case after it's been struck out, there's no time for messing around.  Steps need to be taken quickly.

After a statement of case has been struck out, it might be restored:

• if the court struck it out on its own initiative or without a hearing, without hearing the parties or giving them an opportunity to make representations the order can be set aside or varied, provided that an application is made within the required time period.
  If no time period is mentioned in the strike out order, it is short - 7 days from the date of service of the order
• after judgment has been entered.
  If the judgment was entered by request under CPR 3.5, following an order to strike out a statement of case is made in an unless order, provided that:
  • the entire statement of case was struck out
  • the claim was for a sum of money, or
  • delivery of goods

An application must be made within 14 days after the judgment was served.

Failing that an application must be made for relief from sanctions. 

• where there was no entitlement to a strikeout in the first place.
  For example:
  • where it can be shown that the strike out was an abuse of process itself
  • an error of procedure was made by court or other side, such as
    • the strike out application was not served 
    • there was no notice of the strike out hearing date
• after a failure to attend the trial
  Entire proceedings can be struck out if one or both parties do not attend the trial under CPR 39.3.
  An application (supported by evidence) may be made to restore the proceedings under CPR 39.3(3) provided that one of the grounds at CPR 39.3(5) is satisfied
• on an application for relief from sanctions

Fair Hearing

A party facing the prospect of a prospect of a struck out case must be provided fair opportunity to present their case orally.

That's the chance to present the arguments which they say justifies not striking out the case, at a hearing in public. It applies to claimants and defendants alike.

A litigant not taking that opportunity is quite another matter. Don't expect a second chance or at least get it easily.

In the Court of  Appeal case Frey v Labrouche (2012), it was held:

It is vital that justice is seen to be done, but that is by no means the only, or even the main, reason for this. It is also because it is vital that justice is done. 

It's a fundamental common law right. It has only very limited exceptions.

If the option remains open for claimant, frequently it's more cost effective to start again, and re-issue the claim form with properly pleaded particulars of claim.

 

Grounds for Strike outs

There are several:

1. no reasonable grounds to bring a claim: the case would not (if proved) make out any legally recognised cause of action
2. abuse of process: The process of the court has been used for a collateral purpose or ulterior motive of a litigant
3. failure to comply with a rule or order: A party has ignored orders of the court, such as case management directions, disclosure, serving witness statements, or pre-trial directions made at a Pre Trial Review

Courts also have an inherent jurisdiction to control proceedings which come before it. It’s rare, but that might include striking out a claim or defence which does disclosure reasonable grounds to bring a claim altogether.

Each of the grounds has its own nuances. They're based on different types of failings by a party. 

 

1. No Reasonable Grounds for the Claim

Statements of case must contain – or disclose - a legal claim recognised by law.

It’s known as to as a cause of action.

If a litigant doesn’t get the statement of case right the first time, the prospect of a strike out application looms. It is an indicator of the importance of making sure statements of case are right the first time.

If there's an omission of a material fact, you can't top it up later. All of the facts which a party relies on must be set out in the particulars of claim, defence or other statement of case. 

That's because parties facing litigation claims need to know how to answer the case made against them:

• defendants have the right to know the facts are alleged which are said to give rise to liability 
• claimants are entitled to know how the liability alleged will be defended

All of this arises because court will not normally allow proof of primary facts which have not been pleaded at the trial.

That means that if a party has not alleged a fact in the statement of case, the offending party will not even be able to prove their own case at the trial. 

Considerations

When deciding whether a statement of case discloses a reasonable ground for bringing the claim, courts will:

• assume that the facts set out in it will be proved at the trial, and
• then decide if those facts are proved, the claimant has a realistic prospect of obtaining the relief claimed against the defendant. That the real prospect of success test.

Whether  party has a real prospect of success is the same legal test applied in summary judgment applications.

That’s a claim or defence which:

• isn’t bound to fail
• is more than merely arguable, and
• carries some degree of conviction.

Points of Law

Strike out applications can also be decided on points of law, such as how a contract should be interpreted or the legal effect of a will.

If the success of the litigant in civil litigation depends on a short point of law, courts are able to decide the application on that basis. Courts take the view that if claim is bad in law, the sooner it ends, the better.

Cases suitable for strike out include:

• the claimant or defendant raises an unwinnable case
• cases where the claim or defence is not valid as a matter of law.
  In other words, there is no cause of action and the claim is doomed to fail.

In both cases, continuance of court litigation would waste resources of the parties and the court.

