Editorial: Striking out, Costs and QOWCS - Aidan Ellis, Temple Garden Chambers
27/07/17. Unusually, by the end of this week I will have had the pleasure of appearing in four strike out applications in a row. Many strike out applications now arise from substantially similar facts; the Claimant failed to comply with directions and, after allowing a more or less decent opportunity to apply for relief, the Defendant applied for strike out pursuant to CPR 3.4(2)(c). The principles on the applications are clear; after the Jackson reforms the Court has little scope to be sympathetic to a litigant who disregards Orders. But more interesting issues can arise on costs.
CPR 44.15 provides, in an exception to QOWCS, that the Defendant may enforce costs orders without the permission of the Court where the claim has been struck out on specified grounds. Of those specified grounds, 44.15(a) and (b) mirror the grounds for strike out in CPR 3.4(2)(a) and (b) – there is not much scope for argument where the claim is struck out because it discloses no reasonable grounds for bringing the proceedings or as an abuse of process. But many applications for strike out on procedural grounds are for breach of a rule, practice direction or order and, here, the application of CPR 44.15(c) does not mirror CPR 3.4(2)(c). The costs rule provides that costs may be enforced where the strike out is on grounds that “the conduct of (i) the Claimant or (ii) a person acting on the claimant’s behalf and with the claimant’s knowledge of such conduct is likely to obstruct the just disposal of proceedings”. Plainly that adds additional obstacles...
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