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BPTC Law Notes BPTC Civil Ligitation Notes

Strike Out Notes

Updated Strike Out Notes

BPTC Civil Ligitation Notes

BPTC Civil Ligitation

Approximately 1172 pages

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The following is a more accessible plain text extract of the PDF sample above, taken from our BPTC Civil Ligitation Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

STRIKE OUT

  • limited to plain and obvious cases where trial pointless

  • related to SJ but narrower in scope

  • court may instead allow party to amend SoC

THE TEST

  • the court may strike out an SoC OR part of an SoC if:

  1. it discloses no reasonable grounds for bringing or defending the claim;

    • test: is the claim / defence bound to fail?

    • examples:

      1. incoherent

      2. facts do not amount in law to a claim / defence

      3. defence containing bare denials

    • strike likely to be refused if:

  1. developing areas of law

  2. protracted examination of documents

----OR----

  1. it is an abuse of the court's process

    • examples:

      1. claim issued after limitation

      2. wrongly bringing ordinary claim instead of JR

      3. fair trial no longer possible (evidence destroyed / forged, Ws dishonest)

      4. issuing a claim form without knowledge of basis for claim

      5. re-litigating amounting to an abuse e.g. claim settled, purpose is to challenge earlier findings

      6. res judicata

----OR----

  1. is otherwise likely to obstruct the just disposal of proceedings

    • test: is claim vexatious, scurrilous or obviously ill founded?

    • examples:

      1. unreasonably vague, and not curable by amendment

      2. joining party merely to obtain disclosure / costs

----OR----

  1. there has been failure to comply with a rule, PD, court order

  • if several grounds relied on, instead ask: is it plain and obvious that trial is pointless?

WHO CAN USE STRIKE OUT?

  • the parties - on application - to attack the other side's SoC

  • the court of its own initiative

References by court officers

  • applies if court officer thinks claim:

  1. amenable to strike out (but NOT on ground of failure to comply with rule, PD court order - no jurisdiction); OR

  2. totally devoid of merit

  • procedure

  1. court officer issues application notice (if without notice, include right to vary / set aside)

  2. may consult judge before serving

  3. judge can then (with OR without a hearing) make immediate order to dispose of the claim OR stay it pending...

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