BPP University College Of Professional Studies Limited (BPP)
BPP University College Of Professional Studies Limited
CIVIL LITIGATION REVISION NOTES
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Syllabus 11 Case Management, Sanctions and Striking out
The small claims track
Fast track and multi-track
Allocation
CMC
Costs Management
Directions
Relief from sanctions
Striking out a claim
Discontinuance
1. Striking out a claim
CPR: Part 3
3.3 Court’s power to make order of its own initiative
Except where a rule or some other enactment provides otherwise, the court may exercise its
powers on an application or of its own initiative (3.3(1) (Pt 23 - procedure for app).
Where the court proposes to make an order of its own initiative—(a) it may give any person
likely to be affected by the order an opportunity to make representations; and (b) where it
does so it must specify the time by and the manner in which the representations must be
made. (3.3(2)).
Where the court proposes—(a) to make an order of its own initiative; and (b) to hold a
hearing to decide whether to make the order, it must give each party likely to be affected
by the order at least 3 days’ notice of the hearing. (3.3(3)).
The court may make an order of its own initiative, without hearing the parties or giving
them an opportunity to make representations (3.3(4)).
Where the court has made an order under para (4)—(a) a party affected by the order may
apply to have it set aside, varied or stayed; and (b) the order must contain a statement of
the right to make such an application (3.3(5)).
An application under para (5)(a) must be made—(a) within such period as may be specified
by the court; or (b) if the court does not specify a period, not more than 7 days after the
date on which the order was served on the party making the application (3.3(6)).
If the court of its own initiative strikes out a SOC or dismisses an application (incl. an
application for permission to appeal or for permission to apply for JR), and it considers that
the claim or application is totally without merit—(a) the court’s order must record that
fact; and (b) the court must at the same time consider whether it is appropriate to make a
civil restraint order (3.3(7)).
3.4 Power to strike out a statement of case
,Syllabus 11 Case Management, Sanctions and Striking out
In this rule and 3.5, reference to a SOC includes reference to part of a SOC (3.4(1)).
The court may strike out a SOC if it appears to the court—(a) that the SOC discloses no
reasonable grounds for bringing or defending the claim; (b) that the SOC is an abuse of
the court’s process or is otherwise likely to obstruct the just disposal of the
proceedings; or (c) that there has been a failure to comply with a rule, PD or court
order. (3.4(2)).
When the court strikes out a SOC it may make any consequential order it considers
appropriate (3.4(3)).
Where— the court has struck out a C’s SOC, the C has been ordered to pay costs to the D;
and before the C pays those costs, the C starts another claim against the same D, arising out
of facts which are the same or substantially the same as those relating to the claim in which
the SOC was struck out, the court may, on the application of the D, stay that other claim
until the costs of the first claim have been paid (3.4(4)).
Para (2) does not limit any other power of the court to strike out a SOC (3.4(5)).
If the court strikes out a C’s SOC and it considers that the claim is totally without merit—(a)
the court’s order must record that fact; and (b) the court must at the same time consider
whether it is appropriate to make a civil restraint order. (3.4(6)).
3.5 Judgment without trial after striking out
This rule applies where—(a) the court makes an order which includes a term that the SOC of
a party shall be struck out if the party does not comply with the order; and (b) the party
against whom the order was made does not comply with it. (3.5(1)).
A party may obtain judgment with costs by filing a request for judgment if— (a) the order
referred to in para (1)(a) relates to the whole of a SOC; and (b) where the party wishing to
obtain judgment is the C, the claim is for— (i) a specified amount of money; (ii) an amount
of money to be decided by the court; (iii) delivery of goods where the claim form gives the
D the alternative of paying their value; or (iv) any combination of these remedies (3.5(2)).
Where judgment is obtained under this rule in a case to which para (2)(b)(iii) applies, it will
be judgment requiring the D to deliver goods, or (if D does not do so) pay the value of the
goods as decided by the court (less any payments made) (3.5(3)).
The request must state that the right to enter judgment has arisen because the court’s
order has not been complied with (3.5(4)).
A party must make an application in accordance with Pt 23 if they wish to obtain judgment
under this rule in a case to which para (2) does not apply (3.5(5)).
3.8 Sanctions have effect unless defaulting party obtains relief
,Syllabus 11 Case Management, Sanctions and Striking out
Where a party has failed to comply with a rule, PD or court order, any sanction for failure
to comply imposed by the rule, PD or court order has effect unless the party in default
applies for and obtains relief from the sanction (3.8(1)). Where the sanction is the payment
of costs, the party in default may only obtain relief by appealing against the order for costs
(3.8(2)).
