Part 2 of Nathanael Young’s Dispute Resolution Monthly Series
There is a particular danger in litigation that has very little to do with the law itself.
It is the moment when being right becomes more important than asking whether you can prove it.
You believe you have been wronged. You have the emails, the messages, the documents and, perhaps, a chronology so detailed that it could rival the production notes of a historical documentary. You have spent evenings researching legal principles, reading online forums and drafting what you consider to be a compelling account of events.
You are confident. Perhaps even certain.
Then a solicitor writes to you. They question the legal basis of your claim, challenge the way it has been pleaded or suggest that the proceedings should never have been brought in their current form.
You dismiss the letter as intimidation. You conclude that the other side is trying to avoid answering for its conduct. You respond with a longer letter, more allegations and several additional authorities discovered online.
And then the other side makes an application to strike out your claim.
Suddenly, the question is no longer simply whether you were wronged. It is whether your claim is legally sustainable, whether you have complied with the relevant procedural rules and whether the court should allow the proceedings to continue at all.
That is a very different battle.
And if you are conducting it without legal representation, you may not appreciate just how much is at stake until you are already in the middle of it.
The strike-out application: when the case itself becomes the problem
A strike-out application is one of the more serious procedural challenges a litigant can face. Rather than merely disputing the evidence or arguing that the other party is mistaken, the applicant asks the court to remove all or part of a statement of case from the proceedings.
Under CPR 3.4(2), the court may strike out a statement of case where:
- It discloses no reasonable grounds for bringing or defending the claim.
- It amounts to an abuse of the court’s process or is otherwise likely to obstruct the just disposal of proceedings.
- There has been a failure to comply with a rule, practice direction or court order.
The precise circumstances matter. Not every defective pleading will be struck out, and not every application succeeds. Some problems can be corrected through amendment, clarification or compliance with procedural requirements.
But a strike-out application is not something to dismiss simply because you believe the underlying dispute is important.
Nor is it necessarily a declaration that the other side is right about everything that happened.
It is a challenge to the legal and procedural foundation of your case.
That distinction is critical. You may have a genuine grievance and still have pleaded a claim that does not disclose a legally recognisable cause of action. You may have evidence of unpleasant behaviour without establishing a breach of a legal duty. You may be convinced that the other party has acted improperly without explaining what legal right you have to the remedy you are seeking.
The court cannot simply convert a compelling personal narrative into a viable claim.
And the more time and money you have invested in litigation, the harder it may become to recognise that distinction.
The danger of representing yourself
There is nothing inherently wrong with a litigant representing themselves. People do so for many reasons, including the cost of legal representation.
But there is a difference between being entitled to represent yourself and being adequately equipped to do so.
Litigation is not simply a matter of telling your story persuasively. It involves identifying the correct legal cause of action, pleading the material facts, understanding the burden of proof, complying with procedural deadlines, selecting the appropriate remedy and responding to legal arguments that may be unfamiliar to you.
A litigant in person may understand every detail of the dispute and still struggle to identify which details are legally relevant.
They may know precisely what happened at a meeting but not appreciate why the distinction between a personal dispute and a claim belonging to a company matters. They may have evidence of a disagreement but fail to identify the contractual term, statutory provision or legal duty said to have been breached. They may ask for an injunction without appreciating the evidence and undertakings that such an application can require.
These are not necessarily failures of intelligence or sincerity. They are often failures of legal experience.
A solicitor who regularly conducts litigation is trained to distinguish between facts that are emotionally significant and facts that are legally material. They can assess whether the proposed claim has a proper foundation, whether the correct party is bringing it, whether the evidence supports the allegations and whether the remedy sought is available.
Just as importantly, they can advise when a claim should not be pursued in its current form.
That last point can be difficult to hear. A person who has spent months preparing for litigation may regard any suggestion of weakness as a betrayal of their position. But independent legal advice is not supposed to reinforce your certainty. It is supposed to test it.
Sometimes the most valuable advice a lawyer can give is that the proposed case needs to be changed, narrowed, settled or abandoned.
The danger is not simply that a litigant in person may lose. It is that they may not recognise the risk of losing until the consequences have become expensive.
A long story is not necessarily a strong claim
One recurring problem in litigation is the assumption that a sufficiently detailed account of wrongdoing must amount to a sufficiently strong legal case.
It does not.
CPR 16.4 requires particulars of claim to contain a concise statement of the facts on which the claimant relies. The precise requirements depend on the nature of the claim and any applicable rules or practice directions, but the underlying principle is straightforward: the defendant must be able to understand the case they are required to answer.
Consider the difference between these two allegations.
“The defendant engaged in a prolonged conspiracy to obstruct me, acted dishonestly, threatened those who supported me and deliberately undermined my position.”
And:
“On [date], the defendant did [specific act]. The claimant alleges that this breached [identified contractual term or legal duty] because [relevant facts]. The claimant seeks [identified remedy] as a result.”
The second formulation is not automatically a valid claim. It still needs a proper legal basis and sufficient supporting facts. But it begins to identify the questions that matter.
Who did what? When? What legal obligation was breached? How does the alleged conduct give rise to the remedy claimed?
