Pleadings, such as a Statement of Claim or Defence and Counterclaim, are Court documents that can be difficult to get right, especially for self-represented litigants.
If your pleading is deficient, a common tactic for lawyers is to apply to the Court to strike out the proceedings, strike out the pleadings or party of them.
An application to strike out a Statement of Claim or Defence is often brought by lawyers against self-represented litigants who have prepared their own pleadings but also where lawyers are acting for both parties. This can result in a costs order, potentially an indemnity costs order against the self-represented party and can also mean that party may have their claim or defence struck out and judgment entered against them.
The Uniform Civil Procedure Rules 1999 (Qld) (UCPR 1999) set out rules for pleading properly in Queensland. There are many cases that deal with the application of these rules in applications to strike out proceedings or applications to strike out paragraphs of a pleading.
If you have prepared and filed your own Defence, the solicitors for the plaintiff may write to you demanding that you amend your Defence, otherwise they will apply to Court to strike it out and seek their costs of the application against you. Likewise if you have drafted your own Claim and Statement of Claim, a defendant may apply to have the claim struck out or parts of the statement of claim for various reasons such as they may allege paragraphs are “embarrassing” and ought to be struck out or that a pleading discloses no reasonable or known cause of action.
You may risk having your entire case dismissed if the pleading is inadequate and struck out. In some circumstances, the Court may dismiss your entire claim, a summary disposal of the case, even if you have a good case.
If your Statement of Claim or Defence is not prepared by an experience commercial litigation solicitor in accordance with the UCPR 1999, you increase your risk of a costs’ order being made against you on an application to strike out your Statement of Claim, Defence or Counterclaim.
The best way to avoid strike out applications in commercial litigation matters is to have your Statement of Claim or Defence prepared with plenty of time in advance by an experienced litigation lawyer.
Our commercial litigation solicitors have significant experience in preparing pleadings and dealing with, for example, applications to strike out a Statement of Claim, or an application to strike out a Defence.
If a solicitor has written to you threatening to make an application to Court against you, you should contact our litigation lawyers to discuss how we can assist you.
It is essential you have experienced solicitors when dealing with applications to Court to strike out pleadings. Our litigation and dispute resolution team will make sure your rights are protected.
Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000