Where a rule, PD or court order—(a) requires a party to do something within a specified
time and (b) specifies the consequence of failure to comply, the time for doing the act in
question may not be extended by agreement between the parties except as provided in para
(4) (3.8(3)).
In the circumstances referred to in para (3) and unless the court orders otherwise, the time
for doing the act in question may be extended by prior written agreement of the parties for
up to a maximum of 28 days, provided always that any such extension does not put at risk
any hearing date. (3.8(4)).
3.9— Relief from sanctions
On an application for relief from any sanction imposed for a failure to comply with any rule,
PD or court order, the court will consider all the circumstances of the case, so as to enable
it to deal justly with the application, including the need— (a) for litigation to be conducted
efficiently and at proportionate cost; and (b) to enforce compliance with rules, PD and
orders (3.9(1)).
An application for relief must be supported by evidence (3.9(2)).
Commentary
3.4.1 Effect of rule
SOC= a CF, particulars of claim where these are not included in the CF, defence, Pt 20 claim,
or a reply to a defence; and includes any further information given in relation to them
voluntarily or by court order under rule 18.1.
STRIKING OUT = the court ordering written material to be deleted so that it may no longer
be relied upon. A statement of case may be struck out (in whole or in part) if (a) no
reasonable grounds (b) abuse of court’s process or is otherwise likely to obstruct the just
disposal of the proceedings (c) failure to comply with rule, PD or court order.
Generally, an application for an order striking out of a statement of case will be made
during the pre-trial stages of proceedings (often together with a SJ application). However,
the court may exercise the power immediately before trial or even during the course of
trial. BUT the occasion to exercise the jurisdiction after the start of trial is likely to be rare
and there is no power to strike out a statement of case or a claim after judgment.
Grounds (a) and (b) cover statements of case which are unreasonably vague, incoherent,
vexatious, scurrilous or obviously ill-founded and other cases which do not amount to a
, Syllabus 11 Case Management, Sanctions and Striking out
legally recognisable claim or defence. This power can be exercised by a J acting on their
own initiative at the stage of issuing a claim and so D’s against whom an ill-founded action
is sought will be spared needless expense in having to initiate “strike out” proceedings.
Ground (c) covers cases where the abuse lies not in the SOC but in the way the claim or
defence has been conducted. The strike-out can be made even where there was nothing in
the rule, PD or court order breached which specified that this might happen as a
consequence of breach. In many circumstances such a strike-out would seem unduly harsh
unless the party concerned was warned (possibly in writing by another party) of the risk of
their statement of case being struck out if they did not comply with the rule, PD or court
order in question.
In the case of non-compliance with a rule or PD the court may instead order the non-
complying party to pay a sum of money into court (3.1(5) and (6)). In the case of non-
compliance with a court order the court may instead repeat its order, this time imposing
conditions and/or specifying the consequences of failure to comply (3.1(3)).
COA several alternatives to a strike out which may be appropriate to deal with non-
compliance with time limits by rules or orders: awarding costs on the indemnity basis,
ordering a party to pay money into court and awarding interest at a higher/lower rate.
COA app for strike-out for non-compliance, the Denton/Mitchell principles have direct
bearing (despite relate to relief for sanctions than apps imposing sanctions) e.g. here
applied Denton 3-stage test: D had been in breach of the court’s orders, serving its own list
of documents late, failing to provide copies of its disclosed documents, and failing to serve
its own witness statements. In assessing the seriousness of a breach, the loss of the trial
date was a weighty consideration, but J entitled to his view that it impacted more on the C
than D. It was likely that the trial date would not have been lost if the D had acted promptly.
BUT: they stressed ultimate q for court is materially different. In a strike-out application,
the proportionality of the sanction itself is in issue, whereas an application under r.3.9 for
relief from sanction has to proceed on the basis that the sanction was properly imposed.
While many applications for strike out can be made w/o evidence in support (usually if the
SOC discloses no reasonable grounds for bringing/defending the claim), the A should
consider whether facts need to be proved - if so, whether evidence should be filed and
served.
Applications for SO should be made as soon as possible and before allocation if possible. If
the application is made by the D against the C’s SOC, the C cannot obtain a DJ until that
application is disposed of.
The court may make an order for strike out under its own initiative- usually on the filing of a
claim form or defence which appears to fall within grounds (a) or (b). The fact that the court
allows such a claim or defence to proceed does not prejudice the right of any other party to
apply for an order under r.3.4. If a strike out application is made, the court cannot refuse it
on a reading of the papers unless it first hears oral argument on behalf of the applicant.
3.4.2 SOC discloses no RG for bringing or defending the claim (r.3.4(2)(a))
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