KB-2025-001160 - [2025] EWHC 2369 (KB)

The sanction of striking out is often described in the authorities as “a draconian step” and a “last resort”. Even if a statement of case or parts of a statement of case do satisfy the Rule 3.4(2)(a) test, it does not follow that the defective pleading will necessarily be struck out. In these circumstances the court should determine whether it is proportionate and in accordance with the overriding objective to take this potentially draconian step: see e.g. Fairclough Homes v Summers [2012] 1 WLR 2404 at [48]. In determining this question it will be relevant to consider whether the defects are capable of being corrected by appropriate amendments (see e.g. In SooKim Park & Others [2011] EWHC 1781 (QB) at [40]) or whether other measures such as the provision of further particulars are appropriate (see e.g. Biguzzi v Rank Leisure Plc [1999] 1 WLR 1926 at 1932B).

The requirement for proportionate measures, using strike out as a last resort, also applies in relation to the abuse of process ground under Rule 3.4(2)(b). In the Summers case (supra) Lord Hope said at [48]:

“48.

It is in the public interest that there should be a power to strike out a statement of case for abuse of process, both under the inherent jurisdiction of the court and under the CPR, but the court accepts the submission that in deciding whether or not to exercise the power the court must examine the circumstances of the case scrupulously in order to ensure that to strike out the claim is a proportionate means of achieving the aim of controlling the process of the court and deciding cases justly.”

He went on to say, at [49], that the draconian step of striking a claim out is always a last resort.