Unit 9 Strike Out and Summary Judgment

Question 1

When may the court strike out a statement of case?

Answer 1

(2) The court may strike out a statement of case if it appears to the court—
a. that the statement of case discloses no reasonable grounds for bringing or defending the claim;
b. that 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
c. that there has been a failure to comply with a rule, practice direction or court order.

Question 2

What order may the court make if it strikes out a statement of case?

Answer 2

When the court strikes out a statement of case it may make any consequential order it considers appropriate (e.g. claimant to pay defendant’s costs.

Question 3

What happens where a statement of case has been struck out and costs ordered (CL to pay D) and the CL brings another almost identical claim?

Answer 3

the court may, on the application of the defendant, stay that other claim until the costs of the first claim have been paid.
Case law: Where proceedings have been dismissed with costs it is an abuse for an assignee of the claimant to commence or continue fresh proceedings in respect of the same matter without paying the costs previously awarded against the assignor. The court may strike out vexatious applications in an action and may, in addition, make an order prohibiting further applications being made without the court’s permission.

Question 4

What does “statement of case” mean?

Answer 4

Statement of case means “a claim form, particulars of claim where these are not included in the claim form, 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

Question 5

How is strike out defined in the WB Glossary?

Answer 5

“Striking out means the court ordering written material to be deleted so that it may no longer be relied upon”. This rule enables the court to strike out statements of case in whole or in part and then make consequential orders.

Question 6

Can a claim be struck out following judgment?

Answer 6

No. There is no power to strike out a statement of case or a claim after judgment has been given in the claim.

Question 7

What should the court consider when deciding whether to strike out?

Answer 7

Statements of case which are suitable for striking out on ground (a) include those which raise an unwinnable case where continuance of the proceedings is without any possible benefit to the respondent and would waste resources on both sides.
A claim or defence may be struck out as not being a valid claim or defence as a matter of law. However, it is not appropriate to strike out a claim in an area of developing jurisprudence, since, in such areas, decisions as to novel points of law should be based on actual findings of fact. A statement of case is not suitable for striking out if it raises a serious live issue of fact which can only be properly determined by hearing oral evidence. An application to strike out should not be granted unless the court is certain that the claim is bound to fail.

Question 8

Can amendments prevent striking out?

Answer 8

Yes. Where a statement of case is found to be defective, the court should consider whether that defect might be cured by amendment and, if it might be, the court should refrain from striking it out without first giving the party concerned an opportunity to amend.

Question 9

What is “abuse of process”?

Answer 9

“using that process for a purpose or in a way significantly different from its ordinary and proper use”

Question 10

What is the general principle regarding statements of case that are an abuse of process?

Answer 10

The court has power to strike out a prima facie valid claim where there is abuse of process. However there has to be an abuse, and striking out has to be supportive of the overriding objective. It does not follow from this that in all cases of abuse the correct response is to strike out the claim. In a strike-out application the proportionality of the sanction is very much in issue

Question 11

What is “res judicata” and what is its relation to striking out statements of case?

Answer 11

The court’s power to strike out abusive proceedings is often employed to give effect to principles relating to res judicata, a portmanteau term which is used to describe a number of different legal principles including:
• cause of action estoppel (the prohibition on the re-litigating of a cause of action held to exist (or not exist) in earlier proceedings);
• issue estoppel (the prohibition on re-litigating an issue decided in earlier proceedings even though in respect of a different cause of action); and,
• the Henderson principle, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones

Question 12

Can delay be categorised as an abuse of process when striking out?

Answer 12

Delay, even a long delay, cannot by itself be categorised as an abuse of process without there being some additional factor which transforms the delay into an abuse. For example, a claim was struck out where delays were caused by a claimant acting in wholesale disregard of the norms of conducting serious litigation and doing so with full awareness of the consequences.

Question 13

What can the court do where a statement of case is badly drafted, instead of striking it out?

Answer 13

The circumstances may warrant the making of an “unless order”, i.e. an order directing that a badly drafted statement will be struck out unless, by a stated date, the party at fault provides a clear and concise statement of their case.
If compliance is not met by the given date, the strike out “will be automatic and no further order of the court will be required”

Question 14

Can the court make summary judgement on just part of a claim?

Answer 14

Yes. The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue.

Question 15

What are the criteria that the court must be satisfied to grant summary judgment?

