I am called upon to advise about this scenario or something like it every once in a while:

X never met Y before. They do not know each other.

Or they knew each other or about each other, but never had any commercial or personal dealings with each other before, directly or indirectly. There is no relationship between them in whatever shape or form. Zero. Nada.

One day, X sues Y for a tort of assault. Y is flabbergasted. Who is X and on what basis is X suing him? Y will ask, Can X sue me even if he has no case?

The answer is, yes, X can. Whether X succeeds in suing Y is a different matter altogether.

Anyone can sue another even if they have no merit whatsoever to their claim.

Members of the public seem to think the courts automatically and immediately rejects a baseless or frivolous claim. This does not happen.

Let me explain why. In the process, you will learn how a claim is dealt with in the courts.

First, to file a claim against someone, you must file a Writ of Summons and Statement of Claim. The Writ of Summons (Writ), which the court affixes its digital seal, is an order to the person receiving the Writ to attend court. The Statement of Claim (SOC) is a concise factual summary of the claim.

All a frivolous claim needs to be is plausible sounding.

The court does not immediately read the SOC once a case is filed. Once filed, the SOC merely entered into the court file. It will only be read when necessary. That is why even though a claim is filed in court, the court itself actually knows nothing about it.

Next, the Writ and SOC must be served on the defendant. He will likely be outraged and file a Statement of Defence refuting the claim.

A competent lawyer is likely to advise the defendant to apply to strike out the SOC for various reasons pursuant to Order 18 Rule 19 of Rules of Court 2012 (RC12). A SOC can be struck out for (a) not disclosing a reasonable cause of action or (b) for being scandalous, frivolous and vexatious or (c) prejudicing, embarrassing and delaying the fair action of a trial or (d) being an abuse of court process.

Only when the defendant files a striking-out application does the court consider the SOC whether the claim has any substance and basis. But just because a striking-out application is filed does not necessarily mean the court may strike out the claim.

At this preliminary stage of the case, the court is concerned with form over substance. The latter is dealt with only at trial. Since the court has not heard the evidence of either party about their claim it is wary about prejudging a claim or defence before it hears the evidence.

If a plaintiff can set out a plausible claim or show the presence of ‘triable issues’ about his claim, the court is likely to dismiss the application and order the claim for a full trial where witnesses are called and documents tendered. A ‘triable issue’ is a material factual dispute about the claim.

The court is reluctant to strike out a claim before a full trial when there are triable issues on the face of the claim. The court only strikes out claims where the pleaded case in the SOC is ‘obviously unsustainable’. That is an uncommon thing. The court’s preferred approach is to decide the claim after a trial, after hearing the evidence so all that needs to be considered is conclusively brought before it.

If a defendant does not file or loses such an application the claim will be sent for trial preparation. Since 1.10.2022, a defendant that loses his striking out application in the High Court or subordinate courts cannot appeal against the decision: see sections 28(1)(c) and 68(1)(f) of the Courts of Judicature Act 1964 (CJA64).

So, if a defendant fails to strike out a baseless claim, he is condemned to having to defeat the claim at trial. This is the danger of a well-crafted plausible claim which has no basis in fact or law.

Then, if the baseless claim is set for trial, the lawyers have to prepare the usual trial documents such as the Bundle of Pleadings (which contains the Statement of Claim and Statement of Defence), the Common Bundle of Documents (CBD), the Statement of Agreed Facts, the Statement of Issues to be Tried, and the witness statements to be used as evidence for the examination-in-chief at trial.

After all that is filed, only then will the court set the claim down for trial.

At the trial, witnesses will be examined. Once the examination of witnesses is completed, written arguments (known as submission) are filed for the judge to consider. That is followed by an oral submission at a hearing. After that, the judge pronounces the court’s decision. It is only at this point that the court can and will decide the merits of the baselessness of the claim.

A victim of a baseless claim has to go through this whole due process to defend himself if a plaintiff can frame his claim to sound plausible in a Statement of Claim. If the court does not see through the sham claim during the striking-out application, the hapless defendant has to fight the case as if it were a claim of merit against him. That is the only time the court will consider the propriety of the claim at a preliminary stage i.e., before trial.

So even if the defendant wins, he loses. Even in triumph, he remains wounded. He would have incurred a fair bit of legal fees and expenses i.e., filing fees, affirmation fees, etc. And that is assuming the vexatious plaintiff pays what is due. If he does not then the defendant will have to enforce the orders for cost against him. That will take further time, effort and expense.

A baseless claim is likely to leave a defendant more damaged from the experience compared to a frivolous and vexatious plaintiff. It drains a defendant emotionally, psychologically and financially. It also disappoints their expectations about the legal process.

The real question about frivolous or baseless claims is not whether it can be filed but why it is filed.

It is natural to think a frivolous or baseless claim is necessarily a stupid one. But that is sloppy thinking. Yes, there are the irredeemably stupid claims. That’s down to a lack of competence or LQPs. Those are the punt claims.

Then there are the frivolous or baseless claims filed for strategic reasons. The claim serves a collateral purpose. Frivolous or baseless claims are filed, for example, to distract, agitate, anger, scare, overwhelm, drain the funds of the other side and overwhelm them. Frivolous or baseless claims hog valuable court time and effort, and so are an abuse of the court process.

A rule of thumb for me is this: the richer and more powerful a plaintiff or so connected, the likelier the frivolous or baseless claim is not a stupid claim but a strategic one. It is filed to serve a collateral strategic hidden purpose of the plaintiff or the plaintiff’s ultimate master.

What appears to be stupid sometimes is strategic. But most times, stupid is just stupid.