Examples

A series of examples are provided in the Civil Procedure Rules, Practice Direction 3A at paragraph 1.4(3). They include:

For a claimant, where the Particulars of Claim:

• state simply “Money owed £5,000”, with nothing to say how or why the money is said to be owed
• are incoherent and make no sense from legal perspective, and
• contains a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.

For a defendant, in the Defence:

• it consists of a bare denial or the statement of case is coherent (which is no defence), or
• the facts alleged would not even if true amount in law to a defence to the claim, even if it is coherent.

It makes sense. If you’re approaching a court of law for a legal remedy, then the claim for that legal remedy needs to be recognised by the law.

It’s how the Rule of Law works.

 

2. Abuse of Process

Courts and the civil justice system are there to:

• provide a final method for members of society to resolve disputes between themselves, and
• completely and finally resolve all matters in dispute between them. See section 49(2) of the Senior Courts Act.

Abuse of process is an improper use of judicial process: the process made available to resolve disputes by courts.

Types of Abuse of Process

Abuses of process:

• advance frivolous or vexatious legal claims
• puts defendants to expense, harassment or commercial prejudice by starting or continuing vexatious or malicious claims, and/or
• use a court's procedures for a purpose or in a way significantly different from their primary purpose, which is to resolve disputes finally and completely

What amounts to Abuse?

Looking at abuses of process cases from another perspective, they involve litigants using court litigation:

• to advance an ulterior motive: one other than to obtain due legal process, and
• in such a way that would be manifestly unfair to a party to the litigation, or
• otherwise brings the administration of justice into disrepute.

In this way, abuse of process:

extends to all categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness [...] [P]roceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which had already been disposed of by earlier proceedings.

So that's when a party brings legal proceedings for:

• the purpose of obtaining for a person some collateral advantage, and 
• not for the purpose for which such court-based dispute resolution are designed.

Vexatious Litigation

Vexatious litigation includes litigation matters which:

• have little or no basis in law
• exposes the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant, and
• involve an abuse of the process by using the process of the court for a purpose or in a way which is significantly different from the ordinary and proper use of the court process

They're open textured definitions.

That's because there is no end to the ways and methods in which a court’s process may be abused misused and abused.

Personal Animosity

In the context of allegations of vexatious litigation:

• motive and intention of a claimant do not matter.
  Asserting legal rights by feelings of personal animosity, vindictiveness or general antagonism towards the opponent is irrelevant: it is “nothing to the point”
• just because a person has ulterior motive is not enough to amount to an abuse of process
• It’s when the process of the court is misused to attempt to achieve an end which is not properly available that gives rise to an abuse of process

It takes a clear case to strike out proceedings as an abuse of process when a proper cause of action exists.

Multiple Proceedings and Claims

Courts exist to finally and completely determine disputes between parties.

Multiple proceedings are to be avoided. This includes preventing:

• Repeat claims, where two or more sets of legal proceedings cover the same subject matter, such as the same contract.
  However, if a claimant’s conduct in the first action is not an abuse of process or is forgivable a second action should not be struck out as an abuse of process
• Re-litigation of disputes between the parties which have already been decided by a court.
  Substantially similar applications between the same parties on the same subject matter are likely to be struck out
• New issues: raising issues in fresh litigation which should have been raised in previous proceedings between the same parties
• Deliberate continuation of proceedings to avoid justice, rather than achieve it.  In fact, launching or continuing proceedings that the party has no intention of ever continuing to trial can be an abuse

Courts maintain an inherent power to prevent abuses of process.

A party to litigation may literally comply with the rules of court. That doesn’t prevent a party to the dispute being successful on a claim that such conduct is an abuse of process.

 

3. Non-Compliance with a Rule or Order

These are the sort of failures which obstruct the just disposal of the case. 

Parties to legal proceedings, whether they are litigants in person or not are expected to be familiar the rules of court: the Civil Procedure Rules.

There are specific grounds for striking out a case in the Civil Procedure Rules.

Administrative Strikeouts

Administrative strikeouts include:

• failures to attend the trial: CPR 39.3
• failures to attend at hearings on the small claims track: CPR 27.9
• failures to pay:
  • trial fees: CPR 3.7(4) and CPR 3.7A1(7). A failure to pay can give rise to an automatic costs order under CPR 44.9
  • fees for counterclaims: CPR3.7A(4)
  • any court fee because a cheque is dishonoured on presentation: CPR3.7B

Substantial Grounds

Case law shows that a strike out can follow from failing to obey an order to:

• pay money into court
• pay a costs order
• give specific disclosure
• exchange evidence
• file the trial bundle, or
• any other order made as part of case management directions

Failures such as these affect the fairness of the dispute resolution procedure made available by the court.

