T9 (Sanctions And Striking Out) Flashcards
When may the court strike out a statement of case?
When will it take effect?
If it disclosed no reasonable grounds for being or defending the claim
It is an abuse of process or is likely to obstruct the just disposal of the proceedings
Failure to comply with a rule, PD or order
Takes effect = Immediately
What happens if the C SofC has been struck out and C has been ordered to pay costs to the D and before the C has paid those costs they start another claim against the same D on the same or substantially the same facts?
Court may on an applicant of the D, stay the new claim until the costs of the first claim have been paid
What must the court do if they strike out the C SofC and they consider the claim to be totally without merit?
Name order that could be made
Court order must record that fact (that it is totally without merit) and court must at the same time consider whether it is appropriate to make a civil restraint order
What can a party do if a court has made an order which includes a term that states that a parties SofC will be struck out if that party does not comply with the order, and that party fails to comply with the order.
What does a request of this nature need to state?
Other party can file a request for judgment IF
The order relates to the whole claim and
IF it is the C seeking to obtain judgement — the claim is for specific sum of money (even if to be decided by court) or as an alternative to the delivery of goods
Request needs to state that court’s order has not be complied with
What is an unless order?
When a party if given a last chance to comply
I.e If X is not completed by X date then their SofC will be struck out
What will the court consider when an application is made for relief from sanctions?
What must an application for relief be supported by?
All of the circumstances to enable it to deal with the application justly, including:
Need for litigation to be conducted efficiently and at proportionate cost AND
To Enforce compliance with rules/PD/orders
Application must be supported by evidence — In a WS
What is the DENTON test?
3 questions:
- Is the breach serious and significant?
- Why did the breach happen?
- What are all the circumstances of the case?
How does DENTON apply?
IS the breach serious or significant?
No ….
Yes …
Next part of test ….
Yes …
No ….
Applies to the interpretation of 3.9 not the other way around
No = Grant relief
Yes = Then consider if there is good reason for the breach
(The MORE serious/significant the breach the LESS likely relief will be granted)
Yes … Grant Relief
NO … Then the court will take into consideration all of the circumstances
What can the court order on an application for relief from sanctions?
Refuse the application = Sanction remains in place
Grant relief from the sanctions
Grant relief from the sanctions BUT impose a CONDITION
I.e pay a sum of money into the court or take a specified step
Can the Court make an order to strike out a SofC of their own initiative?
What orders can the court make in relation to striking out?
Yes Court can, but more likely when a party makes an application under 3.4
Orders:
Court can permit amendment rather than striking out (common in cases where the SofC disclosed no reasonable grounds)
Striking out of whole claim (most serious cases)
Striking out of part of the claim
Or another lesser sanction
What kind of things can amount to ‘no reasonable ground’ within particulars of claim?
What kind of things can amount to ‘no reasonable ground’ within a defence?
Particulars of claim:
No facts indicating what the claim is about
Incoherent and makes no sense
Does not disclose any legally recognisable claim
Defence:
Bare denial
No coherent statement of fact
Facts do not amount in law to a defence to the claim
What may be seen to amount to an abuse of the court’s process?
Vexatious proceedings (harassing someone)
Re-litigation of already decided issues
Pointless and wasteful litigation
When can the power to strike out be exercised?
What can the court consider when deciding whether to strike out following a failure to comply?
What is the effect of D filing an application to strike out on the procedural clock?
Generally in pre-trial stages, but can be immediately before trial pr even during course of trial
Court is entitle to take Denton factors in account + the PROPORTIONALITY of the sanction, court should also consider if there may be a proportionate alternative to striking out i.e amendment
Stops the clock - so C cannot then enter default judgment against D
Give examples of the types of sanctions that relies can be sought from?
When does 3.9 not apply?
Default judgment, loss of the right to call a witness, loss of a right to participate in a hearing
3.9 does not apply where the action impose is an order for the payment of costs
What has been said to amount to serious and significant?
Should the court consider previous conduct when considering if the breach was serious and significant?
If the breach has put the hearing date at risk or otherwise disrupts the conduct of litigation = the most useful measure of if breach is serious and significant
Court show focus on the breach in respect of which the relief is sought (more general consideration fo parties conduct should be left under the 3rd stage)
