Strike outs and summary judgments

This is how CPR PD 3.1.2 introduces r.3.4 and r.24: 'The rules give the court two distinct powers. Rule 3.4 enables the court to strike out the whole or part of a statement of case which discloses no reasonable grounds for bringing or defending a claim (rule 3.4(2)(a)), or which is an abuse of the process of the court or otherwise likely to obstruct the just disposal of the proceedings (rule 3.4(2)(b)). Rule 24.2 enables the court to give summary judgment against a claimant or defendant where that party has no real prospect of succeeding on his claim or defence'.

Every defended case comes before a procedural judge when allocation questionnaires are (or are not) filed. As a general rule, any claim or defence which appears to be irrational, incomprehensible or minimal is likely to be referred by court staff, after issue or filing.

The evidence on which a party would wish to rely is not tested by r.3.4(2). In spite of the disappearance of many of the old and strict rules of pleading, there is no substitute for the clear identification in a claim or defence of a reasonable ground for bringing or defending proceedings and the remaining procedural requirements (for example, CPR and PD 16 dealing with the contents of a claim form and particulars of claim) must be complied with. Erring professionals should expect to receive less sympathy than might be shown towards a non-represented litigant. If the litigant's statement of case identifies a recognisable cause of action which the court has jurisdiction to hear, that may be sufficient to pass muster, or the judge may allow amendment, or even, in a case management context, direct that the claim is to proceed on a particular basis which they have identified.

Hastily prepared particulars of claim may fall foul of the CPR, or fail to provide vital information, such as comprehensible particulars of the negligence alleged. Word processing errors in last-minute claims, which are not checked competently before being sent off to court, can and do result in substantial claims in negligence. The only safe course for tardy claimants is to set out the claim with as much attention to the detail, rules and the law as is possible, then to issue and serve in time, together with an application to extend time in respect of any missing links, such as a medical report or schedule of financial losses. As for defences, those amounting to nothing more than a bare denial of the claim will be given short shrift. The solicitor must do everything he can to flesh out the reasons why his client disputes liability or quantum.

While CPR 3 is of universal application, CPR 24 cannot be used in possession proceedings against mortgagees, tenants of residential property, or former tenants holding over under the Rent Act of 1977 or the Housing Act 1988. There are other, rare exclusions, but subject to them, CPR 24 is of more use to practitioners, as opposed to judges, than CPR 3, as it allows for a limited testing of the evidence to consider whether a claimant or defendant has any real prospect of success in relation to the whole of a claim, or any particular issue. So, while it will usually be possible to dress up a weak case in such a way as to escape striking out under r.3, CPR 24 permits an examination of evidential weaknesses which may enable the other party to obtain summary judgment for the challenging party. This is, of course, in addition to the consideration of determinative points of law or interpretation, disposing of one or more of the relevant issues.

The procedure under CPR 24 is straightforward, but not invariable. The general requirement that the defendant must have at least filed an acknowledgment of service does not apply where the claim is for the specific performance of a contract relating to real property or the return of a deposit paid under such a contract. Further, in these cases, the service period is cut to four days. However, applications with the Crown as defendant cannot be made until the expiry of the time allowed by the rules for serving a defence. The court has no power to vary these specific requirements (CPR 24.4(1)(ii)).

The close connection between rr.3 and rr.24, in the context of the case management duty, is demonstrated in the cases of Taylor v Midland Bank Trust Co. Ltd [1999] All ER (D)831 and O'Donnell v Charley Holdings [2000] Lawtel, 14 March, CA which make clear that a court may consider applications under those rules simultaneously, and may properly enter summary judgment under CPR 24 not only where no specific application has been made under that rule but even after an application under r.3 has been heard and dismissed. The endorsement of such judicial proactivity by the Court of Appeal will come as no surprise to civil practitioners, but may alarm non-specialists and litigants in person, who will be deprived of their day in court. The carefully explained judgement is likely to be of cold comfort.

On the other hand, even where the court is satisfied that a party has no reasonable prospect of success, the claim should be allowed to proceed to trial where there are disputed issues of fact, requiring cross-examination of witnesses, or where the claim itself is complex.

An application for summary judgment is not intended to be a mini-trial, and if the respondent to the application has enough ammunition to make the judge wary, he may live to fight again, but may be required to comply with conditions, such as a payment in to abide the event or compliance with a specific direction.