Originally posted by R0b
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38.1
(1) The rules in this Part set out the 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 his 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)
Back to top Right to discontinue claim
38.2
(1) A claimant may discontinue all or part of a claim at any time.
(2) However –
(a) a claimant must obtain the permission of the court if he 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;
(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 or part of a claim against all or any of the defendants.
Back to top 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 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.
(4) Where there is more than one defendant, the notice of discontinuance must specify against which defendants the claim is discontinued.
Back to top 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 him.
Back to top 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 him under rule 38.3(1).
(2) Subject to rule 38.4, the proceedings are brought to an end as against him on that date.
(3) However, this does not affect proceedings to deal with any question of costs.
Back to top 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 part of the proceedings which he is discontinuing; 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)
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