Strike out

Rule 3.4 of the Civil Procedure Rules 1998 provides the court with the power to strike out a party’s statements of case. The court has the power to strike out statements of case in whole or in part.

The effect of the rule is that, in certain circumstances, a litigant can be prevented from relying on their statements of case (or sections of them as the case may be). Statements of case means the claim form, particulars of claim, defence, counterclaim or reply to defence.

The court can exercise the power of its own initiative and under its inherent jurisdiction. However, generally, an application will be made by one party, in the early stages of the proceedings, to head off litigation and save costs.

A statement of case may be struck out if it appears that:

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

Rule 3.4 is, therefore, commonly used in two scenarios:

  • As a means of disposing of proceedings where a party seeks to rely on vague, incoherent, or ill-founded claims and defences and in cases which are substantially lacking in any legal grounding; and
  • As a sanction for an abuse of court process and procedure, whether by way of vexatious claims or in the conduct of the claim more generally.

The consequences to a party subject to a strike out are severe and the court is cautious with its use of the power. Where an application is made by a party to the proceedings, it will often be used together with an application for summary judgment. A successful application can effectively bring the proceedings to an end before the issues in question have been considered.

The court will often consider whether there are less draconian means of achieving the same effect, particularly with regards to compliance with court orders, and strike out will only be used as a last resort.

The use (and limitations) of the power to strike out a statement of case are subject to the application of the overriding objective, which requires cases to be dealt with justly and at proportionate cost. The court must consider the balance between the costs which could be incurred by allowing the proceedings to continue and the limitation of access to justice.