Before proceeding to the mechanics of allocation, it should be noted that the court has power to strike out a claim (or a defence) rather than allocate it for trial. Rule 3 of the Civil Procedure Rules 1998 applies and, for example, all or part of a statement of case (or defence) can, if it discloses no reasonable grounds for bringing or defending the claim, be struck out. If, e.g., the claim is that Fred gave his friend Freda bad advice on the purchase of investments while they were having a drink in the local pub, a claim by Freda in negligence will normally be struck out because it is unlikely that in the casual circumstances of the case there is a duty of care owed by Fred to Freda. This is essential if a claim in negligence is to have a chance of success, and represents a common reason for striking out. The requirement of a duty of care is considered in detail in Chapter 23. Equally, a defence prepared without legal advice which said merely ‘I deny I owe the money’ would be struck out.
The court may, itself, strike out or it may do so on the application of a party. Where a claim is struck out, the claimant will either abandon his claim or see if it can be based on some other principle(s) of law. Where a defence is struck out, the claimant can apply to the court for judgment, though he may have to wait for up to three days if the court gives the defendant time to submit a full defence.
By CPR 3.4 the court has the power to order the whole or any part of a statement of case to be struck out. It can also be used by the court “of its own initiative”.
CPR 3.4 provides that:
Again, an application to strike out application will usually be pursued without evidence (ie. a statement of case) on the submission that the claim or defence “does not disclose a cause of action” (para (a)). Statement of case, which are unnecessarily prolix, and settled by litigants in person are often the subject of strike out applications. It will often be the case that an application will contend “assume all the facts in the statement of case are true, then we say there is still no reasonable cause of action”. In other words, even if a party establishes at trial every fact for which it contends, and it still loses, then such a case is suitable to be struck out.
Often, it will be “plain and obvious” that the statement of case discloses no cause of action. For example, where in a claim under a contract, the Claimant admits in his pleading that there is no contractual nexus between the Claimant and Defendant. A ground for a strike out is that is the cause of action, as pleaded, not one known to English law. Applications to strike out should normally be made as soon as possible in the litigation. The court is unlikely to be sympathetic to an application to strike out made at the beginning of trial, the expense of disclosure and statements having been prepared and served.
There is often a significant overlap between a strike out application and a summary judgment application (and they are often made in conjunction).
It is sometimes the result of a strike out application, that once a defect in a statement of case has been identified, the court will allow an amendment as opposed to striking out the claim.
This is a power which any court of justice must possess to prevent misuse its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.
Where the Court takes the view that “this litigation ought not to have ever seen the light of a Court room” or the legitimate process of the law is being abused e.g. a claim is being pursued which has already been determined by a court of competent jurisdiction. Where the issues raised in an earlier claim are identical to those raised in a later claim, there is an absolute bar, based on an “issue estoppel”, on the latter proceedings unless fraud or collusion is alleged (Arnold v National Westminster Bank (1991) 2 AC 93). If an abuse of process to raise a second claim an issue which should have been raised against someone who is a party to earlier proceedings – this is known as a Henderson estoppel following the old case of Henderson v Henderson (1843) 3 Hare 100).
Where, on a cost benefit analysis, there can be nothing gained in the litigation, but it is being used simply to “harass” the other party, then such a claim is ripe to be struck out.
A claim that is issued after the expiry of the limitation may be struck out as an abuse of process (alternatively, the limitation point may be determined as a preliminary issue). Starting a claim with the intention of pursuing it would also be an abuse of process. Advancing a claim making serious charges involving bad faith without adequate particulars also be liable to be struck out as an abuse (GRI International Ltd v Synergy Classic (2011) EWHC 3166). Where a party’s conduct (such as poultry or presenting fraudulent evidence) is a damages the integrity of the case being presented that its continuation would be an affront to justice, it may be struck out an abuse of process (Masood v Zahoor (2009) EWCA Civ 650).