What is a ‘strike out’?
If a case is ‘struck out’ it means the Court has dismissed it without a full hearing of all of the evidence. There are particular rules governing how a civil case may proceed; these are Civil Procedure Rules. Under Rule 3.4, the court can ‘strike out’ the whole or part of a ‘statement of case’ (a document which each side produces, setting out the summary of their legal arguments). Rule 24.2 enables the court to give summary judgement against a claimant or defendant where that party has no real prospect of succeeding on his claim or defence. Both those powers may be exercised on an application by a party in the case, or on the court’s own initiative. In other words, one of the sides can apply to the court for a strike out, or the court can just decide to apply one should the need arise.
‘Strike’ out applications against the eight women case
This case faced two applications by the police to have the women’s entire case struck out. Each time an application is made, a hearing is convened so that the court can hear the police’s arguments in favour of their application, and the women’s arguments against it.
The first strike-out hearing took place in November 2012 before Judge Tugendhat, over the statement of case of three of the women. These are the three who are making Human Rights claims, as well as common law claims. As well as the strike-out application, that hearing heard other applications from the police the about how that case would proceed if their strike out application should fail. This included their bid to have the women’s claims sent to the IPT, a secret court. Following that hearing, Judge Tugendhat rejected the strike out application, and the proceedings of the case moved on to a fight over whether it should get sent to a secret court.
The police’s second strike out application, this time concerning the other five women (who are only able to make common law claims), was originally scheduled for March 2014. The police were set to argue that their own ‘policy’ of Neither Confirm Nor Deny (NCND) would prevent them from receiving a fair trial, and that the case should therefore be struck out. However, the application was withdrawn at the last minute.
What are the conditions in which a ‘strike out’ might happen?
Rule 3.4 applies if the court thinks that there is no case to answer, or that the claimants unlikely to succeed (in winning the case). The court might decide that the statement of case discloses no reasonable grounds for bringing or defending a claim (rule 3.4(2)(a)), or which is an abuse of the process of the court, or otherwise likely to obstruct the just disposal of the proceedings (rule 3.4(2)(b)).
In the police’s first application for a strike out, they claimed that the women’s case were an ‘abuse of the process of the court’, since (they claimed) only the IPT, not the High Court, had jurisdiction over the women’s human rights claims. However, Judge Tugendhat disagreed that there was an abuse of process in this respect.
The second police application was around police’s claim that the there are circumstances that are likely to obstruct the just disposal of the proceedings. In this instance they planned to claim that they would be unable to get any defence off the ground because of the policy of ‘not confirming or denying’ the identity of the undercover officers. This is their “Neither Confirm Nor Deny” policy, also called NCND for short. As with the previous strike out application, they made additional applications to the court should their strike out application not be granted. And as with the previous application, these additional applications ask the court to protect the proceedings with secrecy; NCND is their argument here too. When their strike out application was withdrawn, so were the additional applications for secrecy.
Further details of the second bids for secrecy bids can be found here [link], and for more information about NCND, see here .
For an overview of the case, see The Case
