Is the court’s permission required to discontinue a claim?
Discontinuance is the method by which a claimant brings the claim they initiated to an end.
This process is set out at CPR Rule 38 with ‘claim’ being helpfully defined (as of 6 April 2023) as including “a cause of action or part of one”. CPR Rule 38.2(2) confirms that a claimant can choose to discontinue a claim at any time and they can discontinue all or part of the claim. However, the claim will not be considered to have been discontinued if a remedy is still being sought even after the abandonment of another (CPR Rule 38.1(2)).
Under certain circumstances, that claimant will first require the court’s permission before they can discontinue.
Those circumstances are as follows (as per CPR Rule 38.2):
- Where the court has granted an interim injunction;
- Where any party within the proceedings has given an undertaking to the court;
- Where the claimant has received an interim payment in relation to the claim they can either obtain consent in writing (to discontinue) from the defendant who made the interim payment or obtain the court’s permission; and
- Where there is more than one claimant they must receive permission from all other claimants to discontinue or obtain the court’s permission.
To discontinue, the claimant will need to file and serve a notice of discontinuance. CPR Rule 38.5 states that discontinuance of a claim will take effect on service of a notice of discontinuance.
However, if the court’s permission to discontinue is required, the claimant will also need to prepare and file an application for permission from the court. The claimant cannot choose to make this application at a different court, it must be made at the court allocated to deal with the claim that they are seeking to discontinue.
There are major costs consequences to discontinuing a claim. Such consequences will be considered in a future post.
Should you need any advice from our litigation specialists please contact our commercial litigation team here without delay.