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SANCTIONS (Striking Out Statement of Case CPR 3.4
If it appears to the…
SANCTIONS
Striking Out Statement of Case CPR 3.4
If it appears to the court
a) that the statement of case discloses no reasonable grounds for bringing/ 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 proceedings OR
c) that there has been a failure to comply with a rule, PD or court order.
(a) and (b) covers statements of case which are unreasonably vague, incoherent, vexatious, scurrilous/ obviously ill founded and other cases which dont amount to a legally recognizable claim/ defence. This power can be exercised by a judge on their own initiative at the stage of issuing a claim so that D will be sparred needless expense in having to initiate striking out proceedings.
(c) - covers cases where abuse lies not in the statement of case itself but the way the claim/defence has been conducted. Strike out can happen even if there is nothing in the rule, PD or court order breached which specified that this might happen as a consequence of the breach.
Ultimate qs: Proportionality
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If court has struck out a statement of case, the claimant has been ordered to pay the costs and before paying the costs to D, the C starts another proceedings against the same D, arising out of the same fact/ substantially the same facts
the court may, on the application of the D , Stay the other claim until the costs of the first claim have been paid.
If the court strikes out a C's statement of case and it considers the claim is totally without merit,
- the court must record that fact and
- the court must at the same time consider whether it is appropriate to make a civil restraint order
3.4.1 - Court may exercise the power immediately before trial or even during the course of trial (can do so whether or not the application was made before trial and adjourned to be dealt with at the trial)
There is no power to strike out a statement of case / claim after judgement has been given
While many application can be made without evidence in support, the applicant should consider whether facts needs to be proved and if so, whether any evidence should be filed and served.
Applications should be made ASAP and before allocation if possible.
If application is made by D against the C's statement of case,C cannot obtain a default judgement until the application has been disposed of.
If an application is made, the court cannot refuse it on a reading of the papers unless it first hears oral argument on behalf of the applicant.
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Judgement without trial after striking out CPR 3.5
Applies where court makes an order which includes a term that the statement of case shall be struck out if the party does not comply with the order AND
the party against whom the order was made does not comply with it.
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A party may obtain judgement with costs by filing request for judgement if
- the order relates to the whole statement of case, AND
- where the party wishes to obtain judgement is the C, the claim is for
a) a specified amount of money
b) an amount of money to be decided by the court
c) delivery of goods where the claim form gives D the alternative of paying their value
(Will be judgement requiring D to deliver goods or pay value of goods as decided by the court)
OR
d) any combination of these remedies
If any of the requirement above not met, then can only obtain judgement under Part 23
- The request must state that the right to enter judgement has arisen because the court's order has not been complied with
Sanctions have effect unless defaulting party obtains relief CPR 3.8
- If sanction is payment for costs, the party in default may only obtain relied by appealing against the order for costs
- If a rule/ PD / court order requires a party to do something within a specified time and specifies the consequences for failure to comply, the time for doing that act may not be extended by agreement of the parties
EXCEPT in cases where there is prior written agreement between the parties, then can extend up to 28 days provided that the extension dont put at risk any hearing date.
Power of Court to rectify matters when there is error of procedure CPR 3.10If there has been an error of procedure such as a failure to comply with a rule/PD.
- the error does not invalidate any step taken in the proceedings unless the court so orders AND
- the court may make an order to remedy that order.
UNLESS ORDERS
- Unless by a particular date a party complies with a procedural order made by the court, their statement of claim shall be struck out and their claim dismissed. The striking out is automatic, without further order from the court.
- In making an Unless Order, the judge needs to consider carefully whether the sanction is appropriate in all circumstances of the case.
- The court retains jurisdiction to grant the defaulting party relief if an application is made.
- The defaulting party's opponent may obtain judgement pursuant to CPR 3.5 (judgement without trial after striking out). This can be done via a filing of request for a judgement but otherwise, they must make an application pursuant with Pt 23 if they wish to obtain judgement under 3.5.
-- - Court when hearing such applications is limited to deciding what order should be made properly to reflect the sanction which has already taken effect. The operation of the sanction does not lie in the discretion of the courts, as that is only for court to decide when there is an application under 3.8 (relief from sanctions).
X Reasonable Grounds
- Claims which set out no facts indicating what the claim is about
- Claims which are incoherent and makes no sense
- Claims which contain a coherent set of facts but even if those are true, do not disclose any legally recognizable claim against the D
Defence may be striked out if it consists of a bare denial or otherwise sets out no coherent statement of facts or if the facts are set out, while coherent, would not even if true amount in law to a defence to the claim.
include raising an unwinnable case where continuance of the proceedings is without any benefit to the respondent and waste resources on both sides.
Not appropriate to strike out claims in areas of developing jurisprudence since in such areas, decisions as to novel points of law should be based on actual finding of facts.
Not appropriate if there is a serious live issue of fact which can only be properly determined by hearing of oral evidence.
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If statement of case is found to be defective, court should consider whether it can be cured by ammendment. If yes, court should refrain from striking out without first giving party concerned an opportunity to amend.
Art 6(1) - Right to access a court
- Need to be careful especially if exclude an entire category of claims from the courts or confer blanket immunities from civil liability on particular groups.
- eg Osthman: stiking out on the basis that it was contrary to public policy for police under DOC was a breach of Art 6(1). -- Blanket Immunity
- Later cases: Art 6(1) does not prevent the striking out of claims in appropriate cases since it applies only to genuine and serious disputes about civil rights and obligations, although a claim submitted to a tribunal for determination must be presumed to be serious and genuine.
A statement of case which discloses no reasonable ground may also be an abuse of court's process and the opposing party may be entitled to summary judgement under Pt 24.
Abuse of Court's Process
Using the process for a purpose or in a way significantly different from its ordinary and proper use.
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Striking out of a valid claim should be the last option. If the abuse can be addressed by a less draconian course, it should be.
Not a abuse of process for a C to bring an individual claim where there is a group litigation order in place. It would be disproportionate to strike out claim as there was alternative steps available to protect the D.
Res Judicita - Attempting to re-litigate issues which were raised, or should have been raised in earlier proceedings
- Rule applies not to matters which were decided by the court, but to matters which might have been decided but were not.
- Rule applies not just to subsequent litigation between the same parties, but also to parties to the subsequent proceedings who were not joined as parties to the earlier proceedings..
- It is a rule of public policy based on desirability. Litigation should not drag on forever and the D should not be oppressed by successive suits when one would do.
- Whether relitigation oof a decided issue is an abuse of process depends upon all the circumstances. A broad merits-based judgement should be adopted, taking into account all public and private interests involved and all the facts of the case.
Collateral attacks upon earlier decisions
- Where a party mounts an attack on a final decision adverse to them which was made by a court of competent jurisdiction in which the person had full opportunity of contesting the decision in the court in which it was made..