1. Discontinuance and Strike Out

Question 1

4 When can court exercise its power to strike out statement of case?

Answer 1

The court may exercise its power to strike out a statement of case

if it appears that the statement of case discloses no reasonable grounds for bringing or defending the claim,

is an abuse of the court’s process

or is otherwise likely to obstruct the just disposal of the proceedings,

or there has been a failure to comply with a rule, practice direction, or court order​.

Question 2

Bringing another claim after court strikes out statement of case

Answer 2

If the court strikes out a statement of case and the claimant has been ordered to pay the defendant’s costs, and before doing so, they bring a new claim against the same defendant, arising out of facts which are substantially the same, the court may, on the application of the defendant, stay that other claim until the costs of the first claim have been paid​.

Question 3

What is a statement of case?

Answer 3

A statement of case includes claim forms, particulars of claim, defences, Part 20 claims, replies to a defence, and any further information given in relation to them​.

Question 4

What does striking out mean?

Answer 4

Striking out means that the court orders written material to be deleted so that it may no longer be relied upon. This allows the court to strike out statements of case in whole or in part and then make consequential orders​.

Question 5

When can application for striking out of statement of case be made?

Answer 5

Applications for striking out a statement of case should be made promptly, ideally before the case allocation. However, the court may exercise the power to strike out immediately before trial or even during the course of the trial, although this is rare​.

Question 6

Court actions for non-compliance with PD or rules

Answer 6

In cases of non-compliance with court orders, the court may reissue the order with added conditions and specify consequences for failing to comply. The court may also require the offending party to pay a sum into court as a condition​.

Question 7

Evidence needed for strike out application?

Answer 7

Many applications for strike out can proceed without evidence if no reasonable grounds are apparent. However, if facts need verification, appropriate evidence must be filed and served​.

Question 8

When should application for strike out be made?

Answer 8

An application for striking out a statement of case should be made promptly, ideally before case allocation. If a defendant makes a claim, then the claimant is barred from obtaining a default judgment until the application is resolved​.

Question 9

Consequences of application being made for strike out order

Answer 9

If an application for a strike out is made, the court may grant the strike out, which leads to either the claimant or the defendant winning without the need for a trial, depending on whether the claim or defence is struck out. The court also has discretion to order various consequences for non-compliance, such as payment into court or reissuing orders with added conditions​.

Question 10

Authority to initiate strike out orders

Answer 10

The court has the authority to initiate strike out orders on its own volition or upon application by a party. It may independently decide to strike out a statement of case or part of it that falls into grounds for striking out such as being vague, incoherent, vexatious, or failing to comply with rules​.

Question 11

Hearing requirement for strike out application

Answer 11

The court cannot reject a strike-out application based solely on paper submissions without first conducting an oral hearing​.

Question 12

Automatic strike out for procedural failures

Answer 12

The CPR details scenarios where a claim, defence, or counterclaim can be automatically struck out for specific procedural failures without further court order. Examples include non-compliance with filing requirements such as the directions questionnaire or a pre-trial checklist​.

Question 13

When can court conclude that particulars of claim disclose no reasonable grounds for bringing the claim

Answer 13

The court may conclude that particulars of claim disclose no reasonable grounds for bringing the claim if the claims set out no facts indicating the basis of the claim, are incoherent and nonsensical, or while factually coherent, do not present a legally recognisable claim against the defendant​.

Question 14

When may a defence be subject to a strike out for ‘no reasonable grounds of bringing or defending the claim’

Answer 14

A defence may be subject to strike out under rule 3.4(2)(a) if it consists merely of a bare denial, fails to set out a coherent statement of facts, or the facts stated, while coherent, would not constitute a legal defence if true​.

Question 15

Areas of developing law in strike out application

Answer 15

In areas of developing law, the decision to strike out should be based on actual findings rather than hypotheticals. A statement of case is not suitable for striking out if it raises a serious live issue of fact which can only be properly determined by hearing oral evidence. Strike out should only occur if the court is certain the claim will fail, particularly in areas of law that are uncertain or developing​.

Question 16

What must be considered before a strike out of defective statement of case

Answer 16

Before striking out a defective statement of case, the court should consider whether the defect could be remedied by amendment. If so, they may allow amendments rather than striking out the case entirely​.

