A strike out application is a key case management tool used by the court to remove claims or defences that are legally defective before a dispute proceeds to trial. In commercial litigation, where proceedings can be lengthy and expensive, strike out helps ensure that only properly arguable cases continue. It reduces cost and delay by filtering out claims or defences that lack a proper legal basis or are otherwise unsuitable to proceed.
For defendants, a successful strike out application can provide an early resolution to weak or speculative claims, limiting financial and reputational exposure. Claimants may also use strike out to challenge defences that are legally unsustainable or advanced mainly to delay proceedings.
Although the courts exercise this power cautiously, recognising that parties should generally have their case heard at trial, strike out remains an important mechanism for promoting efficiency, fairness, and proportionality in litigation.
This guide explains what a strike out application is, when it may be appropriate, the legal grounds for making one, the procedural steps involved, and the key strategic considerations.
Summary
- What is a Strike Out Application?
- Legal Grounds for Strike Out
- The Procedure for Making a Strike Out Application
- When is Strike Out Appropriate?
- Consequences of a Strike Out Order
- Practical Tips for Applying or Responding
- Recent Case Law and Developments
What is a Strike Out Application?
A strike out application is a formal request asking the court to remove all or part of a legal claim or defence. If the court agrees, that part of the case cannot be used anymore.
In simple terms, to “strike out” a case means asking the court to dismiss it early, without a full trial, because the claim or defence is seriously flawed, has no legal basis, or has not been properly prepared. The court can strike out the whole case or only certain parts of it.
The court’s power to strike out is set out in the Civil Procedure Rules (CPR), in particular CPR 3.4, which explains when the court may exercise this discretion. The rule gives the court a broad discretion, meaning it will consider the specific facts of each case before deciding whether strike out is appropriate.
Importantly, striking out is different from deciding who wins a case after a trial. The court is not deciding the facts or reviewing all the evidence. Instead, it is deciding whether the claim or defence is legally valid as written. Since striking out stops a party from continuing with all or part of their case, the court uses this power carefully, and a case will usually only be struck out if the problem is obvious and cannot be fixed by changing or improving the wording of the claim or defence.
Legal Grounds for Strike Out
The court’s power to strike out a claim or defence is set out in CPR 3.4(2). This rule explains the main situations where the court can remove all or part of a case.
The purpose of the rule is to stop parties from continuing claims or defences that are legally flawed, misuse the court process, or interfere with the fair and efficient handling of the case.
No Reasonable Grounds for Bringing or Defending the Claim
Under CPR 3.4(2)(a), the court can strike out a claim or defence if it has no reasonable legal basis. This means the case could not succeed even if all the facts stated are assumed to be true.
For example, the court may strike out:
- claims that are not allowed by law,
- claims that do not properly explain a valid legal case,
- defences that simply deny allegations without supporting reasons, or
- pleadings that are vague, unclear, or confusing.
This rule is mainly used to stop hopeless cases from continuing to trial.
Abuse of Process or Obstruction of Proceedings
Under CPR 3.4(2)(b), the court can strike out a claim or defence if it is an abuse of the court process or if it is likely to prevent the case from being dealt with fairly.
An abuse of process happens when court procedures are used unfairly or improperly.
Examples include:
- bringing the same claim more than once,
- trying to argue issues that have already been decided by a court,
- using a claim for an improper reason, or
- bringing claims that are pointless, malicious, or intended to cause trouble.
The court may also strike out a case where a party’s conduct causes unnecessary delay or disrupts the progress of the proceedings.
Failure to Comply with Rules, Practice Directions, or Court Orders
Under CPR 3.4(2)(c), the court may strike out a claim or defence where a party has failed to comply with the CPR, a practice direction, or a court order. Litigation is governed by strict rules and deadlines, and parties are expected to comply with them.
Strike out is generally reserved for serious or repeated breaches, particularly where court orders are ignored or defaults are not remedied.
Examples include failing to serve documents, missing deadlines, or breaching disclosure obligations. Courts place significant importance on compliance and may take a strict approach where breaches disrupt proceedings or prejudice the other party.
The Procedure for Making a Strike Out Application
A party seeking to strike out a claim or defence should submit the application as soon as it becomes clear that there are proper grounds to do so. Making an early application can help avoid unnecessary costs and prevent the parties from wasting time on a case that is fundamentally defective. Such applications are typically filed before the matter is allocated to a case management track, although they can also be brought later where appropriate.
Strike out applications are made under CPR Part 23 and require a formal application to the court. The applicant will usually need to file the following documents together with the relevant court fee:
- Application Notice (Form N244): The document asking the court to make the order and explaining why the claim or defence should be struck out.
- Draft Order: a document showing exactly what order the applicant wants the court to make.
- Supporting Evidence: Sometimes the application only needs the legal pleadings and arguments. In other cases, witness statements or documents may also be needed, especially where facts are disputed.
The application and supporting documents must then be sent to the other party within the required time limits. In more complex cases, the parties may also prepare skeleton arguments, which are short written summaries of their legal arguments.
The court may decide the application at a hearing or sometimes only by reading the written documents. If the application is successful, the court may:
- strike out all or part of the claim or defence,
- allow the party to correct the problem by amending the pleading, or
- order the party to fix the problem within a set time.
Importantly, the court can also strike out a statement of case on its own initiative, although parties will usually be given an opportunity to make representations before a final order is made.
When is Strike Out Appropriate?
