16 Sanctions, Striking Out and Discontinuance

Striking out, discontinuance, and stays

- 3.4 court can throw out all or part of a statement of case

- Application byparty or court’s own initiative

Main rule:

- R 3.4(2) provides:
(i) May strike out a statement of case if it appears to the court
(a) That the statement of case discloses no reasonable grounds for bringingor
defending the claim;
(b) Statement of case is an abuse of process or is otherwise likiely to obstruct the
just disposal of the proceedings; or
(c) That there has been a failure to comply with a rule, practice direction or court
order

After striking out

- If entire struck out no platform for making subsequent interim applications

Starting a second claim after striking out

- Where struck out, c to pay d’s costs

- If c brings another case with same facts, d may apply for a stay until costs for first one paid
- Inexcusable delay or breach of premetory order may result in second case being thrown out

Procedure on applications made by the parties

- Strike out application by part 23

- Provide evidence where facts need to be proved
- Normally made inbetween acknowledgment of service and filing direction questionaires
- If defendant serves defence, lost the right to strike out
- Default only after strike-out
- Strike-out before track allocation

References by Court Officers

- Court officers may refer when assessing claim form

General test
 - Limited to plain and obvious cases

No reasonable grounds for bringing or defending the claim

- Not sustainable as a matter of law

- On hearing, will assume facts stated are true
- Court may allow to amend rather than strike out

Abuse of process

General examples

- Claim issued after expiry can for abuse of process, but not for no reasonable grounds
(limitation is a procedural DEFENCE)
- Starting a claim with no intention to follow through

Relitigation amounting to abuse

- Twocategories:
(i) Cases where the litigant in the second claim wishes to challenge adverse findings in
the earlier proceedings; and
(ii) Cases where the litigant in the second claim wishes to make a claim which was not
made in the earlier proceedings, but which the court finds he could and should have
made in the earlier proceedings

Settlement actomg as a bar to later proceedings

- Can act as a bar

- Jameson:
(i) Claim for unliquidated damages is capable of being fixed in a specific sum either on
judgment or by agreement
(ii) Whether compromise fixes the full measure of the d’s loss on proper construction of
the compromise agreement
(iii) Whether compromise extinguishes other claims between parties
(iv) If compromise fixes the claimant’s loss it extinguishes that cause

Obstructing the just disposal of theproceedings

- Vexatious, scurrilous or obviously ill-foudned

- Poor drafting

Powers after a striking-out order is made

- May enter judgment

Discontinuance

- C must file notice of discontinue

- What may be discontinued:
(i) Whole claim
(ii) Part of the claim
(iii) Against all of the defendants; or
(iv) Some of the d’s
- Permission to discontinue: generally, c has right without seeking permission. However,
required where:
(i) If an interim injunction had been granted;
(ii) If any party given an undertaking in relation to its discontinuance;
(iii) C had received interimpayment OR consent may be given by d
(iv) Where more than one claimant, obtain permission or consent in writing from other
c’s
(v) Where brought by person under a disability, approval needed where discontinuance
amounts to a settlement
- Procedure for discontinuing:
(i) File notice. Regards contents:
(a) Must state copies been served on all other parties;
(b) Where consent required all copies of notice must have copies of the consent
annexed
(c) Where more than one d: id d whom it is being discontinued
- Setting aside notice of discontoinuance
(i) Without notice or permission provided made within 28 daysof discontinuance notice
- Effectof discontinuance
(i) Takes effect upon service to d’s
(ii) C liable for costs unless court directs otherwise
(iii) No cost implication for small track – claims
(iv) Costs lkimited to part of claim discontinued

Stays

- Stays in pending proceedings:

(i) Where no issue on liability but wait for prognosis
(ii) Where sol instructed late in day, must grant stay to comply with ore-action
- Stays to enforce compliance with orders:
(i) Provision for security of costs
- To protect concurrent claims
(i) ???
Chapter 37: Sanctions

Non-compliance with pre-action protocols

- To ensure not taken by surprise: set out in particulars

Non-compliance with CPR

- 32.10: failing to serve witness statement means witness cnnot be called at trial unless court
gives permission
- Same with experts

