Situations in which a case can be struck out (dismissed) or the hearing can be adjourned (put off to a later date).
- When cases can be struck out
- Asking for an order to be set aside
- Appealing against the decision
This content applies to England & Wales
When cases can be struck out
There are various situations in which a case can be 'struck out' (dismissed) or the hearing can be adjourned (put off to a later date), if:
no-one from the other side turns up, there will be grounds to have the case dismissed[1]
the client is unable to attend at the last moment, for example because they are ill, an application to adjourn the hearing can be made. This simply means that when the case is called, the representative should ask the judge to adjourn and explain the reasons for asking for the adjournment. If the other side objects, an adjournment may be denied. If this is the case, it may be possible to appeal against the judge's decision[2]
the claimant's case is not proved then the other party can apply for the case to be struck out
the claimant's case is purely academic or totally without merit, the court can strike out the case of its own initiative
facts are disputed and more evidence is needed, or there is not enough time available to hear the case fully, it is likely that the judge will order an adjournment and order each side to exchange evidence and statements before the next hearing (this is called giving directions)[3]
See AlsoAdjournmentit has been impossible to make a proper case because the other side has refused to give the information needed, the judge can be asked to adjourn the proceedings and give directions, including ordering the other side to provide the information required. This is called asking for 'disclosure' where the information is in the form of a document or correspondence, or for 'further particulars' where the information is part of a witness's oral evidence
Judge's directions
Any directions by the judge will be given with timescales attached, and these must be adhered to. It is important to make a note of the directions and timescales.
Civil restraint orders
Where a case is struck out on the grounds that it is purely academic or 'totally without merit', the court must specify that fact in the order that it makes, and must consider whether to make a civil restraint order against the party who issued such a claim.[4] The order will prevent such a party from issuing further claims without the permission of the court and will specify the related conditions.
For example, in one case[5] the court made a civil restraint order against a tenant who, having exhausted his appeal procedure, tried to further delaying the execution of a possession order against him by making a fresh application for relief from forfeiture which the court found completely academic and without merit, as his lease had not been forfeited. The order prevented the tenant from issuing any new proceedings, applications or appeals for a period of two years, without first obtaining the permission of the court.
Asking for an order to be set aside
It may be possible to ask for the original order to be set aside and the case heard afresh if the judge has given an order in the absence of one of the parties.
Decisions to set aside orders are at the judge's discretion – there would usually need to be a good reason for non-attendance.
Set aside can also be requested if the claim form was not received or if there has been a failure to comply with the court rules. The applicant must show that they acted promptly after becoming aware of the court order.
Appealing against the decision
Appeals against the decision of a district judge can be heard in the County Court by the circuit judge. The judge must have made a legal error in deciding the case. Permission to appeal is usually required. Applications for permission can be made immediately at the end of the possession hearing, or to the County Court within 21 days of the date of the possession order.
Appeals against the decision of a circuit judge are made to the High Court or the Court of Appeal, depending on the decision being appealed. Appeals about the judge's exercise of discretion will normally not be allowed: it is necessary to show that the judge has made a legal error. Applications must normally be made within 14 days of the judgment and, in most cases, it will be necessary to get permission from the court to make the appeal.
There is no right of appeal against a decision of an appellate court to give or refuse permission to appeal and the only remedy available in such cases is to apply for judicial review where exceptional circ*mstances warrant such application.
See Appealing against a possession order for more details.
Last updated: 23 March 2021
