Unit 9 Strike Out and Summary Judgment Flashcards
When may the court strike out a statement of case?
(2) The court may strike out a statement of case if it appears to the court—
a. that the statement of case discloses no reasonable grounds for bringing or defending the claim;
b. that 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. that there has been a failure to comply with a rule, practice direction or court order.
What order may the court make if it strikes out a statement of case?
When the court strikes out a statement of case it may make any consequential order it considers appropriate (e.g. claimant to pay defendant’s costs.
What happens where a statement of case has been struck out and costs ordered (CL to pay D) and the CL brings another almost identical claim?
the court may, on the application of the defendant, stay that other claim until the costs of the first claim have been paid.
Case law: Where proceedings have been dismissed with costs it is an abuse for an assignee of the claimant to commence or continue fresh proceedings in respect of the same matter without paying the costs previously awarded against the assignor. The court may strike out vexatious applications in an action and may, in addition, make an order prohibiting further applications being made without the court’s permission.
What does “statement of case” mean?
Statement of case means “a claim form, particulars of claim where these are not included in the claim form, defence, Pt 20 claim, or a reply to a defence; and includes any further information given in relation to them voluntarily or by court order
How is strike out defined in the WB Glossary?
“Striking out means the court ordering written material to be deleted so that it may no longer be relied upon”. This rule enables the court to strike out statements of case in whole or in part and then make consequential orders.
Can a claim be struck out following judgment?
No. There is no power to strike out a statement of case or a claim after judgment has been given in the claim.
What should the court consider when deciding whether to strike out?
Statements of case which are suitable for striking out on ground (a) include those which raise an unwinnable case where continuance of the proceedings is without any possible benefit to the respondent and would waste resources on both sides.
A claim or defence may be struck out as not being a valid claim or defence as a matter of law. However, it is not appropriate to strike out a claim in an area of developing jurisprudence, since, in such areas, decisions as to novel points of law should be based on actual findings of fact. A statement of case is not suitable for striking out if it raises a serious live issue of fact which can only be properly determined by hearing oral evidence. An application to strike out should not be granted unless the court is certain that the claim is bound to fail.
Can amendments prevent striking out?
Yes. Where a statement of case is found to be defective, the court should consider whether that defect might be cured by amendment and, if it might be, the court should refrain from striking it out without first giving the party concerned an opportunity to amend.
What is “abuse of process”?
“using that process for a purpose or in a way significantly different from its ordinary and proper use”
What is the general principle regarding statements of case that are an abuse of process?
The court has power to strike out a prima facie valid claim where there is abuse of process. However there has to be an abuse, and striking out has to be supportive of the overriding objective. It does not follow from this that in all cases of abuse the correct response is to strike out the claim. In a strike-out application the proportionality of the sanction is very much in issue
What is “res judicata” and what is its relation to striking out statements of case?
The court’s power to strike out abusive proceedings is often employed to give effect to principles relating to res judicata, a portmanteau term which is used to describe a number of different legal principles including:
• cause of action estoppel (the prohibition on the re-litigating of a cause of action held to exist (or not exist) in earlier proceedings);
• issue estoppel (the prohibition on re-litigating an issue decided in earlier proceedings even though in respect of a different cause of action); and,
• the Henderson principle, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones
Can delay be categorised as an abuse of process when striking out?
Delay, even a long delay, cannot by itself be categorised as an abuse of process without there being some additional factor which transforms the delay into an abuse. For example, a claim was struck out where delays were caused by a claimant acting in wholesale disregard of the norms of conducting serious litigation and doing so with full awareness of the consequences.
What can the court do where a statement of case is badly drafted, instead of striking it out?
The circumstances may warrant the making of an “unless order”, i.e. an order directing that a badly drafted statement will be struck out unless, by a stated date, the party at fault provides a clear and concise statement of their case.
If compliance is not met by the given date, the strike out “will be automatic and no further order of the court will be required”
Can the court make summary judgement on just part of a claim?
Yes. The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue.
What are the criteria that the court must be satisfied to grant summary judgment?
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.
“no real prospect of succeeding/successfully defending” summary (summary judgment)
• i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success;
• ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable;
• iii) In reaching its conclusion the court must not conduct a “mini-trial”;
• iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents;
• v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial;
• vi) The court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case.
