Strike Out
Strike Out à Sanction of last resort.
• When court is asked to make a strike out order, court should consider first whether any lesser sanction
is more proportionate.
3 circumstances where a strike out can be ordered (r.3.4(2))
(a) SoC discloses no (b) SoC is an abuse of the court’s (c) There has been a failure to
reasonable grounds for process or will likely obstruct just comply w a rule, PD or court
bringing/defending the claim disposal of proceedings order
No reasonable grounds Abuse of court’s process Failure to comply w a rule
Similar but not identical to ‘no real à Using the process for a à Strike out order must be
prospect of success’ test for summary purpose significantly different proportional
judgment. from its ordinary and proper use.
• court can exercise both powers on • Pursuing vendetta, seeking NB: Bc strike out is the last resort,
application of a party or on its own revenge, where there is no ill court may (but not necessarily) make
initiative (3A PD.1.7) intent but rules don’t allow an ‘unless order or impose
claim to be litigated alternative sanctions. (look below)
à For plain & obvious cases – where
SoC fails to comply w the rules of Striking out under abuse must à Court has to look at all the
pleading support overriding objective. circumstances of the case, including
history of compliance/non-
compliance
When there’s no reasonable grounds: When there’s an abuse of court’s
process: Striking out for non-compliance
3A PD.1.4 à Court seeks to both:
• PoC sets out no facts indicating 3A PD.1.5
• Punish the breach
what the claim is about Abuse of process if the claim is
proportionately; and
• PoC is incoherent & makes no vexatious, scurrilous or obviously
• Encourage future compliance w
sense ill-founded.
directions/CPR rules
• PoC coherent but facts do not
disclose any legally recognisable
claim against D
Examples of cases struck out as abuse of process:
1. Time-barred claim
3A PD.1.6
2. Bringing an individual claim when a group liti order was in place
• Defence consists of a bare 3. Attempting to re-litigate something that has already been finally decided
denial/sets out no coherent between parties (res judicata)
statement of facts 4. A claim that ‘could and should’ have been brought in earlier litigation
• Facts set out in defence would not • Broad, merit-based judgment should be adopted
amount in law to a defence to the
• Court should take into acc all facts, including the public & private
claim
involved
5. A claim that’s a collateral attack on a previous decision
• Abuse if C had a full opportunity of contesting the decision in the
court
• Fresh evidence ≠ abuse of court
Will be struck out Should not be struck out
• Claim/Defence not known to law • Developing area of law
• Unwinnable case • Serious dispute about facts
• Claim bound to fail • Defects could be remedied by requiring/permitting amendments
• Claim not serious or genuine • Caution must be exercised bc of right to fair trial under Art 6
• Expert claiming immunity from suit
, The court’s power to make orders of its own initiative (r.3.3)
Starting point: Court may exercise its powers on application or on its own initiative, unless a rule/enactment
states otherwise.
à If the court proposes to make an order of its own initiative, it may give any party that’s likely to be affected by
the order an opportunity to make representations and must specify the time & manner in which the
representations must be made.
à Court can make order of its own initiation w/o hearing or giving parties opportunity to make representations
• If the court does so, the parties affected by the order may apply to have the order set
aside/varied/stayed, and the order must contain a statement of their rights to apply.
o Usually there’s a specified period to apply, but if not, then 7 days is the default period.
• If court decides to hold a hearing to decide whether to make the order, they must give each party likely
to be affected by the order at least 3 days’ notice of the hearing.
à If the court strikes out a SoC/dismisses an application on its own initiative and considers the application totally
without merit, the court’s order must record that fact and the court must consider whether making a civil
restraint order is appropriate.
Situations
Breach of a rule CPR/PD imposes Breach of No express sanction Cmi comply in time
that has no a specific an ‘unless in CPR/breach of but application to
prescribed sanction for the order’ unless order, but extend time for
sanction breach party fails to take a compliance was
step to progress the issued before the
claim (i.e. allowing deadline
default judgment to
Court may impose a Sanction takes automatic effect be entered)
sanction. (not only s/o) on breach. (r.3.8(1))
Court has no
Court must take into Sanction will be presumed to be Court will proceed on the
restrictions to
account proportionality proportionate. basis that the sanction has
make time
& Denton principles alr been imposed
applications under
before imposing a à Defaulting party may apply for
r.3.1(2)(a)
strike out sanction. relief from the sanction (r.3.9) Defaulting party will have to
(r.3.4.1) apply for relief from
à must apply OO
sanctions (r.3.9)
& consider all the
circumstances of
Breach of direction 29PD.7 When rule/PD/order uses terms: the case
à ‘Shall/Will be struck out/dismissed’
Party applying for the imposition of
r.3.1(2)(a): Court can
a sanction must do so w/o delay, • striking out takes automatic effect.
extend/shorten time limits in a
but must first warn the other party • No further order from court is
case even if applicant is applying
of his intention to do so. necessary (r.3.8(1), 3APD.1.9)
after deadline passed.
Unless à A conditional order under r.3.1(3) r.23.5: Application will be
orders • Last sanction before ordering a strike out ‘in time’ even if the
• BUT: court is not required to order an unless order before hearing for it is after the
ordering a strike out. expiry date so long as
the application was made
à Court also has power to order defaulting party to pay money into court before the deadline.
as security for the value of the claim (r.3.1(5)-(6A))
Application for extension
à Court can also embed other sanctions into the unless order: of time ≠ application for
• i.e. further compliance leads to strike out/dismissal of claim relief from sanctions
• Extreme cases: sanction of judgment being entered for a specific
sum of damages, even tho quantum hasn’t been assessed yet.
