Order to strike out on the own initiative of the court during a hearing itself
CPR 3.3(4) and CPR 3.3(5)(a) about Court’s power to make an order of its own initiative says
“(4) The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations.
(5) Where the court has made an order under paragraph (4) –
(a) a party affected by the order may apply to have it set aside<a href=" removed link ">(GL), varied or stayed<a href=" removed link ">(GL); and”
The judge during a hearing about an interim application decided to strike out a claim on its own initiative at the end of this hearing.
The judge gave the opportunity to the claimant to say why he thinks that his claim should not be struck out. However, the claimant did not expect that an application to strike out his claim will be considered during this hearing and as a consequence he had not prepared any oral submission for this hearing about this issue. Hence, the only oral submission the claimant could give during this hearing to prevent his claim from being struck out was an improvised one
Moreover, the claimant was not given any opportunities to make any written representations during the hearing to prevent his claim from being struck out because no application to strike out his claim was listed for this hearing because the judge struck out the claim on his own initiative during the hearing itself
In these conditions, I would like to know if the claimant has the right to make an application to set aside this order to strike out his claim under CPR 3.3(4) and CPR 3.3(5)(a)
This will be a different and additional procedure to this of lodging an appeal
In this case could there be another hearing where this time the claimant would have given the possibility to prepare in advance oral and written representation to have this order to strike out set aside?
The antispam forum arquitecture stops you posting links while being too new to the forum.
Hide in the noise. #hackerwisdom
If the order was made under CPR3.3(4) then the right given in rule 3.3(5) applies.
My second post was not a spam. I posted it because I wanted to improve the title of this new thread
In the order it is not made any reference to a CPR. it is said that the judge struck out my claim because it is without merit.
In the transcript it is said that the judge has taken this decision on his own initiative during the hearing.
The question is how to know whether or not my claim was struck out under CPR 3.3 (4) ? Is it because the claimant was not given an opportunity to give a writing submission and not the possibility to give an oral submission that he could have prepared in advance?
Have you tried saying that if that is what the judge said he must have been applying rule 3.3(4)?
The only thing that the judge said is that he struck out my claim because it is without merit to save further costs
To determine whether the court has struck out my complaint under CPR 3.3(4) I think that we have to determine if the court has done the following:
“(4) The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations.”
Hence, in order a claim is not struck out under CPR 3.3(4) there are three conditions
- The claim should not have been struck out on the own initiatives of the court
- The Claimant should have been given an opportunity to make an oral representation
- The Claimant I should have been given an opportunity to make a written representation
- My claim was struck out on the own initiatives of the court
- I was given an opportunity to make an oral representation during the hearing but it was an improvised one and not a prepared one because I was not warned in advance that an application to strike out my claim will be considered during this hearing
- I was not given any opportunities to make any written representations for this same reason i.e. I was not warned in advance that an application to strike out will be considered during this hearing
Hence, I think none of the three conditions to prove that my claim was not struck out under CPR 3.3(4) are satisfied so I consider that my claim was struck out under CPR 3.3(4) even though the judge does not make any reference to CPR 3.3(4) unless there is something that I have not understood
What reasons did the judge give for considering that your case is hopeless?
You should at all times be on top of your 'case theory' and therefore able to explain your case succinctly at any time. Read this: https://www.salgado-reyes.com/community/postid/10/
I issued a claim for harassment against a first defendant and a claim for harassment against a second defendant. I won these two claims
These two defendants carried on harassing.
Moreover, I found further evidence of harassment that I cannot use in the first set of claims.
Hence, I issued a second claim for harassment against the first defendant and a second claim for harassment against the second defendant.
I made an application for an order of disclosure so that the first Defendant provides me information that he concealed from me.
My second claim against the second defendant was lost by the Royal Mail. Hence, I have to make an application to add the second defendant to my second claim against the first defendant
These two applications were listed for a one-hour hearing.
The judge rejected my application for disclosure against the first defendant because he said that the information required was already provided to me by the first defendant. I disagree but this application is not very important
The judge rejected also my application to add the second defendant to my second claim against the first defendant because he says they are about matters which should be dealt with separately. I disagree but this is not very important
The first defendant made an application to strike out my second claim but it was not considered by the judge during this hearing because it was not served on me so I was not aware of it
Five minutes before the end of this hearing the judge decided on his own initiative to consider an application to strike out this second claim.
The judge asked me to explain to him why he should not strike out my claim. I was taken by surprise because I was not prepared to make an oral representation to defend my claim because I was not aware that the issue of the striking out of my claim will be raised during this hearing. As a consquence my oral representation was of bad quality because it was improvised
I was not able to make any written representation also because I was not aware that the issue of the striking out of my claim will be raised at this hearing.
Therefore, the judge struck out this second claim saying that the facts to which I refer to it were already considered in my first claim. I disagree with this
I would like to know if I can make an application under CPR 3.3 (5) to set aside this order to strike out my second claim so that I have the possibility during a second hearing to properly defend my second claim by being able to prepare in advance proper oral and written representations.
I am frustrated for not having been able during the first hearing to properly defend my second claim to prevent it from being struck out
If the order was made using the powers in rule 3.3(4), whether the order says so or not, then the option in 3.3(5) is available.
Are your replies here improvised?
Do you or other members of this forum think that according to the information that I have provided this order was issued under 3.3(4)
My replies are improvised
Can the order be made under other conditions?
Hide in the noise. #hackerwisdom
That is exactly what I have been trying to say. @world : what else could it have been?
The situation has to be pretty damn clear for a judge to do this. You need to look very hard at this to see if there is any merit at all in your claim. Perhaps I should put it another way, why nobody else can see any merit.
Be mindful that the court has warned you as to costs.
I am not worried about the strength of my second claim because there has been further harassment after the first claim ended. Moreover, since my second claim was struck out new evidence has emerged. I am sure that if I am given a chance to put forward proper oral and written representations a fair judge will accept my claim. The judge who struck out my claim did not have all the information in hand because I was not able to properly defend my claim
I am worried because the court may not accept to consider my application to set aside because we are in a special situation because usually the court makes an application to strike out a claim on its own initiative when considering the claim on papers and the claimant can make an application to set aside this order and have his application heard at a hearing. However, in my case there has already been a hearing
We are also in a special situation because usually when an order is made under CPR 3.3(4) it is stated on it the right to make an application to have it set aside according to CPR 3.3(5) (b) which says
“(b) the order must contain a statement of the right to make such an application.”
However, this was not stated in the order to strike out my claim which means that I was not aware of this possibility until now when I realise that I can make this application. As a consequence, it is now two years that my second claim was struck out and I wonder if the court will accept to consider it because of these two years because CPR 3.3(6) says
“(6) An application under paragraph (5)(a) must be made –
(a) within such period as may be specified by the court; or
(b) if the court does not specify a period, not more than 7 days after the date on which the order was served on the party making the application.”
However, maybe I can say in my application notice that I could not be blamed for not having made my application early because it is not stated in the order to strike out that I have the right to make this application in contravention with CPR 3.3(5) (b)
The issue is that I would like to be sure that the court will consider my application and that it will list a hearing where it will be heard because I do not want to waste the £255 court fee of this application