Part 37 – Discontinuance

Scope of this Part

37.1

1. The Rules in this Part set out the procedure by which a claimant may discontinue all or any part of a claim.
2. A claimant who –
   1. claims more than one remedy; and
   2. subsequently abandons a claim to one or more remedies but continues with the claim for the other remedies; is not treated as discontinuing part of a claim for the purposes of this Part.
      • Rule 42.7 deals with consent orders which may include orders bringing a claim to an end by way of a consent judgment or otherwise,

Right to discontinue claim

37.2

1. The general rule is that a claimant may discontinue all or part of a claim without the permission of the court.
2. However –
   1. a claimant needs permission from the court to discontinue all or part of a claim in relation to which –
      1. any party has given an undertaking to the court; or
      2. the court has granted an interim injunction;
   2. a claimant who has received an interim payment in relation to a claim (whether voluntarily or pursuant to an order under Part 17) may discontinue only if the –
      1. court gives permission; or
      2. defendant who made the payment consents in writing;
   3. if there is more than one claimant, a claimant may not discontinue unless –
      1. every other claimant consents in writing; or
      2. the court gives permission.
3. If there is more than one defendant the claimant may discontinue all or part of the claim against all or any of the defendants.

Procedure for discontinuing

37.3

1. To discontinue a claim or any part of a claim a claimant must –
   1. serve a notice of discontinuance on every other party to the claim; and
   2. file a copy of it.
2. The claimant must certify on the filed copy that notice of discontinuance has been served on every other party to the claim.
3. If the claimant needs the consent of some other party, a copy of the necessary consent must be attached to the filed copy of the notice of discontinuance.
4. If the claimant needs permission from the court, the notice of discon­tinuance must contain details of the order by which the court gave permission.
5. If there is more than one defendant, the notice of discontinuance must specify against which defendant or defendants the claim is discontin­ued.

Right to apply to have notice of discontinuance set aside

37.4

1. If the claimant discontinues without the consent of the defendant or the permission of the court, any defendant who has not consented may apply to have the notice of discontinuance set aside.
2. A defendant may not apply under this rule more than 28 days after the date when the notice of discontinuance was served on that defendant.

 Effect of discontinuance

37.5

1. Discontinuance against any defendant takes effect on the date when the notice of discontinuance is served on that defendant under rule 37. 3 (1) (a).
2. A claim or the relevant part of a claim is brought to an end as against that defendant on that date.
3. However, this does not affect –
   1. any proceedings relating to costs; or
   2. the right of the defendant under rule 37.4 to apply to have the notice of discontinuance set aside.

Liability for costs

37.6

1. Unless the –
   1. parties agree; or
   2. court orders otherwise; a claimant who discontinues is liable for the costs incurred by the defendant against whom the claim is discontinued, on or before the date on which notice of discontinuance was served.
2. If a claim is only partly discontinued –
   1. the claimant is only liable for the costs relating to that part of the claim which is discontinued; and
   2. unless the court orders otherwise, the costs which the claimant is liable to pay are not to be quantified until the conclusion of the rest of the claim.

 Quantification of costs

37.7

1. The general rule is that, unless an order has been made for budgeted costs under rule 65.8, the costs are to be determined in accordance with the scale of prescribed costs contained in Part 65, Appendices B and C.
2. If the claimant discontinues part of the case only, the amount of costs must be assessed by the court when the remainder of the claim is resolved.
3. In determining the appropriate amount of costs to be paid where an order has been made under rule 65.8 (budgeted costs), the court may take into account any written information provided by either party when the costs budget was made.

 Discontinuance and subsequent proceedings

37.8

1. If the claimant –
   1. discontinues a claim after the defendant against whom the claim is discontinued has filed a defence; and
   2. makes a subsequent claim against the same defendant arising out of facts which are the same or substantially the same as those relating to the discontinued claim; and
   3. has not paid the defendant’s costs of the discontinued claim; the court may stay the subsequent claim until the costs of the discon­tinued claim are paid.