When you file a lawsuit, you expect the other side, the Defendant, to present a real answer, or a “Defence.” Sometimes, that Defence is so bad, so late, or so confusing that it should not even count. When that happens, you do not have to wait for a full trial. You can ask the judge to strike out the Defence entirely.
Striking out a Defence means the judge ignores the other side’s argument and moves your case straight to judgment. It is a powerful legal step. It saves huge amounts of time and money, but judges do not grant these applications easily.
This guide breaks down the process. We will look at the reasons a judge will strike out a Defence and give you the steps to build a winning application.
Part 1: What It Means to “Strike Out” a Defence
To strike out a Defence means the court uses its power to remove the Defendant’s formal answer from the case file. When this happens, the Defendant is treated as if they never filed a Defence at all. If the Defence is struck out, you, the Claimant, can immediately ask the court for a default judgment in your favor.
This is a serious move. The court always prefers to decide a case after hearing all the facts at a trial. Because striking out ends the case early, the judge has a high bar you must clear.
Why You Would Use This Power
You do not ask for a strikeout just because you think the Defence is weak. You ask for it when the Defence falls into one of three major legal problems. This legal power is mainly found in the court rules that govern civil cases (often called the Civil Procedure Rules, or CPR).
Part 2: The Three Reasons a Judge Will Strike Out a Defence
When you write your application to the judge, you must clearly state which of these three reasons applies. Think of these as the legal “grounds” for your request.
1. No Reasonable Grounds for Defence
This is the most prevalent reason. It goes to mean that though everything that the Defendant has said in his or her Defence document could be 100 percent true it would not be legal in argument.
How to Spot This Ground:
- No Legal Basis: The Defendant acknowledges the fact that they violated a contract but says that they need not pay as they were stressed. Stress is not a legal defense of breach of contract. The Defence is legally unsuccessful.
- Simply a Denial: The Defence just says, “I deny this,” without providing any details or facts to support that denial. For example, they deny owing money but fail to explain why or where the money went.
- Bizarre Claims: The Defence is incoherent, or illogical, or unprovable. The court should be in a position to know the case the Defendant is attempting to present.
Key Point to Argue: In presenting this ground, you are asking the judge to presume that the Defence is true, and then to conclude that it does not nevertheless work under the law.
2. Abuse of the Court Process
This ground is for when the Defendant is not just wrong, but is being dishonest or is simply wasting the court’s time and resources. This is a very serious charge.
How to Spot This Ground:
- Re-Litigation: The Defendant is attempting to challenge an issue that has been resolved by some other court in a previous suit. There is no use fighting one battle again and again; that is not allowed in the law.
- Delaying Tactics: The Defence is filed late, or the Defendant is it on the Defence document to merely confuse the case or make the case as delay as possible.
- Serious Dishonesty: The Defence encompasses a statement of fact known to be false by the Defendant and which you can easily prove. As an illustration, the Defendant may say that they were not in the country on the day the contract was executed whereas you have recorded flight records that they were.
3. Failure to Follow a Court Order or Rule
The court makes an order to continue with the case, such as a set of instructions. A party not following those instructions can result in a strikeout. It is an effective, technical reason.
Examples of Failure to Follow Rules:
- Late Filing: The Defence was filed very late, and the Defendant did not seek the court to be granted the leniency to file late.
- Ignoring Disclosure: The court requested the Defendant to provide certain documents (disclosure) at a specified date. The Defendant did not do so, and the documents were material to the case.
- Missed Hearings: The Defendant has failed to attend hearings in the court on numerous occasions without justifiable reasons.
The Warning Step: In the case of procedural failures (i.e., lateness), the judge will frequently provide the Defendant with a second chance initially. They could impose an unless order. The order states as follows: “Unless the Defendant produces the documents before [Date], their Defence will be struck out. When the Defendant fails to meet the deadline in an unless order, then your request to have a strike-out is much easier.
Part 3: Step-by-Step Guide to Making the Application
The actual procedure of requesting the judge to put back a Defence has its steps. You must follow them exactly.
Step 1: Prepare the Application Notice
You must use the correct court form, often called an “Application Notice” or “Motion.” This is a short form where you formally ask the court to do something.
- State the Order You Want: Write clearly: “The Claimant applies for an Order that the Defendant’s Defence be struck out under [Cite the Specific Rule, e.g., CPR 3.4].”
