Abuse of Process and Striking Out

Stephen McArdle
Stephen McArdle

Published: September 28th, 2020

3 mins read

Litigation can be uncertain, expensive and time consuming. However, the Courts have a wide range of case management powers, the exercise of which may heavily depend on the actions taken by parties involved in the litigation. Care should be taken when embarking on Court action and it is important to take legal advice and comply with the Civil Procedure Rules and all Court Orders and directions.

Parties to litigation should be aware that the Court has the power to strike out a party's statement of case (i.e. particulars of claim or defence to a claim) under CPR 3.4(2) if the Court is satisfied that an abuse of process has occurred. Such is the significance and importance of a statement of case, that striking it out would conclude the case in favour of the other party.

We consider the scope and range of this power below.

What constitutes an abuse of the Court's process?

The Civil Procedure Rules do not specifically define what is meant by an "abuse" of the court's process, therefore it is down to the Courts to determine what constitutes an abuse of process, based on the particular facts of each case.

This will turn on the facts of each individual case. However, case law has provided examples of scenarios in which the Court is likely to find that an abuse of process has occurred. Some examples include:

  • Where a party has no intention of complying with any judgment of the court;
  • A claim is issued without an intention to pursue it or there is a collateral purpose, such as causing expense, harassment or commercial prejudice;
  • A claim or defence is too general or is incapable of proof; and
  • Issuing a very low value claim which would involve a disproportionate use of the court's resources.
  • In any of these scenarios, the Court may strike out a party's statement of case.

Striking Out

Under CPR 3.4(2)(b), a party's statement of case may be struck out on the grounds that it is an abuse of the court's process or would be likely to otherwise obstruct the just disposal of the proceedings.

Striking out is the effective deletion of part of or the whole of a party's statement of case. Once a statement of case has been struck out, a party can no longer rely on that statement of case in the proceedings.

It is usually the case that a party will apply to the court asking them to make an order to strike out a statement of case on the grounds that it is an abuse of the court's process. However, the court may choose to strike out the statement of case without being prompted by the parties for other reasons.

When ordering directions at the case management stage of the claim, the court may provide that a party's statement of case be struck out automatically if that party does not comply with directions.

If particulars of claim or a defence is struck out, this will usually result in the court awarding judgment to the other party. Therefore, parties must ensure that the claims they are bringing are genuine and that they comply with any directions or judgment of the court.

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