Cont at next page
Strike Out à Sanction of last resort.
• When court is asked to make a strike out order, court should consider first whether any lesser sanction
is more proportionate.
3 circumstances where a strike out can be ordered (r.3.4(2))
(a) SoC discloses no (b) SoC is an abuse of the court’s (c) There has been a failure to
reasonable grounds for process or will likely obstruct just comply w a rule, PD or court
bringing/defending the claim disposal of proceedings order
No reasonable grounds Abuse of court’s process Failure to comply w a rule
Similar but not identical to ‘no real à Using the process for a à Strike out order must be
prospect of success’ test for summary purpose significantly different proportional
judgment. from its ordinary and proper use.
• court can exercise both powers on • Pursuing vendetta, seeking NB: Bc strike out is the last resort,
application of a party or on its own revenge, where there is no ill court may (but not necessarily) make
initiative (3A PD.1.7) intent but rules don’t allow an ‘unless order or impose
claim to be litigated alternative sanctions. (look below)
à For plain & obvious cases – where
SoC fails to comply w the rules of Striking out under abuse must à Court has to look at all the
pleading support overriding objective. circumstances of the case, including
history of compliance/non-
compliance
When there’s no reasonable grounds: When there’s an abuse of court’s
process: Striking out for non-compliance
3A PD.1.4 à Court seeks to both:
• PoC sets out no facts indicating 3A PD.1.5
• Punish the breach
what the claim is about Abuse of process if the claim is
proportionately; and
• PoC is incoherent & makes no vexatious, scurrilous or obviously
• Encourage future compliance w
sense ill-founded.
directions/CPR rules
• PoC coherent but facts do not
disclose any legally recognisable
claim against D
Examples of cases struck out as abuse of process:
1. Time-barred claim
3A PD.1.6
2. Bringing an individual claim when a group liti order was in place
• Defence consists of a bare 3. Attempting to re-litigate something that has already been finally decided
denial/sets out no coherent between parties (res judicata)
statement of facts 4. A claim that ‘could and should’ have been brought in earlier litigation
• Facts set out in defence would not • Broad, merit-based judgment should be adopted
amount in law to a defence to the
• Court should take into acc all facts, including the public & private
claim
involved
5. A claim that’s a collateral attack on a previous decision
• Abuse if C had a full opportunity of contesting the decision in the
court
• Fresh evidence ≠ abuse of court
Will be struck out Should not be struck out
• Claim/Defence not known to law • Developing area of law
• Unwinnable case • Serious dispute about facts
• Claim bound to fail • Defects could be remedied by requiring/permitting amendments
• Claim not serious or genuine • Caution must be exercised bc of right to fair trial under Art 6
• Expert claiming immunity from suit
, The court’s power to make orders of its own initiative (r.3.3)
Starting point: Court may exercise its powers on application or on its own initiative, unless a rule/enactment
states otherwise.
à If the court proposes to make an order of its own initiative, it may give any party that’s likely to be affected by
the order an opportunity to make representations and must specify the time & manner in which the
representations must be made.
à Court can make order of its own initiation w/o hearing or giving parties opportunity to make representations
• If the court does so, the parties affected by the order may apply to have the order set
aside/varied/stayed, and the order must contain a statement of their rights to apply.
o Usually there’s a specified period to apply, but if not, then 7 days is the default period.
• If court decides to hold a hearing to decide whether to make the order, they must give each party likely
to be affected by the order at least 3 days’ notice of the hearing.
à If the court strikes out a SoC/dismisses an application on its own initiative and considers the application totally
without merit, the court’s order must record that fact and the court must consider whether making a civil
restraint order is appropriate.
Situations
Breach of a rule CPR/PD imposes Breach of No express sanction Cmi comply in time
that has no a specific an ‘unless in CPR/breach of but application to
prescribed sanction for the order’ unless order, but extend time for
sanction breach party fails to take a compliance was
step to progress the issued before the
claim (i.e. allowing deadline
default judgment to
Court may impose a Sanction takes automatic effect be entered)
sanction. (not only s/o) on breach. (r.3.8(1))
Court has no
Court must take into Sanction will be presumed to be Court will proceed on the
restrictions to
account proportionality proportionate. basis that the sanction has
make time
& Denton principles alr been imposed
applications under
before imposing a à Defaulting party may apply for
r.3.1(2)(a)
strike out sanction. relief from the sanction (r.3.9) Defaulting party will have to
(r.3.4.1) apply for relief from
à must apply OO
sanctions (r.3.9)
& consider all the
circumstances of
Breach of direction 29PD.7 When rule/PD/order uses terms: the case
à ‘Shall/Will be struck out/dismissed’
Party applying for the imposition of
r.3.1(2)(a): Court can
a sanction must do so w/o delay, • striking out takes automatic effect.
extend/shorten time limits in a
but must first warn the other party • No further order from court is
case even if applicant is applying
of his intention to do so. necessary (r.3.8(1), 3APD.1.9)
after deadline passed.
Unless à A conditional order under r.3.1(3) r.23.5: Application will be
orders • Last sanction before ordering a strike out ‘in time’ even if the
• BUT: court is not required to order an unless order before hearing for it is after the
ordering a strike out. expiry date so long as
the application was made
à Court also has power to order defaulting party to pay money into court before the deadline.
as security for the value of the claim (r.3.1(5)-(6A))
Application for extension
à Court can also embed other sanctions into the unless order: of time ≠ application for
• i.e. further compliance leads to strike out/dismissal of claim relief from sanctions
• Extreme cases: sanction of judgment being entered for a specific
sum of damages, even tho quantum hasn’t been assessed yet.
Cont at next page
