Strike Out And Summary Judgment

Litigation is a notoriously expensive and lengthy process, however, parties to litigation have options available to apply to the Court to make an early decision if they think their opponent's case has no merit.

One of these options is applying to Strike Out your opponent's statement of case.

Strike out of Statement of Case

CPR 3 grants the Court permission to manage how a case is handled. Under CPR 3.4, one of these permissions is the ability to Strike Out a statement of case (Particulars of Claim, Defence or Reply) in whole or part if:

1. The statement of case discloses no reasonable grounds for bringing or defending the claim (CPR 3.4 (2)(a));
2. The statement of case is an abuse of the Court's process or is otherwise likely to obstruct the just disposal of proceedings (CPR 3.4 (2)(b);
3. Failure to comply with a rule, Practice Direction of Court Order.

So, what is the affect of a claim being struck out? The statement of case can no longer be relied upon in the proceedings, and the other party is awarded judgment in their favour.

However, Courts do not exercise this power easily. When making these decisions, the Courts are conscious of the Overriding Objective and the fact that parties should have access to justice.

The burden of proof is on the applicant to prove that the grounds for striking out the claim exist. The respondent will then have an opportunity to explain to the Court why striking out their statement of case would be inappropriate.

For more information, read the excellent, more detailed article by Bindman's on this topic: https://www.bindmans.com/wp-content/uploads/2024/02/45637_strike-out-and-summary-judgment.pdf

Summary Judgment

Summary Judgment is a procedure available to all parties to litigation, that the Court can use to dispose of all or a part of a case without a trial, which again saves on time and costs.

CPR 24 set out the procedures by which the Court may decide a claim or issue without a trial.

CPR 24.3 states the Court can award a Summary Judgement if:

• It considers that:
  1. The Claimant has no real prospect of succeeding in the claim or issue;
  2. The Defendant has no real prospect of successfully defending the claim or issue.
• There is no other compelling reason why the case or issue should be disposed of at trial.

Proving that a case has no prospect of success is not a 'one size fits all', it is subjective and varies from case to case. Similarly to Strike Out, the burden of proof is on the applicant.

What is the process for applying for Strike Out and/or Summary Judgment?

1. You must make an Interim Application to the Court by using an N244 form – a copy of which can be downloaded here: https://www.gov.uk/government/publications/form-n244-application-notice;
2. A witness statement must be provided to the Court, setting out the circumstances in which a Strike Out of Statement of Case or Summary Judgment should occur. An effective witness statement should tell the story of the dispute, starting from the engagement of the parties and including key dates and events;
3. A draft order must also be provided, setting out exactly what is being sought by the applicant;

Finally, a costs schedule must be provided, accurately setting out the costs the have been incurred in preparing the application and attending a hearing. The Respondent must also provide a costs schedule. The N260 form can be found here: https://www.gov.uk/government/publications/form-n260-statement-of-costs-summary-assessment