How to get rid of weak claims against you or your business without incurring the costs of going to trial

Most people will wish to avoid the risk and costs of litigation wherever possible, but in a litigious world, any business can find itself facing claims.

Rising court fees and other costs have led to a larger number of claims being pursued by litigants in person (that is, parties acting without lawyers) in recent years.

One consequence of this is that some claims that would have been filtered out by claimant lawyers as having no merit are now being issued by parties acting without legal advice. That can lead to a risk of huge bills and wasted management time for the business defending the claim.

It is little consolation that the claim is likely to be defeated at trial, particularly if the prospects of recovering costs are limited. For this reason, it is often worth considering making an immediate effort to strike out weak claims long before the case reaches trial. This note sets out the main grounds on which the court will make such an order.

Under what circumstances will a court strike out a statement of case or part of a statement of case?

A statement of case can potentially be struck out in the following circumstances:

  1. There is no reasonable basis for bringing or defending the claim
  2. There is an abuse of process
  3. To enforce compliance with a rule, practice direction or order
  4. In accordance with the Court’s inherent jurisdiction

No reasonable grounds for bringing or defending the claim

If the court believes that there are no reasonable grounds for bringing or defending the claim, then that particular statement of case is liable to be struck out. However, the court will be more reluctant to strike out any claim or defence when it relates to developing law or where there is a serious issue of fact to be decided.

Abuse of process

Any abuse of process is considered to be utilising the court process for a purpose that is considered different from its ordinary use. There are many examples which have been decided throughout case law which amount to abuse of process. These may include issuing proceedings which the claimant has no intention of pursuing; re-litigating issues which have been decided by a court and litigating extremely low value claims.

Enforcing compliance with a rule, practice direction or order

The court could potentially strike out a statement of case for failure to comply with a Civil Procedure Rule (CPR), Practice Direction of the CPR or a court order. The fact that the other side have delayed will not in itself be a deciding factor but may be something to take into account when considering an application to strike out.

The Court’s inherent jurisdiction

If there is a particular case that does not fit any of the above categories, the court can still strike out the statement of case using their discretion.  However, this power is to be used only for obvious and clear cut cases. If the case involves a prolonged and serious argument, then it is unlikely that any court will exercise their discretion to strike out.

Is this something to be used regularly?

In short, no. The courts use their powers to strike out sparingly and it is very much considered an option of last resort. An application to strike out can lead immediately to judgment being granted to the other side, so the courts treat it with caution. There are other avenues that can be explored first before seeking the option of having the statement of case struck out completely.

That said, the threat of a strike out application is more likely to pressure the other side to accede to your request, so as a tactical weapon, it can be extremely useful.

For further advice on strike out applications, please contact the litigation team.