Discontinuance and Strike Out

Question 1

CPR 3.4?

Answer 1

Powers to strike out a Statement of Case

Question 2

How many circumstances can lead to strike out of a statement of case?

Answer 2

3

Question 3

What is the 2nd circumstance that can lead to strike out of SoC?

Answer 3

SoC is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of proceedings (vague / ill-founded claims)

Question 4

What is the 1st circumstance that can lead to strike out of SoC?

Answer 4

The statement of case discloses no reasonable grounds for bringing or defending the claim (incoherent or vexatious claims)

Question 5

What is the 3rd circumstance that can lead to strike out of SoC?

Answer 5

There’s been a failure to comply with a rule, practice direction or court order. (conduct in issue)

Question 6

What should happen if a struck out claim is deemed to have no merit?

Answer 6

The court MUST record that, and consider making a civil restraint order.

Question 6

What may the court do if after strike out and a costs order, C begins another similar claim?

Answer 6

If claim A was struck out and costs were ordered but C begins claim B, court may STAY claim B until costs of claim A are paid.

Question 6

What may the court do after striking out a statement of case?

Answer 6

After strike out, the court may make any consequential order deemed appropriate.

Question 7

What is a consequence of a defendant applying for strike out?

Answer 7

They needn’t file defence before the strike out hearing.

Question 7

The Denton test is for relief from sanctions. How is it used in deciding strike out applications.

Answer 7

For 3.4, Denton test should overall consider the proportionality of the sanction itself, unlike in 3.9 where it is assumed the sanction was proper and just.

Question 8

What are alternatives to strike out for non-compliance with time limits?

Answer 8

Awarding costs, paying money into court, or interest may be more appropriate.

Question 8

What test should the court use in deciding a strike out application?

Answer 8

Courts should apply the Mitchell/Denton principles - as it directly relates. But, should bear in mind the ultimate question is different.

Question 9

What is the 3-step Denton test?

Answer 9

(1) identify and assess seriousness and significance of failure to comply (2) why was there failure (3) evaluate all circumstances of case.

Question 9

What is the most obvious evidence that step 1 of Denton is satisfied?

Answer 9

That future hearings or otherwise would be severely disrupted

Question 10

How is step 2 of Denton satisfied?

Answer 10

There’s no specific definition, but good reason such as accident or illness would likely satisfy.

Question 11

What is needed to apply for strike out?

Answer 11

Evidence in support isn’t required, but advisable. Applications should be made ASAP.

Question 11

What happens if it is the defendant applying for strike out?

Answer 11

if D applies for strike out of Cs statement of case, C can’t obtain default judgment until disposal of strike out

Question 12

What is meant by step 3 of denton: “consider all circumstances of the case”?

Answer 12

Court must above all consider efficiency and proportionality, but also promptness of applicants, parties’ records of compliance etc.

Question 13

Who can prompt a strike out hearing?

Answer 13

Strike outs may begin by application of claimant, defendant, or court’s own volition.

Question 14

Can a strike out application be decided on the papers?

Answer 14

No - the court cannot refuse it until it first hears oral application

Question 15

What statements of case are appropriate to be struck out due to lack of grounds?

Answer 15

Statements of cases of - unwinnable cases; wastes of resources; not valid claim or defence as a matter of law.

Question 16

When should strike out NOT be exercised?

Answer 16

In any claim in a developing area of jurisprudence or live issue of fact that requires hearing oral evidence.

Question 17

Should strike out always be used for defective statements of case?

Answer 17

No. That wouldn’t be proportionate. Often, an amendment is more appropriate and opportunity for that should be given.

Question 18

Is strike out always the response for an abuse of the courts process?

Answer 18

No - the proportionality of sanction remains important even in cases of abuse of the system.

Question 18

What would constitute a statement of case that's an 'abuse of the court's process'

Answer 18

Using the process for a purpose or in a way significantly different from its ordinary and proper use.

Question 19

What would constitute vexatious proceedings that warrant strike out?