- List Your Grounds: On the form, you should list the three legal reasons (the grounds) of Part 2 under which your case falls. As an example, The Defence brings out no sufficient reasons in defence of the claim, and it amounts to a misuse of the court process.
Step 2: Write Your Witness Statement (The Proof)
This is the most important document. The Application Notice is just the request; the Witness Statement is your evidence explaining why the Defence should be struck out. This document tells the story.
- Identify the Problem: What the Defence said. Annex a copy of the Defence.
- Reference the Law (Simply): Indicate the particular sections of the law or the court regulations violated by the Defence. E.g., “There is only one line in the Defence which states that the debt is denied, which is in breach of Rule 16.5 since it does not say why it is denied.
- Show the Failure: In case of a procedural failure, strike out, produce evidence. Included with this is a copy of the court order that the Defendant violated and a copy of the letter you sent them reminding them of the deadline.
- Sign and Date: The Witness Statement is to be signed, and a Statement of Truth is to be provided. This implies that you are under oath, so that whatever is in the statement is true.
Step 3: Check and File the Documents
Check to see that you have not missed anything before you file. Lack of a document may lead to a dismissal of the application by the judge.
- Filing Fee: You have to pay the fee in the court regarding the Application Notice. In case you are not able to cover the fee, you are to submit another form requesting assistance in covering court fees.
- The Bundle: Prepare the following in this order: 1) Application Notice, 2) Witness Statement (with exhibits), 3) A copy of an order that you would wish to have signed by the judge.
- Submit to Court: File your bundle at the correct court office.
Step 4: Serve the Documents on the Defendant
It is not possible to simply inform the judge about what the Defendant did wrong without first informing the Defendant. This is a rule of fairness. You have to serve the documents on the other side.
- Send a Copy: Within the next three days after you have turned in the Application Notice, you must send to the Defendant or his lawyer a full copy of the Application Notice, the Witness Statement, and all exhibits.
- Record Proof of Service: Have a clear record (or Certificate of Service form) which states that you sent the papers and on what date. This proof will be sought by the judge during the hearing.
Part 4: What the Judge Considers at the Hearing
You have done the work and filed the papers. Now you have a court hearing. The judge will consider two main things before making a decision.
1. Is the Defence Truly Unwinnable?
For the first reason (No Reasonable Grounds), the judge will look at the Defence in the best possible light. They will ask: “Is there any chance, no matter how small, that this Defence could succeed at a full trial?”
Only by being sure that the case is hopeless will the judge strike out the Defence. In case the case relies on one fact, which is under dispute, e.g., did they or did they not sign the paper? Almost invariably, the judge will leave the case to trial. It is necessary to demonstrate that the law defeats the Defence not only facts.
2. Is the Punishment Fair?
For the second and third reasons (Abuse/Failure to Follow Rules), the judge must decide if striking out the Defence is a fair punishment.
- Proportionality: If the Defendant was only one day late in filing a document, and the delay did not harm your case, the judge is unlikely to strike out the entire Defence. A minor breach gets a minor penalty, like paying a small fine. A serious, long-term failure gets a serious penalty.
- The Importance of the Order: If the Defendant broke an important court order (like the unless order mentioned before), the judge is much more likely to strike out the Defence. Breaking a firm, final court order is treated very seriously.
Part 5: Winning the Application and Moving Forward
If you win your application, the judge will issue an Order that says the Defence is struck out. This is a huge win.
The Next Step: Once the Defence is struck out, you can file a separate request for a “final judgment.” You must prove the amount of money or damages you are asking for. The judge will enter a formal judgment against the Defendant, and you can then begin the process of enforcing the debt.
In case you lose the application, the Defence remains in the case. The judge may require you to pay the legal expenses of the hearing to the Defendant, which is one of the reasons why you should not overlook this application. In case of a loss, you have to use the remarks made by a judge to make your argument at the last trial.
Final Thoughts and Next Steps
Applying to strike out a Defence is a move that requires great care. You are asking the judge to use an extreme power, and you must give them excellent legal reasons to do so. Simple language and clear evidence will always serve you best in court.
Use this guide to ensure your paperwork is flawless and your legal arguments are direct. This is the quickest way of getting your claim.
I could assist you in preparing the entire contents of a Witness Statement in a certain situation, or we may research the specific rules of the jurisdiction in which you practice, seeking a default judgment following a strike-out. Follow me on LinkedIn for more updates.
