What Does it Mean When a Claim is “Struck Out”?
What is Strike Out?
Strike out is a step that a court can take which has the effect of dismissing the whole, or a part, of a claim or defence before it gets to trial.
The court can strike out either after being asked by one of the parties, or it can do so on its own initiative.
The power to strike out is exercised sparingly and is considered a remedy of last resort, because courts prefer to allow cases to be determined in full on their merits, rather than to carve out and dispose of parts without a trial.
As a result, a party must show that the case (or part thereof) which it wants the court to strike out is fundamentally flawed.
What are the Requirements for Strike Out?
A statement of case (either a claim or defence) may be struck out if:
It discloses no reasonable grounds for bringing or defending the claim; or
It is an abuse of process, for example if it seeks to re-litigate an issue already decided; or
It is likely to obstruct the just disposal of proceedings; or
there has been a failure by the party that seeks to rely on the relevant statement of case to comply with a court rule, order, or practice direction.
When Can You Apply for Strike Out?
A strike out application should be made as soon as it becomes clear to you that it is appropriate. Courts encourage early applications to avoid unnecessary costs being wasted by the parties developing parts of the case which are fundamentally flawed.
Ideally, applications for strike-out should be made before or when filing the directions questionnaire.
If the application is based on abuse of process, the application should be made shortly after service of proceedings.
Strike out can also be sought after failure to comply with an “unless order”.
What is the Procedure for Applying for Strike Out?
Whilst every case has the potential to differ, in general the process of applying for strike-out is as follows:
1. file an application
the application completes Form N244 (application notice), clearly stating the grounds and providing supporting evidence;
the applicant submits the form to the court, and pays the court fee.
2. serve the application
the application and supporting documents must be served on the opposing party;
the opposing party then has the opportunity to file evidence in response.
3. attend a hearing
the court may hold a hearing where both parties present their arguments and evidence;
the judge can either grant or dismiss the application, or give further case management directions;
What Happens If a Claim or Defence is Struck Out?
If the application to the court is successful, the claim or defence (or part(s) of it) will be “struck out”.
If the entire claim is struck out, then the case comes to an end.
If the entire defence is struck out (and there is no order for a new defence to be filed), then the claim is undefended and the claimant has the opportunity to apply for judgment in default.
If only part of a claim or defence is struck out, the case continues on the part(s) of the claim/defence which were not struck out.
What are the Alternatives to Strike Out?
If strike out is not appropriate in the circumstances, it may be possible to instead seek:
“summary judgment” – in circumstances where the other party has no real prospect of success;
“security for costs” – in circumstances where there is a fear that the other party is unlikely to be able (or willing) to pay the successful party’s legal costs if they lose;
court-imposed sanctions for procedural breaches – in circumstances where there has been a failure to comply with court rules, the court will be prepared to consider imposing sanctions (e.g. limiting evidence, or imposing costs orders) rather than the much more draconian step of striking out.
Conclusion
Strike out is a powerful tool for quickly disposing of weak claims or defences (or parts thereof) early in the litigation process. However, it is a remedy of last resort, and courts apply it cautiously.
A well-prepared application with strong legal and factual support is essential for success, and is best prepared with the assistance of specialist legal advice such as that provided by Hamshaw.
For more insights on litigation strategy, read our other articles here.