The first formulation may communicate anger, suspicion or a sincerely held belief. It does not, without more, tell the defendant precisely what legal case must be answered.
This is where an unrepresented claimant can become vulnerable. They may believe that adding allegations strengthens their position. In reality, a pleading crowded with irrelevant accusations, unparticularised claims of conspiracy and lengthy personal grievances can obscure the actual issue.
The result may be a statement of case that is difficult to answer and difficult for the court to manage.
The court is not there to conduct an open-ended investigation into every perceived injustice between the parties. It is there to determine the legal dispute properly before it.
Sometimes, the most effective pleading is not the longest one. It is the one that makes the legal case clear.
The ego trap: when every criticism becomes another allegation
There is a psychological dimension to this problem.
Once litigation begins, a party can become increasingly invested in their own version of events. Every unanswered email becomes suspicious. Every procedural objection feels like an attempt to evade responsibility. Every criticism of the claim is interpreted as evidence that the other side is worried.
The possibility that the criticism might be justified becomes harder to entertain.
This is the ego trap.
A solicitor explains that the claim does not identify a recognisable cause of action. The response is to repeat the history of the dispute.
The solicitor asks for clarification of a particular allegation. The response is to introduce several more.
The defendant challenges whether the company properly authorised proceedings. The response is that the defendant has behaved disgracefully and should therefore be held accountable.
But misconduct alleged against a defendant does not automatically answer a challenge to the claimant’s authority to sue. Nor does it remedy a failure to plead the elements of a cause of action.
These are separate questions.
A claim must stand on its own legal foundation. Pointing out that the other side may have behaved badly, or that its own case may contain weaknesses, does not repair defects in yours.
This is particularly important where the dispute involves a company, its directors, shareholders or competing office-holders.
A person may feel personally wronged by events involving a company. That does not necessarily mean that the person owns the cause of action. The right to bring proceedings may belong to the company, and the company must act through the appropriate decision-making and authorisation processes.
A director’s personal involvement does not, by itself, establish that they have authority to commence proceedings on the company’s behalf. Equally, a dispute about who controls a company may require a different procedure from an ordinary claim for damages.
The substance of the dispute matters more than the label attached to it.
An application to strike out can expose these issues at an early stage. It can force the claimant to confront a question they may have spent months avoiding: is this actually the right claim, brought by the right person, against the right defendant, using the right procedure?
The answer may be uncomfortable. But ignoring the question will not make it disappear.
When the other side starts asking questions
There is a particular irony in the way some disputes develop.
A litigant in person issues proceedings, confident that the facts speak for themselves. The defendant instructs solicitors. A letter arrives questioning the basis of the claim. The claimant then searches the solicitor’s name, visits the firm’s website and begins looking for an explanation of the legal arguments being raised.
Perhaps that is how they arrive at this article.
If so, the immediate reaction may be that it must be directed at them. They may wonder whether the solicitor has already decided to apply for strike-out, whether the claim is weaker than they thought or whether they have missed something important.
The fact that a solicitor has viewed a website or that an article discusses strike-out applications does not, by itself, establish that an application is planned or that a particular claim is defective.
But the underlying concern is worth taking seriously.
If the other side is questioning the legal basis of your claim, the appropriate response is not automatically to assume that it is a delaying tactic. Nor should you assume that the criticism must be correct.
It is to examine the issue objectively.
What precise defect is alleged? Does the claim identify a recognised cause of action? Are the material facts pleaded? Is the correct claimant bringing the proceedings? Has the required authority been obtained? Is the remedy sought legally available? Have the relevant rules and court orders been complied with?
These are questions that deserve proper answers.
Searching online may help you understand the terminology. It cannot reliably substitute for an assessment of your own pleadings, evidence, procedural history and objectives.
A paragraph found on a legal website may describe a general principle without addressing the exceptions, factual distinctions or procedural context that determine how it applies to your case.
The risk is that you find an answer that sounds reassuring, adopt it as confirmation of your existing view and continue along the same course.
Confidence is not the same as a legal assessment.
Injunctions: when trying to win early can backfire
The risks become particularly acute when a claimant seeks an interim injunction.
An injunction may be necessary to prevent harm that cannot adequately be addressed by a later award of damages. But it is not simply a way of forcing the other side to concede before trial.
The court will consider the applicable legal principles, including whether there is a serious issue to be tried, whether damages would be an adequate remedy, the balance of convenience and any other relevant circumstances. A cross-undertaking in damages may also be required.
The precise analysis depends on the application. Where the relief sought would effectively determine the dispute before trial, the court may scrutinise the position with particular care.
This matters in control disputes, company governance disputes and cases where one party seeks to exclude another from exercising a role or controlling an organisation.
An applicant may believe that the urgency of the situation justifies immediate relief. But urgency does not remove the need to establish a proper legal basis, explain the alleged harm, formulate the order precisely and address the consequences if the injunction is wrongly granted.
An overbroad application, inadequately supported by evidence or directed at the wrong legal issue, can create further problems rather than solve the original one.
