Striking Out Notes

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 of which ended up passing through the CoA, which must have been beyond the worst nightmares of the unfortunate draftsman response for implementing the rule change.

Osman v UK – EctHR castigated the English courts for employing striking out to dismiss legally unfounded claims. Violation of Art 6. BUT Z v UK – such pre-trial filer is compatible with HR so long as court only decides to strike out a claim or defence after considering possible pertinent differences between factual situations.

Three Rivers (no 3) (BCCI case) - 3 members of HoL fatefully allowed this case to proceed to trial. The trial lasted 2 years before the C eventually discontinued it before judgment on day 256 of the trial.

Lord Millett (dissent) – even taking into account the voluminous pre-trial papers, the claim was objectively “most implausible”, “scarcely credible” and “extravagant”.

This case demonstrates that appeal courts should be slow to upset a striking out decision even if the case is complicated and involves extensive documentation. English law should also consider introducing a focused pre-trial oral hearing – its purpose to probe weak claims which might otherwise proceed to lengthy trial.

Zuckerman (2006) – involved at least 63 days of hearings and cost the D’s some 80m.

Clarke J had made a summary decision against the C’s – no reasonable cause of action because the definition of misfeasance in public office is very high and almost impossible for C’s to surmount. Said it was doomed to failure. Bank of England not capable of being liable for tort of misfeasance. CoA accepted that in a complex case it would normally be inappropriate to strike out at an interlocutory stage but they considered this was a case where departure from that normal rule was necessary. Hirst and Walker LJJ agreed with Clarke J that it was unlikely that a fundamentally different picture from that depicted in the Bingham report might emerge at trial and no realistic possibility that would be fundamentally different. The claims were against a considerable number of bank officials holding many posts over 10 years. Would be very expensive and long. In HoL Steyn, Hope and Hutton were for the majority against Hobhouse and Millett. Majority said needed an oral trial to see if reckless.

“serious failure of case management in this lamentable saga”.

It seems Lord Hope believed that the requirement that each case be dealt with justly was different from, and independent of, the overriding objective of dealing with cases in a proportionate and expeditious manner. Yet, at the very heart of the CPR lies the recognition that proportionality and expedition are part and parcel of doing substantive justice (Zuckerman 2006).

Lord Hobhouse (minority) stated: the CPR “represents an important shift in judicial philosophy from the traditional philosophy that previously dominated the administration of justice...day in court”.

Zuckerman points Moy in 2005 and Lord Carswell there whose dicta suggest that if a refusal to allow late...

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