What is an application to strike out?

Where a statement of case (such as a claim, defence, or counterclaim) has absolutely no prospects of success or appears to be an abuse of the court's process, it may be possible to make an application to strike it out. This application asks the court to dismiss the statement of case. If a claim is struck out, then this ends the claimant’s claim. If a defence is struck out, then the court can order a County Court Judgment in the claimant’s favour. Below are some of the reasons why an application for strike out could be made:

• The statement of case is too vague.
• The claim/counterclaim does not provide a particularised value.
• Certain criteria under relevant legalisation have not been met.
• The claim/counterclaim has been issued against the wrong party.
• The claim/counterclaim was issued out of time under the relevant limitation period.

To make an application to strike out incurs a fee of £303 (as of the date of publication). If your application is successful, you may ask the court to order your opponent to pay this application fee. Applications to strike out are often made before the track allocation to your claim.

What is the small claims track?

The term ‘track’ refers to the route the court will take based on the value of the claim and how complicated the case is. The small claims track typically deals with less complicated cases with a claim value of up to £10,000. Here, your preparation time and any legal costs are not normally recoverable, except in relatively rare cases where you can demonstrate that your opponent has been exceptionally unreasonable in their conduct. This is a high threshold and should not be relied upon to pay your legal costs.

Advantages

• You may save further costs in the long run if your application to strike out is successful as this will result in an earlier resolution.
• Even if unsuccessful, an application to strike out may narrow the issues for trial.

Disadvantages

• On the small claims track, you are unlikely to get an order asking your opponent to pay the costs of preparing an application to strike out or preparing any other correspondence during the dispute. If you are representing yourself, it may be more cost effective to attend the final hearing, instead of preparing further applications.
• The responsibility of showing that the statement of case should be dismissed falls on the applicant. For instance, where a defendant makes an application to strike out a claim, the responsibility shifts from the claimant to prove their claim to the defendant to prove that the claim as written does not give rise to a cause of action. There is a relatively low threshold to defeat the application to strike out. It may be easier to defend the matter at trial.

Alternatives

Where your opponent has not properly formulated their statement of case:

• You could briefly explain to them what they have done wrong and use this as a way to settle. This may lead to an earlier resolution.
• You could briefly explain to them what they have done wrong and ask them to amend their statement of case. If your opponent agrees to amend their statement of case, they should ask you to sign a draft consent order stating that the parties agree to your opponent amending their statement of case. This does not mean that you agree to the contents of the amended statement of case. Your opponent should then file this draft consent order with the court to approve and the fee of £108 (as of the date of publication). Your opponent will incur this court fee, instead of you.

Key points

Parties should take great care when preparing their statement of case, making sure that they have set out their position clearly and met any legalisation requirements. Where your opponent has not quite met the mark necessary in their statement of case, you should weigh up the cost of the application to strike out with the costs of going to trial. It might be better to attempt to settle the case out of court if you find a fault with your opponent’s statement of case.

If you require any advise in this area the Commercial Litigation Team at Porter Dodson would be happy to help.