A litigant who is not familiar with injunction practice may underestimate the legal and financial risks involved.
Before asking the court to intervene urgently, it is worth obtaining advice on whether the remedy is available, whether the evidence supports it and whether the potential consequences have been properly considered.
The cost of refusing to reconsider
A strike-out application can carry consequences beyond the immediate question of whether a claim continues.
If the application succeeds, the claimant may face an adverse costs order. If it fails, costs may still be an issue, depending on the circumstances and the court’s decision. The result is not determined by which party feels more aggrieved.
The court has discretion over costs, and the outcome will depend on matters including the nature of the application, the parties’ conduct and the applicable rules.
There may also be circumstances in which a non-party costs order is sought against someone who has funded or controlled proceedings brought by another party, including a company. CPR 46.2 provides a procedural framework for such applications. These orders are not automatic: the court must consider the circumstances, the relevant safeguards and whether making the order is just.
In a company dispute, for example, the fact that proceedings were issued in the company’s name does not necessarily end the inquiry into who funded, controlled or stood to benefit from them.
The risk should not be exaggerated, but neither should it be ignored.
Legal costs can accumulate while a party argues about the history of a dispute, resists requests for clarification or continues with a claim without addressing an identified defect. Even where a pleading can be amended, the process of doing so may involve additional time, expense and procedural complications.
The most expensive mistake may therefore be not the original defect, but the refusal to address it once it has been identified.
There is a difference between defending a claim you reasonably believe is sound and pursuing it at any cost because abandoning or changing course feels like admitting defeat.
The court is not responsible for protecting a litigant from the financial consequences of every decision they make. Nor does a genuine belief in the merits of a claim guarantee protection from adverse costs.
Sometimes, the sensible decision is to obtain advice, narrow the issues, amend the pleading, explore settlement or reconsider whether the proceedings should continue.
That is not necessarily surrender. It may be the first properly strategic decision made in the dispute.
Before you issue proceedings, ask the uncomfortable questions
Before commencing a claim — or deciding how to respond to a strike-out application — consider the following:
- Who owns the claim? Are you bringing your own claim, or seeking to enforce a right belonging to a company or another person?
- Is the defendant the right party? Personal involvement in a dispute does not automatically establish personal liability.
- What is the cause of action? Identify the legal right, obligation or duty said to have been breached.
- What are the material facts? Set out what happened, who did it, when it occurred and how it supports the claim.
- What evidence supports it? Distinguish between what you can establish and what you suspect.
- What remedy can the court grant? Ensure that the relief sought follows from the legal basis of the claim.
- Have the procedural requirements been met? Check the applicable rules, practice directions, deadlines and court orders.
- Is the proposed course proportionate? Consider the likely costs, risks and practical benefit of continuing.
- Have you obtained independent legal advice? In particular, consider having a litigation solicitor review the proposed claim, the response to any strike-out application or an application for urgent injunctive relief.
You do not necessarily need a solicitor for every procedural step. Some litigants in person conduct their cases successfully. But the more complex the dispute, the greater the value of obtaining advice before avoidable errors become entrenched.
A targeted review of a draft pleading or a particular application may identify problems that would otherwise become expensive to correct later.
The key is to obtain advice early enough for it to make a difference.
The uncomfortable truth: being right is not enough
There is a reason strike-out applications deserve attention.
They bring the focus back to the foundations of a claim. They ask whether the proceedings disclose a proper legal case, whether the court’s process is being used appropriately and whether the dispute can fairly continue in its present form.
A claimant may have experienced genuine unfairness. They may have compelling evidence of what happened. They may even be correct in their belief that the other party acted improperly.
But none of those things, standing alone, guarantees a viable claim.
The law requires more than conviction. It requires a recognised legal basis, properly pleaded facts, compliance with procedure and a remedy the court can grant.
And where a party represents themselves, the absence of independent legal scrutiny can make it harder to recognise the difference between a grievance and a claim, between an allegation and evidence, and between confidence and legal strength.
The danger is not that litigants in person are incapable of understanding the law. It is that litigation contains traps that are difficult to identify when you are
simultaneously the person telling the story, deciding which facts matter, researching the rules and defending your own assumptions.
A solicitor’s role is not simply to make a case sound more impressive. It is to test whether the case works, identify its weaknesses and advise on the risks before those weaknesses become costly.
Sometimes that advice will confirm that a claim should proceed. Sometimes it will identify a problem that can be corrected. Sometimes it will mean telling a client something they would rather not hear.
That is precisely why it matters.
The most dangerous assumption in litigation is that because you are certain you have been wronged, the legal system must ultimately vindicate you.
It may. But certainty is not a substitute for legal analysis, and persistence is not a substitute for a viable cause of action.
My second piece of dispute resolution advice is this: before you commit to the battle, make sure you understand the case you are actually fighting.
Because when a strike-out application arrives, the question may no longer be whether you can tell your story convincingly.
It may be whether the court will allow you to tell it at trial at all.
Part 2 of Nathanael Young’s Dispute Resolution Monthly Series.
Part 3: The Art of Avoiding Court — ADR, Mediation and the Business of Making Peace.
