//Grounds for Early Dismissal of Claims

Grounds for Early Dismissal of Claims

The law provides a remedy to dismiss unmeritorious and unsustainable claims early before putting the defendant to the expense of a full trial.

The High Court has three separate jurisdictions to strike out proceedings before they come to trial. The first two arise under the Rules of the Superior Courts. The third jurisdiction arises pursuant to the inherent jurisdiction of the High Court.

The Rules of the Superior Court – Order 19, Rule 28

The Rules of the Superior Court provide that, “the Court may order any pleadings to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.”

The words “frivolous” and “vexatious” are legal terms. If the plaintiff has no reasonable chance of success, then the law says that it is frivolous to bring a case. Similarly it is a hardship on the defendant in having to defend something that cannot succeed and the law calls this vexatious.  This includes the hardship of expending time, effort and money in defending an action.

In deciding applications, courts examine the form and content of the pleadings. Despite this, a lay litigant (a party bringing litigation without legal representation) will not be deprived of a right of access to the courts due to lack of drafting skills. Therefore, an application to dismiss will fail if the deficiency in the pleadings can be rectified by amendment.

Under the rule the court has jurisdiction to strike out an entire pleading, for example the Statement of Claim, but not part of a pleading.

The granting of an Order striking out the plaintiff’s claim for failing to disclose a reasonable cause of action and for being frivolous and/or vexatious, is not exercised lightly, but with real caution.

The real purpose of the rule is to ensure that there is no abuse of process. Courts are entitled to ensure that the privilege of access to the courts will only be used for the resolution of genuine disputes and not as a forum for lost causes. It also ensures litigants are not subjected to the time consuming, expensive and worrying process of being asked to defend a claim which cannot succeed.

The Rules of the Superior Court – Order 19 Rule 27

The Rules of the Superior Courts provides that, “the Court may at any stage of the proceedings order to be struck out or amended any matter in any endorsement or pleading which may have been unnecessary or scandalous, or which may tend to prejudice, embarrass or delay the fair trial of the action; and may in such case, if it shall think fit, order the costs of the application to be paid as between solicitor and client.”

Pursuant to this rule, the court may strike out any part of a pleading. A pleading includes, “an originating summons, statement of claim, defence or counterclaim, reply, petition or answer.”

In order to justify its exclusion, the material which is sought to be excluded from the pleading must be capable of being described as:-

  • Unnecessary or
  • Scandalous or
  • Tending to prejudice, embarrass or delay the fair trial of the action.

This rule is useful where a party objects to the contents of the pleadings of the other party. It is not appropriate where a party seeks to strike out the proceedings in their entirety.

The Inherent Jurisdiction of the Court

The High Court retains an inherent jurisdiction to dismiss claims at an early stage which are bound to fail or are frivolous/vexatious. There is an overlap between the jurisdiction of the High Court under Order 19, Rule 28 and the inherent jurisdiction. In exercising inherent jurisdiction and deciding whether proceedings are vexatious, courts can look at the entire history of the dispute. However, unlike under Order 19, Rule 28, the court is not confined to a consideration of whether the pleadings disclose a cause of action. The court is free to hear evidence on affidavit relating to the issues in the case.

It is for the court to determine whether the proceedings are being brought without any reasonable ground or whether the proceedings have been brought habitually and persistently without reasonable ground.

Recent Cases

A distinction must be drawn between proceedings which are obviously vexatious and frivolous, and those which have no reasonable chance of success despite being based on genuine justiciable matters.

In recent times, we were successful in having  claims against our clients struck out in their entirety in two cases, pursuant to Order 19, Rule 28 and pursuant to the court’s inherent jurisdiction, for failure to disclose a reasonable cause of action and for being vexatious.

In the first case the judge held that the proceedings were vexatious, in every sense of the word, and were an abuse of process. The Judge said that the lay litigant plaintiff had no reasonable chance of succeeding and that it would be oppressive to require our client to have to take on the burden of defending proceedings, which were fundamentally misconceived.

The second case fell into the court’s inherent jurisdiction. The judge was keen to ensure that in hearing the motion that the court did not interfere with the right to a trial. The court’s duty was to conduct a robust inquiry to establish if the plaintiff had a reasonable cause of action. Furthermore, the fact that our client would have no chance of recovering legal costs was noted.

The court held that the allegation of negligence against our client was frivolous and vexatious. The court exercised its inherent jurisdiction to ensure there was no abuse of process of the courts and struck out the plaintiff’s action in its entirety against our client.

There is no doubt that these dismissals early on in the legal process saved on substantial costs at a later date.


The law provides a remedy to dismiss unmeritorious and unsustainable claims early before putting the defendant to the expense of a full trial.

These claims can be struck out early in the legal process without waiting until the end of a lengthy and expensive process, such as occurred in the recent Ian Bailey trial where many of the allegations were held to be statute barred and therefore had no reasonable chance of success.

2018-11-13T10:48:08+00:00July 31st, 2015|Publications|

About the Author:

Donal Creaton is a Partner in our litigation department and joined the firm in 1987. He specialises in defence litigation for corporate clients, arbitration, alternative dispute resolution, and professional negligence […]

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