Can You Strike Out a Case Bound to Fail?

The revised court rules by which proceedings may be struck out on the basis they have no reasonable cause of action or that they are bound to fail have recently been closely examined by the High Court. Commercial Disputes partners, Gearoid Carey and Gerard Kelly examine a decision which usefully puts the revised rules in context and explains how they may be used to bring ill-founded proceedings to an end.

A recent High Court decision has given some welcome interpretation of the revised text of Order 19, Rule 28 of the Rules of the Superior Courts (RSC). This provision of the RSC permits applications to strike out claims or parts of claims which are bound to fail.[1] The new version provides that the court may strike out a claim or part of a claim which:

• Discloses no reasonable cause of action
• Amounts to an abuse of process of the Court
• Is bound to fail, or
• Has no reasonable chance of succeeding

Order 19, Rule 28(3) further provides that the court may consider the pleadings and, if appropriate, the evidence in any affidavit filed in the context of the application. As noted in the judgment, since the rules were only revised in September 2023, there has been little guidance to date on the precise parameters of the legal test. The court therefore took the opportunity to address how the new test should be interpreted and it put the new rules in context regarding the power of the court to strike out proceedings.

Background

As a matter of Irish procedure, applications to strike out proceedings are brought either in reliance on the court’s inherent jurisdiction[2] or under Order 19, Rule 28 RSC. However, the summary judgment jurisdiction available in England and Wales under Part 24 of the Civil Procedure Rules (CPR)[3] to dismiss a case on the merits had never been available in Ireland. The Irish jurisdiction to strike out claims was and - as confirmed by Judge Simons regarding the new rules – is still much narrower. What an Irish court is entitled to consider as part of any strike out application is considerably more limited and therefore involves a higher threshold. In this case, both defendants had brought strike out applications under the new version of Order 19, Rule 28. Accordingly, the court needed to analyse the new provisions and, in doing so, it carried out a detailed assessment of the new rules as against the powers available under the court’s inherent jurisdiction.

Analysis

Judge Simons noted that, in order to come to a proper understanding of the relevant legal test, it was of assistance to consider the pre-amendment case law. He observed that, prior to the amendment, most strike out applications were made under the court’s inherent jurisdiction than under the old version of Order 19, Rule 28. This was because the old version of the rule “had been directed to the content of the formal pleadings” – what was relevant was whether the case as pleaded did not disclose any cause of action. By contrast, where the court’s inherent jurisdiction was relied on, the court could to a limited extent consider the underlying merits. If there was no credible basis for suggesting that the facts are as asserted and the proceedings are bound to fail on the merits, the proceedings could be dismissed. This is because the inherent jurisdiction treats such proceedings as an abuse of process.[4]

However, Judge Simons highlighted that the revised Order 19, Rule 28 now has the

“practical effect of eroding the previous distinction between the jurisdiction to strike out and / or dismiss proceedings pursuant to (i) Order 19 of the Rules of the Superior Courts, and (ii) the court’s inherent jurisdiction.”

He went on to observe that the effect of the amendment was to “codify the existing jurisprudence”. Indeed, the language in the revised rule “echo[es] the language used in the previous case law to describe the limits of inherent jurisdiction”.[5]

However, he warned that, unlike the summary judgment jurisdiction available in England and Wales under CPR Part 24, the revised position under Irish law was “not a means for inviting the court to resolve issues on a summary basis”. Therefore, while the new approach under the Irish court rules may be somewhat more relaxed, they are not akin to the English version of summary judgment.

The power of an Irish court to dismiss a case on a peremptory basis is still comparatively limited. Judge Simons explained that strike out applications are often be brought early in proceedings before evidence gathering mechanisms, such as discovery, interrogatories and the opportunity to subpoena witnesses, have been exhausted. He also stated, “experience has shown that cases which go to trial often take unusual turns on the facts which might not have been anticipated in advance.” Consequently, it is “not enough that the court might be satisfied that the case is a very weak one and is likely to be successfully defended”. He also cautioned how a strike out application will not be appropriate where the issues of law raised are not straightforward or where there is a factual controversy.

Those final observations were relevant to the application before him. There, one of the legal grounds pleaded was still evolving and it would not be appropriate to determine the issue on an interlocutory basis. Another ground was contingent on the first so that meant it too could not be determined. The other ground needed discovery in order to be substantiated so that militated against a successful application.

Conclusion

The decision constitutes a helpful exposition of the principles applicable to strike out applications generally. It also usefully confirms a broader approach to strike out applications under the revised Order 19, Rule 28, to include some consideration of the merits beyond the pleadings alone. According to Judge Simons, the effect of the is to bring the same test to bear under both routes by which strike out applications might be pursued. Hopefully, as the case law further develops, this will give greater consistency and certainty regarding the approach the courts adopt to such applications. Of course, even under the broader test as interpreted and applied by Judge Simons, he was still unwilling to strike out the proceedings which perhaps highlights the reluctance of the Irish courts to strike out proceedings generally. However, it is clear that on either approach to strike out is now permissible as a matter of Irish procedure, the same summary judgment jurisdiction as exists under English procedure is not available.

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[1] O’Malley v National Standards Authority of Ireland & Coillte Teo [2024] IEHC 500

[2] “Inherent jurisdiction” is generally understood as being the range of implied powers which are exercisable by judges for the purpose of regulating and administering the court’s processes.

[3] Where a court can, without the qualifications that exist under Irish procedure, find for a party without a full trial of the issues and hearing of evidence on the basis that the claim, defence or issue has no real prospect of success and there is no other compelling reason why the matter should be disposed of at trial.

[4] Noting, from Keohane v Hynes [2014] IESC 66, that “bringing a case which is bound to fail is an abuse of process”.

[5] He specifically cited “bound to fail” and “no reasonable chance of succeeding” as relevant examples.