Civil Litigation Solicitors

A key principle to consider before commencing any litigation is the validity of the claim. If a claim is made that is unmistakably without merit, considered to be a “vexatious or frivolous” claim, the court has powers to cease the proceedings. These claims can be easily defended. By reliance on the Civil Procedure Rules you are able to apply to the court under Part 3.4 to strike out any claim where the other party’s “Statement of Case discloses no reasonable grounds for bringing or defending the claim”.

In addition the court may also rule to strike out pleadings on its own initiative. Under its own case management powers if the court can be satisfied that the statement of case 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))”. Whilst this tool to strike out a claim can be utilised by the Court to save time and costs with unwarranted claims this power is discretionary and rarely used.

Understandably from the litigation procedure once you receive statements of case in the initial stages, a litigator should be able to establish the legitimacy of a claim or defence. Therefore it is accepted by the courts that strike out applications can be made as soon as parties consider it appropriate or necessary to do so. This principle was evident in the recent case of Moosun & Ors v HSBC [2015] EWHC 3308 (Ch) which included claims from “Mrs. Moosun, her two infant children, and two dogs who are identified as Goldie, aged 18 months, and Diamond, aged 2 years”.

Counsel for HSBC, Miss Wilmot-Smith went on to observe that “dogs are not capable of bringing legal proceedings. Among other things, CPR Part 2.3(1) defines “claimant" as a person who makes a claim, and a dog is not a person. I also cannot see how a dog could give instructions for a claim to be brought on its behalf or be liable for any orders made against it”. Whilst this is clearly an extreme example of when the court will deem it appropriate to strike out an application it does highlight the threshold required by the courts to be satisfied.

Strike out applications are encouraged to be made early in proceedings especially when considering the escalating costs that can be incurred in pursuing the claim and following the court’s procedure and consuming the court’s valuable time and resources. It is uncommon to find strike out applications made after the directions questionnaire stage as parties will be familiar with the case and appear to have accepted the claim and defence as valid. The judge could question why a party has been complicit in allowing a claim to progress before making such an application. Special circumstances and considerations can be made when evidence of lack of merits can only be established after disclosure, however alternative applications can be made to the court in this circumstance.

Bringing an application to strike out a claim is something the courts will take into very careful consideration given the possible pitfalls and overtly drastic nature of the application and consequential result of its being granted. The decision to completely quash a claim is one based on a strict threshold. It is the responsibility of the respondent to the strike out application to prepare a detailed argument that demonstrates that their case has real prospects of succeeding.

As noted the court exercises it power to strike out pleadings sparingly and only where clearly merited. Whilst the court has discretion to utilise this power it will only consider it in certain circumstances and or alternatively as a last resort. The court may prefer to allow for a party to amend its pleadings if statement of case does not truly reflect the viability of the claim as opposed to striking it out. Alternatively the power to strike out for an abuse of court process or failure to comply with court orders may be waived for the ruling of an alternative penalty. Special consideration is made by the court when an application is made in relation to breach of an “unless order”.

One aspect to consider when making a strike out application is the issue of costs. It is common practice the Applicant seeks the Respondent to pay the costs of the application should it be granted. As litigators will have considered the case in full before proceedings to make a strike out application they will be sure of a successful outcome. Alternatively a successful application without costs claimed may result in fixed costs being awarded or on an unsuccessful strike out application can result in wasted costs.

The recent Court of Appeal case of Alpha Rocks Solicitors v Benjamin Oluwadare Alade [2015] EWCA Civ 685 concerned the issue of when the Court considered the matter appropriate to strike out.

The case of Alpha Rocks involved solicitors pursuing a client for costs which the Defendant argued to be overinflated and unjustified. The Deputy Judge sitting, Mr Prosser QC, had originally struck out two of the Solicitors’ substantial claims for their costs but allowed two smaller claims for bills to proceed. The Judge had based this decision on a comprehensive view of the case and no oral testimony. The Judge had hastily struck out these claims considering the action to be an abuse of process that compromised the legitimacy of a fair trial.

Alpha Rocks appealed this decision and Lord Justice Vos subsequently overturned the decision to strike out the claims. It was ruled that, in this circumstance it was not appropriate for Mr Prosser QC, as regarded the merits of the case, to infer or decide unilaterally that the larger bills were “fraudulently exaggerated” without any oral testimony. LJ Vos went on “I do not think the judge can properly have been satisfied that the solicitors were guilty of misconduct in relation to these proceedings which was so serious that it was an affront to the court to permit them to continue to prosecute their claims.”

From Alpha Rocks we can clearly see that strike out applications should be carefully considered as they are often subject to appeal and decisions hastily made can have serious repercussions. This will only increase costs and time spent and is not favourable to any party involved.
Each application will obviously be considered on a case by case basis and there is no guarantee that an application will be successful. It is evident from case law that courts must make cautious deliberations when presented with strike out applications given their draconian nature and absolute ruling.

About the Author: William Couchman

William Couchman is a Paralegal in the Civil Litigation department at Duncan Lewis. Through this role he has gained invaluable exposure to and experience in a wide range of litigation matters. He has assisted in a number of high value claims including breach of contract, debt recovery, breach of mandate and professional negligence.