Non-compliance with directions

- Agreeing new deadlines

(i) May slip on a few deadlines, but must keep to key dates
(ii) If cannot be kept to, parties should agree new timetable: written agreement of the
parties, unless express prohibition on variation of the rules
(a) Key dates (cannot be changed without a court order)
1. Filing direction questionaires
2. Cmc’s
3. Pre-trial reviews
4. Filing pre-trial checklilsts
5. Trial
(b) Compliance with court order cannot be altered through agreement
(iii) Can extend up to 28 days and so long as it does not affect the hearing dates
(iv) If longer than 28 days: draft consent order together with reasons
- Warning other side
(i) Party not in default faced with breaching opponent is not entitled to make matters
worse – must write to the defaulting party and give warning to apply for sanctions

Preservation of trial date

- Approach that will be taken where breach of directions that is likely to impinge on trial date
- PD 28 para 5.4 (fast-track)
- PD 29 para 7.4 (multi-track)
(i) Court will not allow breach to postpone the trial unless exceptional circumstances
(ii) Court will exercise powers in a manner that enables trial to come on that date
(iii) Court will assess what steps each party should take to prepare the case, direct those
steps are taken and impose sanctions for non-compliance
(iv) Court may direct that trial will proceed on the issues that will be ready
(v) Where court must postpone trial, will do so for shortest amount of time
(vi) Above is a matter of last resort
Applications for sanctions

- May deal with default:

(i) Minor or trivial breaches may be forgiven together with costs order for the hearing
and application
(ii) Revised deadline is ‘final’
(iii) Make an ‘unless’ order
(iv) Court impose immediate sanction: restrict evidence in case, value of claim, striking
out whole or part
- Specify date to be complied with
- Where too onerous a sanction, should appeal that instead of applying for relief from
sanctions
- May be possible tovary or revoke sanction but have to have a material change in
circumstances

Unless Orders

- PD 40B para 8.2: formulation

- Test is whether there has been complete compliancesubject only to de minimis exceptions

Non-compliance with an unless order

- If in breach, will take effect unless apply for relief

- Where ‘shall’ be struck out, done so automatically
- Procedure for obtaining judgment on non-compliance with order
(i) Where default is the claimant and order is strike out all particulars of claim; d
application notice
(ii) Where default is d, and will stike out defence and claim relates to:
(a)specified sum of money
Damages
And/or delivery of goods with alternative of paying their value
C may enter judgment with costs by filing request
(iii) Where only part of the particulars or defence struck out or where c has equitable
relief: must issue prt 23 and on notice
- Sanction takes effect immedietley

Striking out

- Failure to comply with rule, direction or court order

- Striking out on delay only if considerable risk that it will be impossible to have a fair trial

Less serious immediate sanctions

- Sanction which ‘fits the crime’

 - Strike out PART of the claim

Extending time or correcting errors

- Extending time:
(i) Court has general power to extend time
(ii) Can do so on own initiative
(iii) Before or after (but different)
(iv) Court must apply overriding objective and consider what prejudice to other side
- Remedying irregularity
(i) Where wrong form etc.
(ii) Errors do not invalidate the step taken
(iii) Unless manifest

Relief from sanctions and setting aside

- Two mechanisms for retrieve position when sanctions comes into effect:
(i) Where judgment entered under 3.5 following the striking out of a statement of case
for breach of an unless order, defaulting party may apply to set aside the judgment
under r 3.6;
(ii) A party in breach of any other rule, practice directionor order imposing sanction
relief under 3.8(1)
- Both issue application notice supported by evidence
- Both court apply principles of relief from sanctions in 3.9
- Where party extend time (without express relief from sanctions) after deadline for
complying with unless order also criteria in 3.9
- Rule 3.9:
(i) Court consider all circumstances in order to deal justfly including the need
(a) For litigation to be conducted efficiently and atproportionate cost
(b) To enforce compliance with rules, PDs and roders
- In Mitchell ,costs for half a mil before one day instead of 7, following principles:
(i) Court consider all circumstances, this means the court
(a) Overriding objective
(b) Balancing exercise taking into account factors rekevant to the application
(ii) Two most important factors in 3.9:
(a) Litigation to be conducted efficiently and proportionate cost
(b) Need to enforce compliance
(iii) Relief unlikely to be granted unless either
(a) Breach is trivial and application made promtley
(b) Good reason for non-compliance