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Strike Out Summons issued prematurely

In a recent ex tempore ruling on costs, the Grand Court gave some instructive guidance on the appropriate timing for the issuing of a Strike Out Summons.

In the matter of Ctrip Investment Holding Limited v eHi Car Services Limited, Justice Kawaley held that it was not reasonable for the defendant, eHi, to issue a Strike Out Summons at the same time as a Notice pursuant to O.12, r.8A of the Grand Court Rules which provides that any person named as a defendant in a writ which has not been served on him may serve on the plaintiff a notice requiring him within a specified period not less than 14 days after service of the notice either to serve the writ on the defendant or to discontinue the action as against him.

The Court held that the actions of eHi, who were represented by Carey Olsen, effectively exposed Ctrip not just to the costs of the writ and such costs as might reasonably be incurred in relation to O.12, r.8A, but also the additional costs of the Strike-out Summons as well.

In effect, Ctrip was fully entitled to discontinue its writ within the 14 day period without having to deal with a prematurely issued Strike Out Summons.

In his summation, Justice Kawaley stated

it would take an exceptional case indeed for it to be viable to have a strike out application effectively heard before the Plaintiff has exercised its election within the 14 day period contemplated by O.12, r.8A. In my judgment, the present case is not one that falls into the category of cases where a Strike-out Summons was required or was indeed reasonable.”

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