strike out applications

Courts have the power to remove the whole or part of a statement of case filed by a party in litigation. The strike out jurisdiction of English Courts is one of the means by which Courts are able to bring an end litigation based on incoherent statements of case, causes of action and allegations of legal liability which have no foundation in law.

The consequence of a striking out may be that the opposing party may be able to enter judgment relatively easily or not contend or deal with the allegations which were struck out. Indeed, the entire proceedings are able to be struck out, thus bringing an end to the litigation. Applications for strike out are made well before the trial and usually before the first case management conference in order to avoid needless expense of progressing the litigation to trial.

Grounds for Orders to Strike Out

The power of UK Courts to do so may be exercised on the application of an opposing party in the litigation where:

1. the statement of case (usually particulars of claim or a defence) does not disclose a cause of action, such that there is no reasonable ground for bringing or defending the claim;
2. the pleading does not contain a sufficient precise statement of the facts upon which the claimant relies;
3. inadequate reasons are given for a denial in a defence,
4. the proceedings are an abuse of the process of the court; or
5. a party has failed to comply with the rules of court or directions given by the court.

The power to strike out may also be exercised by the court of its own motion, without notice to the parties. Striking out particulars of claim and defences may also be ordered by courts as a measure to address repeated failures by a party to comply with case management directions, practice directions or other orders of the court.

Applications to strike out should be supported by evidence, unless the application is based solely on a point of law. The court is at liberty to treat a strike out application as one for summary judgment in order to finally dispose of issues that are unworthy of pre-trial processes and investigation. Such applications are properly brought prior to the filing of allocation questionnaires, and a defendant who files a defence on the merits in response to defective particulars of claim is at risk of being denied its application, as the application is inconsistent with defending the proceedings.

Examples

A court may be inclined to exercise its power to strike out the whole or part of a statement of case is where that statement of case discloses no reasonable grounds for bringing or defending a claim. Examples of such cases include particulars of claim or a defence which:

1. does not set out facts indicating what the claim is about;
2. set out an unwinnable case;
3. those which are incoherent, vague, obscure and make no sense;
4. those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable (1) claim against the other party or (2) does not amount in law to a defence to the claim;
5. is vexatious, scurrilous or obviously ill-founded. In making the assessment, the court will assume that each of the allegations pleaded are true;
6. advances an improper collateral purpose on the part of the litigant;
7. amounts to an abuse of process on the part of the litigant.

When a strike out application is successful, either the proceedings are struck out in their entirety or some part of the pleading is struck out.

A successful strikeout application is likely lead the court to enter judgment in favour of the other party or allow the claimant to apply for judgment, bringing an end to the issues and disputes before the court. An order is likely to be made that the successful party be paid the costs of the proceedings up to the point of the striking out.

Alternatives to Orders

On a strike out application, a Court may favour ordering the offending party to pay money into Court to secure the costs of the opposing party, order payment of costs forthwith on the indemnity basis (with consequences for failing to do so), or order the party to pay interest on a higher scale than what would otherwise be the case: Biguzzi v Rank Leisure plc (1999).

Summary Judgment

Strike out applications serve a similar purpose to summary judgment applications. Both types of applications are properly available in litigation which does not require full investigation and progression to the trial. In respect to costs, the usual rule is the party whose statement of case has been struck out will be liable to pay the costs of the other parties involved in the litigation.

If a statement of case is struck out in its entirety, the party to the litigation will need to apply for relief from sanction in order to avoid judgment being entered and enforced.