Question 17

What does ‘abuse of the courts process’ mean in context of strike out application

Answer 17

‘Abuse of court’s process’ in the context of a strike out application is not explicitly defined in rules or practice directions but typically refers to using the process for a purpose or in a way significantly different from its ordinary and proper use. The court has power to strike out a prima facie valid claim where there is abuse of process. However, striking out has to be supportive of the overriding objective​.

Question 18

Res judicata principles

Answer 18

Res judicata principles prevent parties from re-litigating a cause of action or issue that has already been resolved in earlier proceedings. This includes Cause of Action Estoppel and Issue Estoppel, which stop parties from re-litigating causes of action or specific issues that were decided in previous proceedings. The principle also extends to the Henderson v Henderson Rule, which bars parties from raising matters in subsequent proceedings that were not, but could and should have been, raised in earlier ones​.

Question 19

Rule in Henderson v Henderson

Answer 19

The rule in Henderson v Henderson bars parties from raising in subsequent proceedings any matters that were not, but could and should have been, raised in earlier proceedings. This rule applies not just to subsequent litigation between the same parties or their privies, but also to parties to the subsequent proceedings who were not joined as parties to the earlier proceedings​.

Question 20

Collateral attacks upon earlier decisions

Answer 20

Initiating proceedings primarily to challenge a final decision made by another competent court constitutes an abuse of process. Such actions are considered collateral attacks upon earlier decisions and are typically viewed as an improper use of the judicial process​.

Question 21

What are ‘Unless orders’?

Answer 21

‘Unless orders’ are court orders that state a party must do something by a specified date, or their statement of case will be automatically struck out. The strike out is automatic upon failure to comply with the ‘unless’ order, with no need for another court order. Judges must carefully consider whether such an automatic sanction is appropriate in the circumstances​.

Question 22

Actions upon default of an unless order

Answer 22

If an ‘unless’ order leads to a default, the opposing party may obtain judgment either by filing a request for judgment if rule 3.5(2) applies or by obtaining judgment under rule 3.5(5). The court’s role at such a hearing is limited to deciding the appropriate order reflecting the sanction that has taken effect, not discretion over the operation of the sanction itself​.

Question 23

Right to discontinue claim

Answer 23

A claimant may discontinue all or part of a claim against one or more defendants at any time, unless specific permissions are required from the court, such as in cases where the court has granted an interim injunction or any party has given an undertaking to the court​.

Question 24

When is permission needed from the court to discontinue a claim?

Answer 24

Permission from the court is needed to discontinue a claim if the court has granted an interim injunction, any party has given an undertaking to the court, or if the claimant has received an interim payment and the defendant who made the payment does not consent in writing​.

Question 25

Discontinuing a claim when there is more than one claimant

Answer 25

When there is more than one claimant, one claimant cannot discontinue unless every other claimant consents in writing or the court gives permission​.

Question 26

Procedure for discontinuing a claim

Answer 26

To discontinue a claim or part of a claim, the claimant must file a notice of discontinuance and serve a copy on every party to the proceedings. The claimant must also state in the notice that they have served it on all parties. Where consent is needed, this must be attached to the notice. The notice of discontinuance must be in Form N279 unless the court permits otherwise​.

Question 27

Right to apply to have notice of discontinuance set aside

Answer 27

A defendant may apply within 28 days of service to have the notice of discontinuance set aside. This allows a defendant to challenge the discontinuance if they believe it should not have occurred​.

Question 28

When does discontinuance take effect?

Answer 28

Discontinuance takes effect on the date when the notice of discontinuance is served on the defendant(s). The claim is brought to an end as against the defendant(s) on that date. However, this does not affect proceedings to deal with any questions of costs​.

Question 29

Liability for costs upon discontinuance

Answer 29

Unless the court orders otherwise, a claimant who discontinues is liable for the defendant’s costs up to and including the date on which the notice of discontinuance was served. If proceedings are only partly discontinued, the claimant is liable only for costs relating to the discontinued part of the proceedings, and these costs must not be assessed until the conclusion of the rest of the proceedings​.

Question 30

Rules regarding subsequent proceedings after discontinuance of a claim or part of a claim

Answer 30

A claimant who discontinues needs permission of the court to make another claim against the same defendant if they discontinued after the defendant has filed a defence, and the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim. If permission is needed, the application for permission shall be included in the claim form​.