It also interferes with the integrity of judicial process: the due administration of justice. 

Delays such as these may have consequences, which are quite serious from a court's perspective.

It might mean the loss of a trial date or trial window. That causes courts serious administrative headaches. 

There is no limit on the discretion of the court to strike out cases on appropriate cases.

Much will depend on the seriousness of the breach and the affect it has on the court and the opposing party.

Time however deserves special mention.

Time Limits

The times for events to happen in litigation are primarily set out in:

• the Civil Procedure Rules for service of court documents, and
• case management directions.

It used to be the case that court timetables were frequently not adhered to with too much attention.

That time has now ended.

It would be an understatement to say that adhering to court times is fundamental requirement for any litigant, whether they are a claimant or defendant.

It's critical to be able to participate in legal proceedings at all.

Falling behind in filing and/or serving documents which are required by the CPR or case management directions can be fatal. The onus is always on the party not meeting the timetabling requirements that show that forgiveness it is appropriate in the circumstances.

These same principles apply in the context of strike out applications.

Denton Principles

The principles are derived from the Court of Appeal case named Denton v White (2014). The principles in that case apply in all civil proceedings.

The principles in that case stem from Rule 3.9(1) of the Civil Procedure Rules.

The process applied by the court follows these steps:

1. Identify and assess the seriousness or significance of the breach
2. Consider why the default occurred
3. Evaluate all the circumstances of the case so as to enable the court to deal justly with the application factoring in the need:
   • for litigation to be conducted efficiently and at proportionate cost; and
   • to enforce compliance with rules, practice directions and orders

Courts do grant extensions of time when the tests are satisfied.

But requests for extensions of time should be made in advance of the due date. Not after.

Making applications after the due date just makes the situation worse, and harder – or impossible - to recover from.

Serious Delay

This is the sort of delay arises where the parties there are no case management directions made to direct the future conduct of the proceedings. The parties have no timetable to adhere to.

This situation often arises between the filing of the last statement of case (usually the defence) and the fixing of time for the first case management conference.

If the court doesn't list a case management conference for a directions hearing itself, and the parties do nothing (such as applying for a case management conference), there is no court timetable. 

But parties - claimants and defendants - have a duty to progress the proceedings. 

If the parties continue to sit back & do nothing, they fail to advance the claim, the proceedings may remain stationary for years. 

In those cases:

• a court may strike out a claim for want of prosecution:
  • contumelious conduct on the part of the plaintiff e.g., disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court
  • inordinate and inexcusable delay which causes a real risk of prejudice to the defendant or to the ability to conduct a fair trial.
    The delay may be by the party, or their solicitors
• a court may make a finding of abuse of process which:
  • may itself be sufficient to justify striking out
  • does not itself require that the defendant has been disadvantaged by the delay

That introduces the realm of inordinate and inexcusable delay.

That of itself is a ground to strike out the claim and/or the defence for abuse of process. The court may consider though:

• other events, such as foreign proceedings which touch on the English proceedings
• hold pending the outcome of proceedings abroad, without the permission of the court

 

Consequences of Abuse of Process

When a court decides that an abuse of process has taken place:

• it will strike out either the entire statement of case or part of it, and
• may enter judgment of its own motion, should it appear that the innocent party is entitled.

In addition to these inherent powers, the Court may make a Civil Restraint Order preventing applications from being filed with the Court unless an application is first made to the Court to approve the application.

Furthermore, a litigant who has been wrongly and maliciously sued may recover damages for malicious prosecution.

 

Alternatives to Striking Out

Issuing non-compliant statements of case means that the proceedings might otherwise not have needed to be commenced, and lead to costs being incurred in the proceedings that might otherwise not have been incurred.

Under the CPR courts have a wide discretion to exercise its case management powers.

Striking out is seen as a last resort: it can be disproportionate to strike out the action altogether.

To avoid a striking out where it’s possible, it is normal for a court to consider whether there are any other options, and provide the offending party with an opportunity to fix the problem.

 

Amendments to save striking out

Where a statement of case is found to be defective, the court is likely to consider whether that defect might be cured by amendment, and to give the party concerned an opportunity to amend where appropriate.

That involves allowing an opportunity for the offending litigant to prepare and serve a statement of case which does disclose:

• a cause of action, or
• the cause of action apparently intended to be pleaded.

