Unit 9 - Strike out and Summary Judgment

Question 1

When the court makes an order, must it specify the consequences of failure?

Answer 1

No, but they may do so - see 3.1(3)(b).

Question 2

How much can the the court order in costs for failure to comply?

Answer 2

Have regard to:

• the amount in dispute;
• the costs which the parties have/will incur.

Question 3

Must the court have regard to the fact that a party is unrepresented when exercising case management poweres?

Answer 3

Yes.

Question 4

How much notice must the court give a party likely to be affected by their proposed order?

Answer 4

At least 3 days’ notice of the hearing.

Question 5

On what grounds can the court strike out a statement of case?

Answer 5

If it appears to the court that:

• SoC discloses no reasonable grounds for bringing or defending the claim;
• SoC is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings;
• There has been a failure to comply with a rule, PD or court order.

Question 6

If the court strikes out a SoC and considers the claim to be totally without merit, what must the court do?

Answer 6

Record that fact on their order;

Consider whether it is appropriate to make a civil restraint order.

Question 7

What relevance to the Denton principles have for applications to strike-out?

Answer 7

The questions are of relevance, but the test for strike out is materially different.

Question 8

Can strike out orders be made on the court’s own initiative?

Answer 8

Yes.

Question 9

Is it appropriate to strike out claims in an area of developing jurisprudence?

Answer 9

No!

Question 10

Should the striking out of a claim be the first option?

Answer 10

No, last option. If an abuse of process can be addressed by a less draconian course, it should be.

Question 11

What is res judicata?

Answer 11

A term used to describe a number of different legal principles including estoppels and preventing a party raising an issue in subsequent proceedings which they should have raised earlier on.

Question 12

What are unless orders?

Answer 12

An order stating that unless P does X by a particular date, their claim will be struck out.

Question 13

What is the inherent jurisdiction to strike out?

Answer 13

A power of the court to strike out claims which is in addition to its powers under r3.4

Question 14

What are the differences between strike-out and summary judgment?

Answer 14

SO applies to non-compliance with rules, practice directions and court orders;

Summary judgment applies to summary disposal of issues including preliminary issues;

Summary judgment has various procedural requirements which do not apply to SO;

SO applies to all proceedings.

Question 15

Where a rule, practice direction or courts requires P to do X by Y and specifies what happens if failure, can the parties extend the time for doing X?

Answer 15

Only via prior written agreement, up to 28 days, so long as it doesn’t put a hearing date at risk.

The court can also order otherwise.

Question 16

What are the grounds for granting summary judgment?

Answer 16

Where the court considers that C or D has no real prospect of success AND there is no other compelling reason why the case or issue should be disposed of at a trial.

Question 17

Who bears the burden of proof for summary judgment?

Answer 17

The applicant.

Once A adduces credible evidence in support of their application, R bears evidential burden of proving some real propect of success or some other reason for trial.

Question 18

Can the court give summary judgment against a claim in any type of proceedings?

Answer 18

Yes.

Question 19

can the court give summary judgment against a defendant in any type of proceedings?

Answer 19

Yes, except:

• Proceedings for possession of residential premises against a mortgagor or a tenant whose tenancy is protected under Rent Act/Housing Act
• Proceedings for an admiralty claim in rem.

Question 20

Can a claimant filed for summary judgment before D has filed an AoS or defence?

Answer 20

No, unless the court gives permission or a practice direction provides so.

Question 21

How much notice must a respondent be given that a summary judgment hearing is fixed/

Answer 21

At least 14 days’ notice of the date fixed.

Question 22

Can a defendant apply for summary judgment prior to filing an AoS/defence?

Answer 22

Yes. D can file for summary judgment whenever during proceedings.

Question 23

What must a respondent do if they wish to rely on written evidence at a summary judgment hearing?

What if the applicant wishes to rely on written evidence in reply?

Answer 23

File the written evidence

Serve copies on every party

Do both at least 7 days before SJ hearing.

The applicant must reply at least 3 days before SJ hearing.

Question 24

When are conditional orders to be made?

Answer 24

Where it appears that the claim, defence or issue may ucceed but it is improbably that it will do so.

Question 25

An application for summary judgment can be based on:

Answer 25

A point of law;

Evidence which can reasonably be expected to be available at trial;

A combination of these.

Question 26

On an application under Part 24 (summary judgment), what orders can the court make?

Answer 26

Judgment on claim;
Striking out of the claim;
Dismissal of application;
Conditional order

Question 27

What are two examples of conditional orders?

Answer 27

Orders which require a party to:

• pay a sum of money into court; or
• take a step in relation to his claim/defence, and provides that the party’s claim will be dismissed/struck out if he does not comply.

Question 28

Can a claim be struck out if a party in a multi-track case fails to return a pre-trial checklist by the stipulated date, and has not applied for an alteration of that date?

Answer 28

Possibly.

If neither party files the checklist, an ‘unless’ order will be made. Failure to comply with that order will lead to a striking out of the statements of case.,

Question 29

Can a claim be struck out if a party in a multi-track case fails to attend a case management conference without first applying for an alteration of the date?

Answer 29

A court can strike out the claim on their own motion.

Question 30

Can parties agree amongst themselves to change the date of a case management confernece?

Answer 30

No. The date can only be changed by applying to court.

Question 31

Do dates of exchange for witness/expert evidence require court applications?

Answer 31

No - thees can be altered by written agreements by the parties under CPR 2.11

However, this is not allowed if changng the dates impacts on any dates for hearings or pre-trial checklists.

Question 32

Are there more types of case in which claimants can apply for summary judgment than there are for defendants?

Answer 32

No. A defendant can get summary judgment in any type of proceedings, but claimants cannot get summary judgment for ‘possession of residential premises’ and ‘proceedings for admiralty in rem’.

Question 33

Can a claimant apply for summary judgment where the defendant has not filed an acknowledgement of service, or a defence?

Answer 33

No.

Question 34

Can a claimant apply for summary judgment where the defendant has not consented?

Answer 34

Yes

Question 35

Can a claimant apply for summary judgment where the court has not given permission?

Answer 35

Yes

Question 36

Can a claimant apply for summary judgment where the defendant has not filed an allocation questionnaire.

Answer 36

Yes.

Question 37

When can the defendant apply for summary judgment in their favour?

Answer 37

At any time after the proceedings have commenced. No requirement to have filed an acknowledgement of service or a defence.

Question 38

Does an order for summary judgment mean that litigation will always come to an early halt and not progress further?

Answer 38

No: this statement is too general.

Summary judgment can dispose with part of a claim, where the rest proceeds to trial;

The judge could also give case management directions as to how the litigation should progress;

Even if summary judgment is entered for the entire claim, there could be a counter-claim.

Question 39

When should a party apply for summary judgment?

Answer 39

Where they think the opponent lacks evidence of sufficient quality and quantity to grant a reasonable prospect of success.

Question 40

When should a party apply for strike out?

Answer 40

Where they think there is no reasonable ground for bringing/defending the claim. A matter of content.