Striking at the roots

In his report, 'Access to Justice', Lord Woolf MR advocated the need to maintain the court's powers to strike out a statement of case (or any part of a statement of case) as an effective sanction against parties who failed to comply with court directions. Having such a powerful tool at the disposal of the courts would, in his opinion, promote effective case management and would ultimately further the overriding objective.

Despite being a fundamental aspect of the Civil Procedure Rules, the courts' powers of strike out have not been widely written upon. This article will attempt to shed further light on the concept of strike out and will explore how the courts have exercised their powers.

The court's powers of strike out are set out in part 3.4(2) (and the accompanying practice direction) of the Civil Procedure Rules. Pursuant to part 3.4(2) a court may, of its own initiative or on application from one of the parties to a case, strike out a statement of case (or any part of it) if it appears to the court that:

(a) the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

(c) there has been a failure to comply with a rule, practice direction or court order.

Practice direction 3.4 paragraph 1.4 sets out examples that illustrate when particulars of claim may be struck out. These (non-exhaustive) examples include claims which fail to set out facts about the claim and claims which are incoherent and don't make sense. Paragraph 1.6 of the same practice direction also sets out examples of when a defence may be struck out '“ for example where a defence is a bare denial of the claim.

Failure to disclose reasonable grounds

A recent example of the court striking out a statement of case for failure to disclose reasonable grounds for bringing a claim can be taken from the High Court case of Ikea Limited and ors v John Brown and ors [2009] EWHC 955 (Comm). In this case the sixth defendant attempted to bring a counterclaim against the claimants in which he alleged that the claimants had maliciously prosecuted him in criminal and civil proceedings. The claimants made an application to strike out the counterclaim pursuant to part 3.4(2)(a).

In considering the claimant's application, Teare J analysed the allegations which were pleaded in the counterclaim in the light of the facts of the case. He also considered whether the allegations showed a reasonable cause of action against the claimant.

Following this careful analysis, Teare J found that the counterclaim gave an incomplete description of the allegations made against the claimant and that there had been no attempt by the defendant to identify which part of the allegations made by the claimant against the defendant were false.

Teare J concluded that the allegations raised by the defendant in his counterclaim were incoherent and made no sense and therefore failed to disclose a reasonable cause of action. Consequently, the defendant's counterclaim was struck out.

Abuse of the court's process

A claim may fall within part 3.4(2)(b) where it is vexatious, scurrilous or obviously ill-founded (practice direction 3.4 paragraph 1.5). (As with Rule 3.4(a), the examples given in paragraph 1.5 are merely illustrations of when a court may exercise its powers under part 3.4(b).)

The factors a court will take into account when considering an application to strike out a statement of case for want of an abuse of process was considered in the recent Court of Appeal case of Walbrook Trustees (Jersey) Ltd & ors v Fattal & ors [2009] EWCA Civ 297. In this case, the Court of Appeal considered a specific type of abuse of process, namely the bringing of successive actions by the claimants against the defendants in respect of the same subject matter where a claim could have been raised in earlier proceedings.

In Walbrook, the Court of Appeal held that a decision by a trial judge as to whether an abuse of process did or did not exist is one of evaluation and balancing of the relevant factors. Arden LJ, delivering the leading judgment, argued: 'A party cannot be criticised for not pleading something that would have been struck out, and so it cannot be an abuse of process for a party not to enforce his rights until he has the information that will prevent his case from being struck out.'

The fact that a subsequent claim was made against the defendants did not mean that this amounted to an abuse of process. It was only fair, in the view of the court, that the claimants were allowed to bring a subsequent claim when they had the necessary information to enforce their rights.

Further, on the facts of Walbrook, the defendants' failure to have an earlier claim struck out on the grounds that it amounted to an abuse of process was a clear indication that the defendants agreed to have the issue tried at trial.

The court also found that the conduct of the claimants in making the subsequent claim was a relevant factor in considering whether there had been an abuse of process. The fact that the subsequent claim was made without delay was an indication that there had not been an abuse of process. Therefore, the trial judge's order to strike out the subsequent claim was set aside by the Court of Appeal.

Failure to comply

The practice direction to part 3.4 does not provide examples of when the court may exercise its powers under part 3.4(c) and there is no reason why it should as it is clear from the wording of part 3.4(c) that a court will exercise its powers of strike out if a party fails to comply with any rule, practice direction or court order.

This is a reflection of Lord Woolf MR's warning in 'Access to Justice', where he stated: ''¦where parties do fail without reasonable excuse to comply with the court's directions, particularly where they do so more than once, the court must be willing to exercise appropriate discipline over them'.

The case which provides guidance as to part 3.4(c) is Biguzzi v Rank Leisure plc [1999] 1 WLR 1926. Here, the Court of Appeal dealt with the issue of the court's powers to strike out a statement of case on the basis that the claimant had failed to comply with court orders and relevant procedural rules.

Delivering the leading judgment, Lord Woolf MR stressed the importance of complying with time limits under the CPR as compared with the old rules. He went on to stress that, despite the fact that the court had the power to strike out a statement of case, this should not be the court's initial approach as there will be alternatives which will enable a case to be dealt with justly. However, if delays are caused by the parties then the court should not allow such behaviour to go unmarked and it should indicate to parties that such behaviour will not be tolerated.

Lord Woolf MR concluded that striking out must produce 'a just result' and in trying to reach such a result the court was not confined to the relative positions of the parties.

Considering the powers of strike out

From a brief analysis of the above authorities, one may take the following points of guidance when considering the court's powers of strike out:

• The courts will be concerned with ensuring that cases are managed justly and that consequently the overriding objective is being furthered at all times. This will be the starting point for the courts when considering whether to strike out a statement of case.
• Where there have been delays or breaches of court orders or procedural rules and where there are no alternatives then the courts are likely to, in order to achieve justice, strike out a statement of case.
• All statements of case should be drafted carefully, taking into account issues of fact and law. Failure to do this may result in either the court, on its own initiative, striking out a statement of case (or part of it) or the other party taking a tactical step and applying to the court for an order to strike out.
• In respect of an abuse of process by one of the parties, it is not enough to simply show that the claim could have been brought in the earlier proceedings. As Lord Bingham argued in Johnson v Gore Wood & Co [2002] EWHC 776 (QB): 'It is '¦ wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach'¦'
• A court which has been presented with an application to strike out for an abuse of process must essentially consider two competing interests: the public interest in ensuring that there is finality in litigation (and that a party should not be 'stung' twice in the same matter) and the private interest of the claimant who is seeking access to the courts. In performing this exercise, the courts will look closely at the conduct of the party bringing the subsequent proceedings in respect of the same matter and will take into account how quickly that party reacted in bringing those proceedings after discovering the new facts which gave rise to the subsequent claim.

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