Part 38 DISCONTINUANCE
| Title | Number |
|---|---|
| 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 |
| When discontinuance takes effect where permission of the court is not needed | Rule 38.5 |
| Liability for costs | Rule 38.6 |
| Discontinuance and subsequent proceedings | Rule 38.7 |
| Stay of remainder of partly discontinued proceedings where costs not paid | Rule 38.8 |
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. A “claim” includes a cause of action or part of one.
(2) A claimant who –
(a) claims more than one remedy; and
(b) subsequently abandons their claim to one or more of the remedies but continues with their claim for the other remedies,
is not treated as discontinuing all or part of a claim for the purposes of this Part.
(The procedure for amending a statement of case, set out in Part 17, applies where a claimant abandons a claim for a particular remedy but wishes to continue with his claim for other remedies)
Right to discontinue claim
38.2
(1) At any time, a claimant may discontinue all or part of a against one or more defendants at any time.
(2) However –
(a) a claimant must obtain the permission of the court if they wishes to discontinue all or part of a claim in relation to which –
(i) the court has granted an interim injunction(GL); or
(ii) any party has given an undertaking to the court;
(b) where the claimant has received an interim payment in relation to a claim (whether voluntarily or pursuant to an order under Part 25), he may discontinue that claim only if –
(i) the defendant who made the interim payment consents in writing; or
(ii) the court gives permission;
Procedure for discontinuing
38.3
(1) To discontinue a claim or part of a claim, a claimant must –
(a) file a notice of discontinuance; and
(b) serve a copy of it on every other party to the proceedings.
(2) The claimant must state in the notice of discontinuance that they have 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.
(4) Where there is more than one defendant, the notice of discontinuance must specify against which defendants the claim is discontinued.
(5) A notice of discontinuance must be in Form N279 unless the court permits otherwise.
Right to apply to have notice of discontinuance set aside
38.4
(1) Where the claimant discontinues under rule 38.2(1) the defendant may apply to have the notice of discontinuance set aside(GL).
(2) The defendant may not make an application under this rule more than 28 days after the date when the notice of discontinuance was served on them.
When discontinuance takes effect where permission of the court is not needed
38.5
(1) Discontinuance against any defendant takes effect on the date when notice of discontinuance is served on them under rule 38.3(1).
(2) Subject to rule 38.4, the claim is brought to an end as against that defendant on that date.
(3) However, this does not affect proceedings to deal with any question of 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 the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.
(2) If proceedings are only partly discontinued –
(a) the claimant is liable under paragraph (1) for costs relating only to the discontinued part of the proceedings; and
(b) unless the court orders otherwise, the costs which the claimant 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 the small claims track.
(Rule 44.9 provides for the basis of assessment where the right to costs arises on discontinuance and contains provisions about when a costs order is deemed to have been made and applying for an order under section 194(3) of the Legal Services Act 2007)
Discontinuance and subsequent proceedings
38.7
(1)A claimant who discontinues a claim needs the permission of the court to makeanother claim against the same defendant if—
(a)they discontinued the claim after the defendant filed a defence or, in a Part 8 claim,filed an acknowledgment of service or written evidence; and
(b)the other claim arises out of facts which are the same or substantially the same asthose relating to the discontinued claim.
(2)If the claimant considers that permission is needed, the application for permission shallbe included in the claim form and claim will proceed only if permission is granted.
(3)The defendant shall inform the court in writing as soon as practicable whether thedefendant asserts that permission is needed and, if so, whether the defendant consents topermission being granted.
(4)If the parties agree that permission should be granted, the court shall issue an ordergranting permission on the papers or make such other order as it thinks fit.
(5)If the parties disagree about whether permission should be granted, the court shalldetermine the issue either at a hearing or, in its discretion, on the papers after receiving writtenrepresentations.
(6)The defendant is not required to file an acknowledgment of service unless and untilpermission is granted.
Stay of remainder of partly discontinued proceedings where costs not paid
38.8
(1) This rule applies where –
(a) proceedings are partly discontinued;
(b) a claimant is liable to –
(i) pay costs under rule 38.6; or
(ii) make a payment pursuant to an order under section 194(3) of the Legal Services Act 2007; and
(2) Where this rule applies, the court may stay(GL) the remainder of the proceedings until the claimant pays the whole of the costs which the claimant is liable to pay under rule 38.6 or makes the payment pursuant to an order under section 194(3) of the Legal Services Act 2007.
(Rules 44.9 and 46.7 contain provisions about applying for an order under section 194(3) of the Legal Services Act 2007.)