Striking out a hopeless defence

CPR, r. 3.4(2) states:

‘The court may strike out a statement of case if it appears to the court –

(a)    that the statement of case discloses no reasonable grounds for … defending the claim;

(c)    that there has been a failure to comply with a rule, practice direction or court order.’

The power may be used by the court of its own ‘initiative’, and in a hopeless case the court can exercise the power at the first CMC, i.e. without requiring an application to be made for striking-out prior to the CMC.

The power is exercisable for failure to comply with CPR, r.16.5 (Content of defence).

A related use of the power is where it is alleged that a statement of case, even if its contents are assumed to be true, does not amount to a sustainable defence as a matter of law.

In Monsanto plc v. Tilly [2000] Env LR,Stuart-Smith LJ said that r.24.2 ‘gives a wider scope for dismissing a defence . The court should also look to see what will happen at the trial and, if the case is so weak that it has no reasonable prospects of success, summary judgment should be entered.’

Some allegations will be factually weak and aptly described as disclosing no reasonable grounds within the meaning of r. 3.4.

Procedural judges are under a duty to narrow the issues as part of their case-management functions under Part 1, and have the power to treat an application to strike out as one for summary judgment in order to dispose of issues or claims that do not deserve full investigation at trial (Three Rivers District Council v. Bank of England (No.3) at [88].

Therefore, because the power to strike-out is exercisable by the court of its own initiative, so is the corollary power to summarily dismiss a hopeless Defence.