But the proposed amendments which disclose a cause of action must be sufficiently arguable: they must have a [real prospect of success].

The rule relating to applications to amend is that permission to amend will not be given to raise a claim that is not maintainable in established law: it does not disclose a [cause of action].

 

Further Alternatives

Other options available to the court include ordering:

• order a stay of proceedings until orders made in previous proceedings are complied with 
• the party at fault to pay the costs of the proceedings, or part of those costs to the other party
• pay costs on an indemnity basis
• pay money into court
• in the case of a claimant, a reduction of all or part of damages or interest which would otherwise be payable 
• in the case of a defendant, a higher rate of interest on damages
• correction of the non-compliance within a fixed period of time
• pay sums which should have been paid pursuant to an order on a revised timetable, and on a further non-compliance, strike out the statement of case.

Unless Orders

These sorts of orders may be made on the basis that if they are not complied with (aka "unless orders") the strike out order will come into effect at a fixed later date. Unless orders are designed to coerce compliance with courts' orders.

Striking out of the entire statement of case ends the proceedings.

 

Examples: Abuse of Process

Abuses of process aren’t limited the form they may take. The grounds for strike out applications are wide and varied.

Successful strike out applications include:

• Filing a claim after a limitation period has expired. The defendant has a complete defence to the expired claim, provided the correct procedure is adopted
• Commencing legal proceedings without any intention to continue them
• A statement of case is incapable of proof
• Bringing a later claim which is inconsistent with a previous claim made by the same claimant, or raises issues which should have been raised in the previous proceedings
• Claims founded on material protected by legal professional privilege
• Issuing separate proceedings against several persons rather than using one claim form and one set of proceedings to resolve all disputes

In claims where the limitation period has expired, courts may allow an amendment of the statement of case to add or substitute a new claim, where it arises out of the same facts or substantially the same facts as the claim already sought: CPR 17.4.

 

Case Example:

A claim for libel was listed for a 14 day trial. The libel was published to one person who already knew all of the facts of the case.
The potential damages award was likely to be nominal or near to it.
The claim was trivial within the context of the resources which would be required by the defendant to defend the claim.
The claim was made vindictively rather than to vindicate the claimant’s reputation.
The claim was struck out.

Simply because claims are small is not sufficient to justify striking it out. It's more a matter of whether there the procedure to decide the merits of case is proportionate.

The overarching principle applied by the court was to deal with the case justly and at proportionate cost.

 

When Strike Out not available

When a statement of case is defective, an application to strike out should not be granted unless the court is certain that the claim is bound to fail.

Cases which are not ideal for striking out include those where the area of law is:

• uncertain
• developing, or
• novel

Courts prefer to decide cases such as these on decided facts. To do otherwise means that the law will not have an opportunity to develop.

It is more desirable that the facts be found so that development of the law is decided on the basis of actual facts, rather than hypothetical facts only (and perhaps wrongly).

Significant Disputes

Cases involving significant and serious disputes of fact which can’t be decided on a summary basis, the court should not strike out the claim unless the claim is bound to fail. Those disputes of fact will be drawn out in the pleadings.

It may be appropriate to strike out only part of the claim to reduce the burden of the parties to prepare for the trial.

Parties should be allowed to lead evidence so that the trial judge can determine where the truth lies, and allow the evidence to be tested.

However even if the pleaded facts were proved, it may be that the case will still not be successful, because no cause of action is disclosed: No remedy would be available or the remedy sought

 

Dual Applications

Summary procedures such as strike out applications and applications for summary judgment are often brought at the same time, as alternatives.

They achieve the same end with a slightly different focus. A strike out application does not consider the evidence on the claim. It focuses on the statements of case, which includes Further Information and Clarification which may have been served.

Courts have a discretion to treat a strike out application as an application for summary judgment

In every case the court focuses on the justice of that particular case and the Overriding Objective.

 

Conclusion

Strike out applications are suitable for cases where:

• the party has behaved so poorly that it is below the standard expected by the court, and a sanction justified, or
• a statement of case is defective:
  • even if a party were to succeed in proving all the facts alleged, they will not be entitled to remedy, or
  • the factual basis for the claim is baseless: it is not capable of being proved.

In these cases, a trial of the facts are a waste of time and money.

Courts take the view that hopeless cases should be ended as soon as possible. An order on a strike-out application is justified.

Applications should be brought early in the proceedings. It avoids wasted costs in the lead up to trial and so that all parties know what issues are to be decided at the trial.

Failing to bring an application early may in all likelihood waive the right to an order to dispose of the proceedings.