Striking out a claim or defence

Strike out applications

Most legal disputes do not reach trial and the majority are settled out of court. There are good reasons for this – litigation is inherently risky and costly and a case that goes to trial will likely mean very high legal costs and the risk of being ordered to pay not only your won costs but the other parties.

Not all cases are settled and there are also situations where a very favourable settlement might be possible at an early stage of the court process.

A potential way to achieve an early outcome is based on key situations and aspects of the civil court process which can allow 1 of the parties to secure a significant advantage or to even effectively finish the case long before trial. Deciding to try and gain a significant advantage and put severe pressure on the opponent should always involve careful consideration. The rewards are potentially very big but are also generally high risk. If you do not succeed, you can end up being on the back foot yourself.

A strike out application is an example of a high risk/reward application. For the reasons described below, an attempt at striking out is generally made at a fairly early stage of legal proceedings.

Our specialist litigation solicitors are very experienced in strike out applications, both from the applicant or respondent perspective. Shrewd and experienced use of the court rules and general tactical skill can decide the outcome of a dispute as much as the underlying law. Please do contact us to discuss how we can help you.

Applying to strike out – key aspects

• A claimant or defendant can apply – the process is intended to be available just as much to strike out a claim as a defence.
• All or part of claim or defence – when applying, the application can relate to the full claim or defence but this is not common. Far more common is application to strike out part of the defence or part of the claim.
• Different grounds – the underlying reasons and grounds for applying are quite different. In summary, application may be on the basis that claims or defences raised have no factual backing or cannot result in a legal right or defence or non-compliance with court orders or where there is an attempted abuse of process.
• Claims or defences often contain multiple legal claims or defences – there are many types of claims where a claimant is well advised to make several claims based on different legal grounds. For example, it is not unusual to see a claim where breach of contract is claimed but also negligence. Such claims are often pleaded “in the alternative”. However, seeking to claim any type of legal ground in a claim where these is no factual basis, could be an example of vexatious behaviour which constitutes abuse of process.
• Striking out for non-compliance – applications to strike out based on non-compliance with court orders is generally unlikely to result in strike out. This is because the court will generally ramp up the pressure for non-compliance with previous orders in stages. A more common way for a court to deal with non-compliance would be with what are known as unless orders, whereby unless the party complies within a set time, the court itself will then order sanctions, which may result in strike out. In other words, specific strike out applications for non-compliance may not in reality be needed.
• Maximum tactical pressure – other summary procedures may also be used at the same time as applying to strike out, for maximum pressure. It is not unusual to see an application to strike out to also include an alternative application for summary judgment.
• Typical uses – applications can be advisable in many situations or cases but they are especially common with very high value or complex cases where tactical applications, notwithstanding the high risk and potential costs order risks are considered proportionate. Another common situation is where the opponent is a litigant in person, who is not using lawyers. It is not unusual for litigants in person to complete a claim form or defence in a way which is either vexatious or simply has no legal or factual basis.

Solicitors for advice on striking out

If you are involved in a legal dispute and want to consider, at an early stage of the dispute, how you might gain a strategic advantage or end the dispute, please do get in touch. We advise on the full range of civil court processes and rules which might help your claim or defence and specifically, we can advise on the merits of any strike out application, including resisting or defending an application.