Strike out is meant to be a quick and proportionate way of dealing with cases that are clearly defective and should not go to a full trial. It is mainly used where the problem can be seen from the statement of case itself, without needing detailed evidence or a full investigation of the facts. The court will consider whether allowing the case to continue would waste time and costs or unfairly burden the other party.
Since strike out is a serious step, the courts use it with caution. It is not suitable for cases involving major factual disputes or cases that depend heavily on witness evidence, expert evidence, or disputed facts. If the court needs to closely examine evidence to decide whether the case has merit, the matter will usually be left for trial instead.
Strike out is also different from other case management powers. For example, summary judgment under CPR Part 24 focuses on whether a party has a “real prospect” of succeeding and may involve looking more closely at the evidence. Strike out, by contrast, mainly looks at whether the statement of case is legally valid or procedurally defective on its face.
Similarly, if a party has failed to follow court rules or orders, the court may make an “unless order” instead of immediately striking out the case. An unless order gives the party one final chance to comply within a set time. If they fail to do so, their claim or defence will automatically be struck out.
Ultimately, the court will consider whether strike out is a fair and proportionate response in the circumstances of the case.
Consequences of a Strike Out Order
A strike-out order removes all or part of a claim or defence from a case and can end that part of the proceedings straight away. If a claimant’s case is struck out, their claim is usually dismissed, meaning they cannot continue with it in that case. If a defence is struck out, the defendant may lose the right to challenge the claim, and the claimant may be able to obtain judgment.
Because strike out can effectively end a case without a trial, courts treat it as a serious and sometimes “draconian” case management power. The losing party will usually be ordered to pay the other side’s legal costs, normally on the standard basis, although in more serious situations (such as abuse of process), the court may order higher “indemnity” costs.
A strike-out order does not always mean the matter is completely finished. In some situations, a party can ask the court to set aside or change the order, for example if they were not present at the hearing or if there is a good reason the decision should be reconsidered. A party may also appeal if they believe the court made a legal or procedural mistake. In limited cases, it may even be possible to start fresh proceedings, depending on why the strike out happened.
Although strike out is a powerful tool, applying for it carries risk. If the application fails, the applicant may have to pay costs, and it can sometimes strengthen the other side’s position in the case.
Practical Tips for Applying or Responding
Strike out applications can have significant consequences for both parties, so they should be approached strategically and proportionately. Below are some practical points to consider when making or responding to an application.
Applicants
- Consider whether strike out is appropriate: Strike out is a serious remedy and should be used only where the defect in the claim or defence is clear. In some cases, summary judgment or an unless order may be more suitable.
- Act promptly: If grounds for strike out become apparent, it is usually best to apply early to avoid unnecessary costs and delay.
- Focus on clear defects: The application should identify precisely why the claim or defence is defective, such as disclosing no reasonable grounds, amounting to an abuse of process, or involving procedural non-compliance.
- Prepare supporting evidence carefully: Some applications are decided based only on the written statements of case, while others may need witness evidence, especially when the application depends on disputed facts.
- Avoid overly aggressive applications: Weak or tactical applications can backfire and may lead to adverse costs consequences.
Respondents
- Respond quickly: Carefully read the application and understand the criticisms being made. If you delay, it may weaken your position.
- Consider amendment: Courts often prefer allowing a party to fix problems in their claim or defence rather than striking it out completely.
- Highlight disputed factual issues: Courts usually avoid deciding complicated factual issues at this stage. If the case depends on disputed evidence, make that clear.
- Show that the case is arguable: You should explain that your claim or defence has a proper legal basis and should be allowed to go to trial.
Since strike out applications are technical and can have serious cost consequences, it is usually sensible to get legal advice early, irrespective of whether you are making or defending a strike out application.
Recent Case Law and Developments
Recent case law shows that strike out is still treated as a serious and exceptional remedy. Courts generally prefer cases to go to trial where there are real factual disputes or where problems in the claim or defence could be fixed by amendment.
A key influence on modern decisions is Denton & ors v TH White Ltd & ors which set out the approach to relief from sanctions. While it is not a strike out case itself, its principles are often used where parties fail to comply with court rules or orders. Repeated or serious non-compliance with deadlines, directions, or disclosure obligations can lead the court to impose strong sanctions, including strike out, if it disrupts the progress of the case.
Recent cases also confirm the difference between strike out and summary judgment. Strike out is mainly about whether a statement of case is legally valid on its face, not about weighing up evidence. Courts are still reluctant to strike out cases that involve complex factual disputes, since those are usually better decided at trial.
At the same time, courts have become more willing to strike out claims that are unclear, poorly pleaded, or incoherent, especially in commercial cases where proper pleading is expected. However, in more complex multi-track litigation involving serious factual disputes, courts tend to use other case management tools instead of striking out.
Strategic Considerations
Strike out applications are a powerful procedural tool that can bring weak or defective claims and defences to a quick end, potentially saving parties considerable time and legal costs. They are particularly effective where a statement of case is clearly unsustainable, abusive, or affected by serious procedural non-compliance. However, because strike out can effectively dispose of proceedings without a full trial, the courts expect such applications to be used carefully and proportionately.
Before making or responding to a strike out application, parties should carefully assess the strength of their position, the complexity of the issues involved, and whether alternative case management tools, such as summary judgment, may be more appropriate. Obtaining early legal advice is often crucial both to maximise the prospects of success and to minimise potential costs risks.
At Witan Solicitors, our dispute resolution team advises businesses and individuals on all aspects of commercial litigation, including strike out and summary judgment applications. For more information or advice, please contact our team on 0300 303 2071 or email us.