• vii) if the respondent’s case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant’s case is bad in law, the sooner that is determined, the better.
In some cases, the disputed issues are such that their conclusion by settlement or trial largely depends upon the expert evidence relied on by each side. In such cases, an application for summary judgment will usually be inappropriate unless it is made after the exchange of the experts’ reports and, in most cases, after the experts have discussed the case and produced a joint statement.
To what standard are cases held to show “[a/no] real prospect of succeeding/successfully defending” summary
- i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success;
- ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable;
“no other compelling reason [for] a trial” summary (summary judgment) (read)
Easiest to illustrate with case law examples:
• The fact that the claimant company was in liquidation was a compelling reason to refuse summary judgment where there were latent claims and cross-claims between the parties.
• Summary judgment for the claimant against the first defendant was held to be inappropriate where similar issues remained to be determined at a trial as between the first defendant and other parties. In all the circumstances that constituted a “compelling reason” not to enter summary judgment.
• The Court of Appeal upheld a refusal to rule upon a short point of construction of the terms of an insurance contract where those terms were said to be standard terms which were widely used in the insurance market.
Where does the burden of proof lie in applying for summary judgment?
The overall burden of proof rests on the applicant to establish that there are grounds to believe that the respondent has no real prospect of success and that there is no other reason for a trial. The applicant must
a. identify concisely any point of law or provision in a document on which they rely, and/or
b. state that the application is made because the applicant believes that on the evidence the respondent has no real prospect of succeeding on the claim or issue or (as the case may be) of successfully defending the claim or issue to which the application relates, and in either case state that the applicant knows of no other reason why the disposal of the claim or issue should await trial.
The essential ingredient is the applicant’s belief that the respondent has no real prospect of success and that there is no other reason for a trial.
If the applicant discharges their burden of proof in an application for summary judgment what does this mean for the respondent?
If the applicant for summary judgment adduces credible evidence in support of their application, the respondent becomes subject to an evidential burden of proving some real prospect of success or some other reason for a trial. The standard of proof required of the respondent is not high. It suffices merely to rebut the applicant’s statement of belief. The language, (“no real prospect … no other reason …”) indicates that, in determining the question, the court must apply a negative test. The respondent’s case must carry some degree of conviction: the court is not required to accept without analysis everything said by a party in his statements before the court.
What is the effect of set off or counterclaim on summary judgment?
A claimant may be prevented from obtaining summary judgment, in whole or in part, if the defendant can show that he intends to raise a set off or counterclaim which raises a triable issue, i.e. has some prospect of succeeding.
In some cases a set off will not prevent the claimant obtaining a summary judgment which is enforceable immediately.
If the defendant raises a triable counterclaim which cannot be deployed as a set off, the court may grant summary judgment to the claimant but with a stay of enforcement pending the trial of the counterclaim. If the claim value overtops the alleged value of the counterclaim, the stay of enforcement may be made conditional upon the defendant paying the difference by a specified date. Alternatively, the stay of enforcement may be limited to the alleged value of the counterclaim.
Is it the claimant or the defendant who can be awarded summary judgement in ANY type of proceedings?
Defendant.
1. The court may give summary judgment AGAINST a claimant in any type of proceedings.
2. The court may give summary judgment AGAINST a defendant in any type of proceedings except—
a. proceedings for possession of residential premises against—
I. a mortgagor; or
II. a tenant or a person holding over after the end of his tenancy whose occupancy is protected within the meaning of the Rent Act 1977 or the Housing Act 1988 and;
b. proceedings for an admiralty claim in rem.
In what cases is a claimant prevented from being given summary judgment?
- The court may give summary judgment AGAINST a defendant in any type of proceedings except—
a. proceedings for possession of residential premises against—
III. a mortgagor; or
IV. a tenant or a person holding over after the end of his tenancy whose occupancy is protected within the meaning of the Rent Act 1977 or the Housing Act 1988 and;
b. proceedings for an admiralty claim in rem.
In what cases is a defendant prevented from being given summary judgment?
NONE. The court may give summary judgment AGAINST a claimant in any type of proceedings.
