Common problems with cases that are non-compliant with the Civil Procedure Rules (CPR) often lead a lawyer to consider whether to apply to the court to strike out the statement of case, or to write to the court setting out the breach. In most cases, lawyers will encourage the other party to discontinue the claim rather than incur the costs of an application and the risk that the court refuses it, giving the other party an opportunity to amend.
The starting point is set out at CPR 3.4(2). This rule gives the court the power to strike out a statement of case (which includes a claim or defence) on specific grounds:
a) no reasonable grounds for bringing or defending the claim.
b) abuse of the court’s process or conduct likely to obstruct the just disposal of the proceedings.
c) failure to comply with a rule, practice direction or court order.
We consider strike out where a claim makes no legal sense or is not supported by facts. In a defence, a bare denial without explanation, a party attempting to restart a claim previously struck out, or a failure to comply with an unless order can all justify the application.
We have seen many claims that do not show reasonable grounds for bringing or defending a claim. It is common to cite the above rule within a defence and invite the court to exercise its case management powers; however, in reality, courts simply do not like to strike out a claim or defence.
The reason is that the courts view strike out as a drastic measure that denies a party the opportunity to have their case heard.
At the very start of the Civil Procedure Rules lies the Overriding Objective. This requires cases to be dealt with justly and fairly. Striking out a case can prevent a party from presenting its evidence, which would undermine their right to a fair trial.
The right to a fair trial is long-standing, enshrined in Article 6 of the European Convention on Human Rights, and forms part of UK law via the Human Rights Act 1998.
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Courts prefer to resolve disputes on their merits rather than solely on procedural grounds, so they are reluctant to hinder a party’s opportunity to have their say.
There is already a mechanism within the CPR at Part 24 that provides for summary judgment. The court can also give case management directions to manage the claim and then consider whether strike out should follow. This allows a proportionate and controlled approach.
Judges emphasise that there must be clear grounds for strike out. The case may be obviously unsustainable, have no real prospect of success, or its continuation would amount to an abuse of process.
The Judiciary are simply upholding the rules, and particularly that of rule 3.4(2).
Therefore the outtake from this is despite requesting the court to strike out a claim, it will only do so if it is absolutely clear that rule 3.4(2) has been breached in some way and that the otherside has had an opportunity to amend the breach.
If you are facing a strike out or summary judgment application, or considering one, our Lawgistics legal team can guide you through the CPR and, where needed, handle the application via our community interest company Lawgistics Litigation for the Motor Trade.
