Part 38

Discontinuance

 

Contents of this part

Scope of this part Rule 38.1

Right to discontinue claim Rule 38.2

Procedure for discontinuing Rule 38.3

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

Effect of discontinuance Rule 38.5

Liability for costs Rule 38.6

Discontinuance and subsequent proceedings Rule 38.7

 

Scope of this Part

38.1 (1) The rules in this Part set out the procedure by which a

claimant may discontinue all or part of a claim
    1. A claimant who -
    1. has alleged that he is entitled to more than one remedy; and
    2. subsequently abandons his claim to one or more of the remedies but continues with his claim for the other remedies;

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

(Rule 43.7 deals with consent orders which may include orders bringing an action to an end by way of a consent judgment or otherwise)

 

Right to discontinue claim

38.2 (1) The general rule is that a claimant may discontinue all

or part of his claim without the permission of the

court.
    1. However a claimant needs permission from the court if he wishes to discontinue all or part of a claim in relation to which -
    1. the court has granted an interim injunction; or
    2. any party has given an undertaking to the court.

(3) Where a claimant has received an interim payment in

relation to a claim (whether voluntarily or pursuant to

an order under Part 17) he may discontinue only if -
    1. the defendant consents in writing; or
    2. the court gives permission.
    1. Where there is more than one defendant the claimant may discontinue all or part of his claim against all or any of the defendants.

 

Procedure for discontinuing

38.3 (1) To discontinue a claim or part of a claim a claimant

must -
    1. file a notice of discontinuance; and
    2. serve a copy of it on every other party to the proceedings.
    1. The claimant must state in the notice of discontinuance which he files that he has served notice of discontinuance on every other party to the proceedings.
    2. Where the claimant needs the consent of some other party, a copy of the necessary consent must be attached to the notice of discontinuance.
    3. Where the claimant needs permission from the court, the notice of discontinuance must contain details of the order by which the court gave permission.

 

Right to apply to have notice of discontinuance set aside

38.4 (1) Where the claimant discontinues without the consent

of the defendant or the permission of the court the defendant may apply to have the notice of discontinuance set aside.
    1. The defendant may not make application under this rule more than 28 days after the date when the notice of discontinuance was served on him.

 

Effect of discontinuance

38.5 (1) Discontinuance against any defendant takes effect on

the date when the notice of discontinuance is served

on him under rule 38.3.
    1. The proceedings are brought to an end as against him on that date.
    2. However, this does not affect -
    1. the right of the defendant under rule 38.4 to apply to have the notice of discontinuance set aside; or
    2. any proceedings relating to costs.

 

 

Liability for costs

38.6 (1) Unless the court orders otherwise, a claimant who

discontinues is liable for the costs which a defendant

against whom he discontinues incurred on or before

the date on which notice of discontinuance was served

on him.
    1. If proceedings are only partly discontinued -
    1. the claimant is liable for only the costs relating to that part of the proceedings which he

      2. discontinues; and

    2. unless the court orders otherwise, the costs which the claimant is liable to pay may not be

taxed until the conclusion of the rest of the

proceedings; and

(c) the court may stay the remainder of the proceedings if the claimant fails to pay the costs as agreed or taxed within 21 days of agreement or taxation.

 

Discontinuance and subsequent proceedings

38.7 A claimant who discontinues a claim needs the permission of

the court to make a subsequent claim against the same

defendant if -
    1. he discontinued the claim after the defendant against who he discontinued filed a defence; and
    2. the subsequent claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.