Strike out application

[deband1980]

Hi, hope someone can help me out, the Defendants in my claim have served an acknowledgement of service to my Particulars of claim but have not filed a defence within the 28 day period thereafter.

Giving the above can they make an application to strike out my claim, even though the time for them to provide a defence has expired.

Any advice would be greatly appreciated, thank you.

[deband1980]

Any help would be appreciated..

[R0b]

Hello

It's not clear why you are asking about a strike out. If the Defendant has failed to file a defence within the requisite time, shouldn't you be seeking default judgment?

Bear in mind, if the defence was sent by post, then the courts tend to be a week or two behind in processing, so before you consider looking at that, you might want to contact the court.

The short answer to your question is in theory they could but they would need to seek permission to file a defence if the strike out was unsuccessful as that would give you grounds for judgment. Usually, you would file a defence and then apply for strike out to avoid any risk.

[deband1980]

Hi Rob, and thanks for your reply, really appreciated.

I telephoned the Court on Friday, some three weeks after the Defendants should have filed a defence, the Court advised me that no defence had been filed.

I have this morning sent to the Court an application for summary judgement to be entered or considered in default of the Defendants not providing a defence to the claim.

The Defendants application to strike out the claim was made before the time to provide a defence had expired,

Without providing a defence, can a party make an application to strike out a claim. Thanks

[R0b]

Without providing a defence, can a party make an application to strike out a claim. Thanks

The answer goes back to my point above. Yes, they can in theory make an application to strike out but it is dangerous to do so because normally a strike out would be issued at some point after acknowledgment but before directions questionnaire has been filed.

I have not been able to see anything specific for strike out applications from a quick glance but at CPR 12.3(3) says the following:

(3) The claimant may not obtain a default judgment if -

(a) the defendant has applied -

(i) to have the claimant's statement of case struck out under rule 3.4; or

(ii) for summary judgment under Part 24,

and, in either case, that application has not been disposed of;

So I am assuming that the application for strike out is being processed and until such a time you cannot request default judgment. If default judgment is granted then you would open yourself up to costs because the judgment would need to be set aside having wrongfully been entered.

Once the strike out application has been disposed of i.e. if the judge has decided not to strike out your claim, you would be entitled to request default judgment against the defendant. You would need to be quick because until you request default judgment, there is time for the defendants to file a defence. That said, if the application requires a hearing you could ask the judge to give default judgment there and then following the dismissal of the strike out on the basis no defence has been filed.

[jaguarsuk]

Without providing a defence, can a party make an application to strike out a claim. Thanks

Yes and if the application has been accepted with the appropriate fee paid expect your summary judgement to be refused until the application has been dealt with.

What grounds are they applying to strike out on?

[deband1980]

The answer goes back to my point above. Yes, they can in theory make an application to strike out but it is dangerous to do so because normally a strike out would be issued at some point after acknowledgment but before directions questionnaire has been filed.

I have not been able to see anything specific for strike out applications from a quick glance but at CPR 12.3(3) says the following:



So I am assuming that the application for strike out is being processed and until such a time you cannot request default judgment. If default judgment is granted then you would open yourself up to costs because the judgment would need to be set aside having wrongfully been entered.

Once the strike out application has been disposed of i.e. if the judge has decided not to strike out your claim, you would be entitled to request default judgment against the defendant. You would need to be quick because until you request default judgment, there is time for the defendants to file a defence. That said, if the application requires a hearing you could ask the judge to give default judgment there and then following the dismissal of the strike out on the basis no defence has been filed.

Thanks Rob, I have not received as such, a strike out application sealed by the Court and I have asked the Defendant and the Court to provide proof that the fee and application has been lodged and thereafter issued.by the Court.

What is very annoying is that the Court are aware of the fact that I requested judgement in default last year, when the Defendants failed to provide an acknowledgement of service and subsequent defence.

The Defendants have alleged that they did not receive my particulars of claim so they did not have to file a defence, evidently they did receive the particulars.

The fact that they signed for the particular of claim and Royal Mail have provided data that they received this on the date they claim they did not receive the particulars demonstrates that this was a misrepresentation.

I also filed a certificate of service confirming that I had provided the Defendants the particulars of claim.

This significant fact seems to have been brushed aside.

[deband1980]

Yes and if the application has been accepted with the appropriate fee paid expect your summary judgement to be refused until the application has been dealt with.

What grounds are they applying to strike out on?

Thanks for reply, appreciated.

The Defendants grounds are that there is no prospect of me winning the case.

This despite the Defendants making false representation for a period of near on two years, and without a legitimate contract as to represent and profit from false misrepresentation.