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Guide to Strike Out Applications

A strike out application is a useful legal strategy that can be used to try to obtain an early end to a dispute without the need for a hearing. If successful, it avoids a lengthy court case and wasted costs.

If the court determines that the claimant or defendant have no reasonable grounds for bringing the case or defending it, or there has been an abuse of process or the Civil Procedure Rules have not been complied with, the court will grant the strike out application. Strike out applications may also be determined on points of law, such as the legal effect of a will or the interpretation of a contract.

Strike out applications only tend to be used in extreme cases, because its effect is to deprive parties of their legal rights. A court has wide-ranging power and can strike out all, or parts, of a case or defence. Applications should, ideally, be issued early in proceedings, although they can be used at any time.

What is the effect of a strike out application?

If a strike out application is successful, then the case, or the affected part of the case, is usually brought to an end, although it also depends on the reason the case is being struck out.

If a judgment has not been entered, a claimant may be able to start the case again, so long as it complies with orders made at the strike out hearing. This is called issuing fresh proceedings. If the case is struck out because of bad behaviour, then there will probably be a bar on any further applications. Although, again, this depends on the facts and legal grounds on which the case was struck out.

A losing party may be able to obtain permission from the court to amend their defence or particulars of claim, and in this situation, the case would continue.

If a strike out application against a claimant is successful, then it will mean they have lost either all, or part, of their claim and are likely to have costs awarded against them. If a defendant loses, the court has decided that their defence does not contain a legally arguable defence, and pending further order, judgment is likely to be entered in favour of the claimant.

Process for making a strike out application

To be successful in your strike out application, the correct process must be followed, as outlined below. 

1. Making the application

You must set out the basis on which the strike out order is sought. This may include the entire claim/defence, or part of it. You should provide a summary of the facts you intend to rely upon, together with the law, and any supporting evidence.

2. Prior to the hearing

Both parties to the case must file skeleton arguments and court bundles with the court and send these (serve) upon each other before the hearing takes place. Often, there will be one version of the bundle which has been agreed between the parties prior to the hearing.

3. The hearing

If a party faces the possibility of having their case struck out, they must have the opportunity to present their case to the court. Most hearings for strike out applications will last for less than a day with judgment given at the end of the hearing, or after a short adjournment. After the judge has handed down their judgment, arguments on costs will take place.

Are there alternatives to striking out?

Under the Civil Procedure Rules, the court has wide powers and discretion to manage cases as it seems fit. Striking out tends to be viewed as a last resort and striking out someones entire claim or defence, wholly disproportionate. Where possible, the court will avoid striking out, and look towards other options, such as giving the offending party time to fix the issue.

Other options the court might consider include:

  • Ordering one party to pay money into court
  • For claimants - reduce all or part of damages or interest, otherwise payable
  • For defendants - impose a higher rate of interest on damages
  • Order the proceedings to be stayed (paused) until an order made in the substantive proceedings is complied with
  • Impose an unless order—the strike out order comes into effect at a later date. These orders are generally used to ensure parties comply with court orders.

The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.

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