Answer 15

a. it considers that—
I. that claimant has no real prospect of succeeding on the claim or issue; or
II. that defendant has no real prospect of successfully defending the claim or issue; and
b. there is no other compelling reason why the case or issue should be disposed of at a trial.

Question 16

“no real prospect of succeeding/successfully defending” summary (summary judgment)

Answer 16

• i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success;
• ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable;
• iii) In reaching its conclusion the court must not conduct a “mini-trial”;
• iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents;
• v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial;
• vi) The court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case.
• vii) if the respondent’s case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant’s case is bad in law, the sooner that is determined, the better.
In some cases, the disputed issues are such that their conclusion by settlement or trial largely depends upon the expert evidence relied on by each side. In such cases, an application for summary judgment will usually be inappropriate unless it is made after the exchange of the experts’ reports and, in most cases, after the experts have discussed the case and produced a joint statement.

Question 17

To what standard are cases held to show “[a/no] real prospect of succeeding/successfully defending” summary

Answer 17

• i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success;
• ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable;

Question 18

“no other compelling reason [for] a trial” summary (summary judgment) (read)

Answer 18

Easiest to illustrate with case law examples:
• The fact that the claimant company was in liquidation was a compelling reason to refuse summary judgment where there were latent claims and cross-claims between the parties.
• Summary judgment for the claimant against the first defendant was held to be inappropriate where similar issues remained to be determined at a trial as between the first defendant and other parties. In all the circumstances that constituted a “compelling reason” not to enter summary judgment.
• The Court of Appeal upheld a refusal to rule upon a short point of construction of the terms of an insurance contract where those terms were said to be standard terms which were widely used in the insurance market.

Question 19

Where does the burden of proof lie in applying for summary judgment?

Answer 19

The overall burden of proof rests on the applicant to establish that there are grounds to believe that the respondent has no real prospect of success and that there is no other reason for a trial. The applicant must
a. identify concisely any point of law or provision in a document on which they rely, and/or
b. state that the application is made because the applicant believes that on the evidence the respondent has no real prospect of succeeding on the claim or issue or (as the case may be) of successfully defending the claim or issue to which the application relates, and in either case state that the applicant knows of no other reason why the disposal of the claim or issue should await trial.
The essential ingredient is the applicant’s belief that the respondent has no real prospect of success and that there is no other reason for a trial.

Question 20

If the applicant discharges their burden of proof in an application for summary judgment what does this mean for the respondent?

Answer 20

If the applicant for summary judgment adduces credible evidence in support of their application, the respondent becomes subject to an evidential burden of proving some real prospect of success or some other reason for a trial. The standard of proof required of the respondent is not high. It suffices merely to rebut the applicant’s statement of belief. The language, (“no real prospect … no other reason …”) indicates that, in determining the question, the court must apply a negative test. The respondent’s case must carry some degree of conviction: the court is not required to accept without analysis everything said by a party in his statements before the court.

Question 21

What is the effect of set off or counterclaim on summary judgment?

Answer 21

A claimant may be prevented from obtaining summary judgment, in whole or in part, if the defendant can show that he intends to raise a set off or counterclaim which raises a triable issue, i.e. has some prospect of succeeding.
In some cases a set off will not prevent the claimant obtaining a summary judgment which is enforceable immediately.
If the defendant raises a triable counterclaim which cannot be deployed as a set off, the court may grant summary judgment to the claimant but with a stay of enforcement pending the trial of the counterclaim. If the claim value overtops the alleged value of the counterclaim, the stay of enforcement may be made conditional upon the defendant paying the difference by a specified date. Alternatively, the stay of enforcement may be limited to the alleged value of the counterclaim.

Question 22

Is it the claimant or the defendant who can be awarded summary judgement in ANY type of proceedings?

Answer 22

Defendant.
1. The court may give summary judgment AGAINST a claimant in any type of proceedings.
2. The court may give summary judgment AGAINST a defendant in any type of proceedings except—
a. proceedings for possession of residential premises against—
I.  a mortgagor; or
II. a tenant or a person holding over after the end of his tenancy whose occupancy is protected within the meaning of the Rent Act 1977 or the Housing Act 1988 and;
b. proceedings for an admiralty claim in rem.

Question 23

In what cases is a claimant prevented from being given summary judgment?

Answer 23

2. The court may give summary judgment AGAINST a defendant in any type of proceedings except—
   a. proceedings for possession of residential premises against—
   III.  a mortgagor; or
   IV. a tenant or a person holding over after the end of his tenancy whose occupancy is protected within the meaning of the Rent Act 1977 or the Housing Act 1988 and;
   b. proceedings for an admiralty claim in rem.

