#16062 - Discontinuance - BPC Civil Litigation

DISCONTINUANCE (CPR 38)

38.1, Scope of this Part

• (1) This Part sets out procedure by which a CLAIMANT may discontinue all or part of a claim.

• (2) A Claimant who:

  • (a) claims more than one remedy; AND

  • (b) subsequently abandons his claim to one or more of the remedies but continues with this claim for the other remedies

  • is NOT treated as discontinuing all or part of a claim for the purposes of this Part.

  • In that case, the procedure for amending a statement of case (Part 17) would apply instead.

38.2, Right to discontinue claim

• (1) A Claimant may discontinue all/part of a claim AT ANY TIME

• (2) HOWEVER:

  • (a) a Claimant must obtain PERMISSION of court if he wishes to discontinue all/part of a claim in relation to which:

    • (i) the court has granted an interim injunction; OR

    • (ii) any party has given an undertaking to the court.

  • (b) Where C has received an interim payment in relation to a claim (whether voluntarily or pursuant to a Part 25 order) he may discontinue that claim ONLY IF:

    • (i) the defendant (who made the interim payment) consents in writing; OR

    • (ii) the court gives permission.

  • (c) Where there is more than one claimant, a claimant may NOT discontinue UNLESS:

    • (i) every other claimant consents in writing; OR

    • (ii) the court gives permission.

• (3) Where there is more than one DEFENDANT the Claimant may discontinue all/part of a claim against any or all of the defendants.

38.3, Procedure for discontinuing

• (1) To discontinue a claim/part of a claim C must:

  • (a) FILE A NOTICE of discontinuance; AND

  • (b) SERVE A COPY on every other party to the proceedings

• (2) The claimant must state in the notice which he files THAT he has served notice of discontinuance on every other party to the proceedings.

• (3) Where the Claimant needs the consent of some other party a copy of the necessary consent must be attached to the notice of discontinuance.

  • NB: will need consent of another party where:

  • C has received an interim payment (needs consent of the D in writing [or court’s permission]); or

  • Where there is more than one Claimant (needs consent in writing of every other claimant [or court’s permission]).

• (4) Where there is more than one Defendant: the notice of discontinuance must specify against which defendants the claim is discontinued.

38.4, Right to apply to have notice of discontinuance set aside

• (1) Where the Claimant discontinues under 38.2(1) the Defendant may apply to have the notice of discontinuance set aside.

• (2) The Defendant may not make an application to set aside more than 28 DAYS after date when notice was served on him [[I.E. MUST make the application within or including 28 days]]

• EG where D would want to set aside:

  • Where discontinuance was serve to pre-empt the effective service of a counterclaim

  • Was served to avoid the imposition of an onerous term in a consent order.

38.5, When discontinuance takes effect where permission of the court is NOT needed

• (1) Discontinuance against any defendant takes effect ON THE DATE when notice of discontinuance is served on him under 38.3(1).

• (2) Subject to 38.4 [right to apply to set aside] the proceedings are brought to an end as against the defendant on that date.

• (3) HOWEVER, this does NOT affect proceedings to deal with any question of COSTS.

• NB, permission is required (38.2(2)) when]]

  • Court has granted in interim injunction; OR

  • Any party has given an undertaking to the court;

  • OR C has received interim payment (and D doesn’t consent);

  • Or multiple Cs (and other Cs don’t consent).

38.6, Liability for costs

• (1) Unless court orders otherwise, a Claimant who discontinues is liable for the costs which a defendant against whom C discontinues incurred on or before the date on which notice of discontinuance was served on the D.

• (2) If proceedings are only partly discontinued:

  • (a) The Claimant is liable under para (1) for costs relating only to the part of the proceedings which he is discontinuing; AND

  • (b) unless court orders otherwise, the costs which C is liable to pay must not be assessed until the conclusion of the rest of the proceedings.

• (3) This rule does NOT apply to claims allocated to small claims track

• [[r44.9 provides the basis for assessment where the right to costs arises on discontinuance and contains provisions re when a costs order is deemed to have been made and applying for an order under s194(3) LSA 2007).

38.7, Discontinuance and subsequent proceedings

• A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant,...