Strike out, stay and discontinuance

Not all cases go all the way to trial. The court has the power to strike out a statement of case if it shows no grounds for bringing or defending a claim. Alternatively, a claimant can decide to discontinue the claim at any time. Stayed claims are dormant cases where neither party can take any action other than applying to lift the stay.
Strike out

Strike out

strike outThe court has the power to strike out all or part of a statement of case, either on application or of its own initiative. The court can exercise this power if:

  • the statement of case discloses no reasonable grounds for bringing or defending the claim;
  • the statement of case is an abuse of process; or
  • there has been a failure to comply with a court order or a rule or practice direction.

CPR 3.4 refers to the court’s power to strike out a statement of case.

PD 3A gives examples of statements of case which may be struck out.

With regards to the claimant’s particulars of claim:

1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):

(1) those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,

(2) those which are incoherent and make no sense,

(3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.

With regards to a defence:

1.6 A defence may fall within rule 3.4(2)(a) where:

(1) it consists of a bare denial or otherwise sets out no coherent statement of facts, or

(2) the facts it sets out, while coherent, would not even if true amount in law to a defence to the claim.

1.7 A party may believe he can show without a trial that an opponent’s case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the construction of a document). In such a case the party concerned may make an application under rule 3.4 or Part 24 (or both) as he thinks appropriate.

A case can also be struck out under CPR 24. Summary judgment would follow if a defence is struck out.

Grounds for summary judgment

24.2  The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –

(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.

The courts use the power to strike out sparingly. Strike out is seen as a last resort and where a party’s case is defective, or they have not complied with an order, there are other alternatives to deal with the situation rather than strike out.

Strike out is not confined to defective statements of case. The court can also strike out a statement of case and enter judgment for failure to comply with a rule or order. The court will have to consider all the circumstances before striking out. Another reason for strike out could be non-payment of court fees.

Unless orders

An unless order is a suspended sanction. The court makes an order that a party complies with a rule or order within a certain time, otherwise their claim or defence will be struck out. It is possible to apply to extend the deadline imposed by an unless order.

In cases where an unless order has been made, once the deadline expires, strike out takes effect without further orders.

Relief from sanctions

It is possible to apply for relief from sanctions to prevent a strike out for failure to comply with a rule or order. However, to be successful, the application has to be made promptly and it must be supported by evidence of the reasons for non-compliance.

Discontinuance

Discontinuance

discontinuanceA claimant may decide not to pursue the claim, for example because their chances of success and/or recovery of cots are not very high. A claimant may discontinue a claim at any time during the process.

The claimant has to file a notice of discontinuance with the court and send it to you as the defendant. The notice of discontinuance brings proceedings to an end on the date it’s served on you.

A claimant who discontinues is liable for your costs unless the court orders otherwise, however, this does not usually apply in small claims cases.

An example of a creditor discontinuing a claim would be a debt purchaser who is unable to supply the evidence (documents) relied on for their case and knows they won’t be able to comply with an order of the court to supply those documents, either at the disclosure stage for fast track and multi track cases or at the pre-hearing directions stage for small claims cases.

When a claim is discontinued after a defence has been filed, the claimant can only bring new proceedings for the same case  with permission from the court.
Stays

When a case is stayed, no further steps can be taken with regards to the claim other than to apply to lift the stay. Stays may be agreed by consent between the parties, or by the court’s own initiative. When a case is stayed, either party can apply to the court to lift the stay.

There are various reasons why cases may be stayed. These can be determined by the court, for example:

  • to allow for settlement;
  • Tomlin orders that allow proceedings to be stayed on the terms set out in the schedule;
  • pending other proceedings (counterclaims, criminal proceedings, insolvency or resolution of test cases); and
  • to enforce compliance with orders, such as payment of costs.

Cases can also be stayed due to inaction on the part of the claimant, for example where there has been neither a defence nor an admission filed in six months and the claimant has not requested judgment. A more common example is when a claimant does not respond to a defence. A claimant has 28 days to respond to a defence stating their intention to proceed with (or otherwise discontinue) the case. If they do not respond, the claim will be stayed.

When a claim is stayed because the claimant has not responded to a defence, the defendant is not informed.
If after filing a defence you do not hear anything further from the claimant or the court in more than a month, you should contact the court to find out whether the case has been stayed.
A stayed case is not concluded. The claimant can apply to lift the stay and continue with proceedings at any time. This is a strategy commonly used by some creditors while they attempt to obtain documents to back up their claims.
If your claim has been stayed for some time, you may consider apply for strike out in order to bring the case to conclusion.
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