PRACTICE DIRECTION 3A – STRIKING OUT A STATEMENT OF CASE
This Practice Direction supplements CPR Rule 3.4
Contents of this Practice Direction
|Claims which appear to fall within rule 3.4(2)(a) or (b)|
|Defences which appear to fall within rule 3.4(2)(a) or (b)|
|Applications for orders under rule 3.4(2)|
|Applications for summary judgment|
1.1 This practice direction sets out the procedure a party should follow if they wish to make an application for an order under rule 3.4(2)(a) (where a statement of case discloses no reasonable grounds for bringing or defending a claim); or under rule 3.4(2)(b) (where a statement of case is an abuse of the court’s process or otherwise likely to obstruct the just disposal of the proceedings).
1.2 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
(1) those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
(2) those which are incoherent and make no sense,
(3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.
1.3 A claim may fall within rule 3.4(2)(b) where it is vexatious, scurrilous or obviously ill-founded.
1.4 A defence may fall within rule 3.4(2)(a) where:
(1) it consists of a bare denial or otherwise sets out no coherent statement of facts, or
(2) the facts it sets out, while coherent, would not amount in law to a defence to the claim even if true.
1.5 A party may believe they can show without a trial that an opponent’s case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the interpretation of a document). In such a case the party concerned may make an application under rule 3.4 or apply for summary judgment under Part 24 (or both) as they think appropriate.
1.6 Where a rule, practice direction or order states ‘shall be struck out or dismissed’ or ‘will be struck out or dismissed’ this means that the striking out or dismissal will be automatic and that no further order of the court is required.
Claims which appear to fall within rule 3.4(2)(a) or (b)
2.1 If a court officer is asked to issue a claim form which they believe may fall within rule 3.4(2)(a) or (b) they should issue it, but may then consult a judge (under rule 3.2) before returning the claim form to the claimant or taking any other step to serve the defendant. The judge may on they own initiative make an immediate order designed to ensure that the claim is disposed of or proceeds in a way that accords with the rules.
2.2 The judge may allow the claimant a hearing before deciding whether to make such an order.
2.3 Orders the judge may make include:
(1) an order that the claim be stayed until further order,
(2) an order that the claim form be retained by the court and not served until the stay is lifted,
(3) an order that no application by the claimant to lift the stay be heard unless they file such further documents (for example a witness statement or an amended claim form or particulars of claim) as may be specified in the order.
2.4 Where the judge makes any such order or, subsequently, an order lifting the stay they may give directions about the service on the defendant of the order and any other documents on the court file.
2.5 The fact that a judge allows a claim referred to them by a court officer to proceed does not prejudice the right of any party to apply for any order against the claimant.
Defences which appear to fall within rule 3.4(2)(a) or (b)
3.1 A court officer may similarly consult a judge about any document filed which purports to be a defence and which he believes may fall within rule 3.4(2)(a) or (b).
3.2 If the judge decides that the document falls within rule 3.4(2)(a) or (b) they may on their own initiative make an order striking it out. Where they do so they may extend the time for the defendant to file a proper defence.
3.3 The judge may allow the defendant a hearing before deciding whether to make such an order.
3.4 Alternatively the judge may make an order under rule 18.1 requiring the defendant within a stated time to clarify his defence or to give additional information about it. The order may provide that the defence will be struck out if the defendant does not comply.
3.5 The fact that a judge does not strike out a defence on their own initiative does not prejudice the right of the claimant to apply for any order against the defendant.
4.1 The court may exercise its powers under rule 3.4(2)(a) or (b) on application or on its own initiative at any time.
4.2 Where a judge at a hearing strikes out all or part of a party’s statement of case he may enter such judgment for the other party as that party appears entitled to.
Applications for orders under rule 3.4(2)
5.1 Attention is drawn to Part 23 (General Rules about Applications) and to Practice Direction 23A. The practice direction requires all applications to be made as soon as possible and before allocation if possible.
5.2 While many applications under rule 3.4(2) can be made without evidence in support, the applicant should consider whether facts need to be proved and, if so, whether evidence in support should be filed and served.
Applications for summary judgment
6.1 Applications for summary judgment may be made under Part 24. Attention is drawn to that Part and to Practice Direction 24.