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ESSAY PLAN 7 - striking out PROS CPR 3.4(2) - Power to strike out a statement of case is exercisable where the statement of case discloses no reasonable grounds for bringing a claim; the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or failure to comply with a rule, practice direction or court order. E.g. the instrument of striking out can be used when a party's first action has been struck out on the basis of an abuse of process and that party commences a second action on the same facts. Whether a party has a real prospect of success depends on an assessment of two distinct matters: 1) whether the pe party has a real prospect of success on the basis of the facts that are known at the time and 2) whether there is a real prospect that some additional support for the part's case would emerge if the case followed the normal procedural route. Aktas - Rix LJ: two situations: (i) the second action follows dismissal of the first action on the basis of an abuse of process (inordinate and inexcusable delay, contumelious disobedience, or wholesale disregard of the procedural rules) = second action might be legitimately struck out, though not automatic or invariable. (ii) the second action follows termination of the first action other than one the merits, and without an element of abuse of process (notably the first action has misfired because was not made within the time limits, and the court in this first litigation refused to grant an extension of the time for service). = the second action will normally be allowed to proceed. The ground of striking out because the statement of case disclosures no reasonable grounds for bringing or defending the claim can overlap with the court's jurisdiction to award summary judgment under Part 24. Both serve the same function - to weed out bad/tenuous claims/defences. Both can only receive oral trial. Summary judgment sieve has slightly finer mesh than striking out jurisdiction. S v Gloucestershire CC - striking out on the factual/legal merits is only justified in the clearest case Summary judgment under Part 24 - slightly greater scope for disposing of the relevant claim or defence. Slightly more searching review of the relevant issue. O'Brian (1999) - though on the face of it, the automatic striking out provisions appeared to be a fairly innocuous development of the court's inherent jurisdiction to strike out for want of prosecution, the revision of the rules produced a voluminous body of satellite litigation, much
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