Question 24

In what cases is a defendant prevented from being given summary judgment?

Answer 24

NONE. The court may give summary judgment AGAINST a claimant in any type of proceedings.

Question 25

What must have happened before a claimant can file for summary judgment?

Answer 25

(1)A claimant may not apply for summary judgment until the defendant against whom the application is made has filed—
a. an acknowledgment of service; or
b. a defence, unless—
I. the court gives permission; or
II. a practice direction provides otherwise

Question 26

Can a claimant file for summary judgment before filing its PoC?

Answer 26

No. The time limits for filing an acknowledgment of service and a defence both run from the date of service of the claimant’s particulars of claim. It therefore follows that a claimant cannot validly apply for summary judgment before serving their particulars of claim unless the court gives permission.

Question 27

When can a defendant file for summary judgment?

Answer 27

A defendant can apply for summary judgment in their favour on the claimant’s claim at any time after the proceedings have been commenced. There is no requirement for them to file an acknowledgment of service or a defence before doing so.

Question 28

Can a court make a conditional (“unless”) order in respect of summary judgment?

Answer 28

Yes. a conditional order as an order which requires a party:

a. to pay a sum of money into court; or
b. to take a specified step in relation to his claim or defence as the case may be, and which provides that the party’s claim will be dismissed, or his statement of case will be struck out if he does not comply.”

Before exercising the power, the court should identify the purpose of imposing a condition and should satisfy itself that the condition it has in mind represents a proportionate and effective means of achieving that purpose,

Question 29

Gamma Aviation case set out 5 principles for deciding whether a conditional order for payment into court or security for costs should be made on an application for summary judgment:

Answer 29

1. In a case where the defendant has a real prospect of successfully defending the claim, the court must not impose a condition requiring payment into court or the provision of security with which it is likely to be impossible for the defendant to comply.
2. The burden is on the defendant to establish on the balance of probabilities that it would be unable to comply with a condition requiring payment into court or the provision of equivalent security.
3. In order to discharge that burden a defendant must show, not only that it does not itself have the necessary funds, but that no such funds would be made available to it, whether (in the case of a corporate defendant) by its owner or (in any case) by some other closely associated person.
4. Despite the fact that the Rules expressly contemplate the possibility of a payment condition being imposed, it is not incumbent on a defendant to a summary judgment application to adduce evidence about the resources available to it, at any rate in a case where no prior notice has been given that the claimant will be seeking a conditional order.
5. The court’s power to make a conditional order on a summary judgment application is not limited to a case where it is improbable that the defence will succeed. Such an order may be appropriate in other circumstances, for example (and without being exhaustive) if there is a history of failures to comply with orders of the court or there is a real doubt whether the party in question is conducting the litigation in good faith. However, the court needs to exercise caution before making a conditional order requiring a defendant who may have a good defence to provide security for all or most of the sum claimed as a condition of being allowed to defend.

Question 30

What orders may the court make under part 24 summary judgment?

Answer 30

1. judgment on the claim,
2. the striking out or dismissal of the claim,
3. the dismissal of the application,
4. a conditional order.

Question 31

What must a party apply to the court for permission for if he wishes to vary the date?

Answer 31

a. a case management conference;
b. a pre-trial review;
c. the return of a pre-trial check list;
d. the trial; or
e. the trial period.

Question 32

How do you chose Summary Judgment or Striking Out?

Answer 32

Summary judgement is a test of whether there is a real prospect of success and it focuses on whether there is evidence of sufficient qualities and quantities to succeed – usually contained in witness statements and those are the documents that a judge will be scrutinising.
Striking out only looks at statement of case rather than witness statements/evidence. Summary judgement is a much broader consideration of the evidence.
Choose your remedy according to whether the defects lie in the statements of case or the witness evidence. If there are defects in both, you can apply for both.

Question 33

Civil Restraint Orders summary

Answer 33

• Restrains someone for proceeding with civil litigation
• The court stepping in to curtail the behaviour of parties
• Reason and a purpose for civil restraint orders
• Limited, General, Extended – 3 different types
• Tends to relate where claimants make repeated claims
• If the relevant criteria are met, the court can make one of three orders. Curtails whether the parties can access the law courts and initiate a claim – not made lightly.