Answer 19

Where a party by conduct demonstrates determination to pursue proceedings with the object of preventing a fair trial.

Question 20

Define res judicata?

Answer 20

Describes various estoppels and what precludes a party from raising proceedings which weren't but should have been raised in previous proceedings.

Question 21

What is the relationship between res judicata and strike out powers?

Answer 21

Strike out powers should be exercised to ensure a defendant isn't oppressed by successive suits even if different parties are in subsequent proceedings than the previous.

Question 22

What does CPR 3.1(3) create?

Answer 22

3.1(3) essentially creates "unless orders": court may make a conditional order "unless by X date..", statement of claim shall be struck out or dismissed.

Question 23

What recourse is there for unless orders?

Answer 23

Parties may still apply for relief if they apply under 3.8 (sanctions have effect unless defaulting party obtains relief).

Question 24

What can a defaulting party's opponent do when an unless order has been given to the defaulter?

Answer 24

The opposition may apply under 3.5 for judgment without trial after striking out.

Question 25

How can parties apply for judgment without trial after strike out?

Answer 25

Either by request to judge (for money or goods claims) or through Part 23 procedure if not.

Question 26

CPR Part 23?

Answer 26

General rules about applications for court orders.

Question 27

CPR Part 38?

Answer 27

Procedure by which a claimant may discontinue all or part of a claim

Question 28

What is NOT discontinuance of all/part of a claim?

Answer 28

Someone claiming more than 1 remedy that abandons claim to one of those remedies.

Question 29

When may a claimant discontinue a claim?

Answer 29

At any time C may discontinue all or part.

Question 30

If the claimant has received an interim payment, when may they discontinue?

Answer 30

May ONLY discontinue if D who made the interim payment gives written consent OR court gives permission.

Question 30

When must the claimant obtain court permission to discontinue?

Answer 30

If the court has granted an interim injunction OR any party has given an undertaking to the court.

Question 31

When can a claimant discontinue if there are multiple claimants?

Answer 31

In cases of multiple claimants, discontinuance may only happen with written consent of all claimants or court permission.

Question 32

Generally, do you need permission to discontinue a claim?

Answer 32

No, you only need party/court permission in situations outlined in 38.2

Question 33

What is the procedure for discontinuing?

Answer 33

(1) file notice in form N279 (2) serve copy on all parties

Question 34

What must be included in a notice for discontinuance?

Answer 34

A notice of discontinuance must state that it is served on all parties and, where necessary, include copies of permission granted, if claim has multiple Ds, specify the D.

Question 35

When does discontinuance take effect?

Answer 35

A notice of discontinuance takes effect on the day that it is served.

Question 36

What recourse does a defendant have against discontinuance?

Answer 36

May apply to have the notice of discontinuance set aside within 28 days after date of service. Court will then set aside, reject, or impose conditions.

Question 37

How should a defendant apply to set aside notice of discontinuance?

Answer 37

Applications should be made with notice and supported with evidence.

Question 38

Once discontinuance takes effect, what happens to the claim?

Answer 38

Discontinuance takes effect on date of service, and the claim against that defendant ends on the same date - costs remain to be determined.

Question 39

When a claim is discontinued who is liable for costs?

Answer 39

Claimant who discontinued is liable for all costs incurred by D up until date of service, and if only partial, only partial costs. (Except for small claims)

Question 40

On what basis are costs ordered after discontinuance?

Answer 40

Costs orders following discontinuance are on the standard basis, but there's scope for indemnity basis in exceptional circumstances.

Question 41

In which claims are costs orders after discontinuance limited?

Answer 41

Personal Injury cases have limited costs enforcement against claimants.

Question 41

What is a consequence for C of discontinuing a claim?

Answer 41

C then must get permission of court to make another [similar] claim against same D if discontinuance occurred after service of acknowledgment/defence

Question 41

Define indemnity costs?

Answer 41

Where a party is ordered to pay a higher costs contribution than is standard.