Once Court proceedings have started, the right to discontinue all or part of a claim is governed by CPR Part 38.
A Claimant is entitled to discontinue at any point. The presumption for so doing, is the Claimant is liable for the Defendant’s costs (CPR 44.15). At first blush discontinuing a claim does not appear beneficial for the Claimant. However if the claim is subject to qualified one-way costs shifting (QOCS) the Defendant cannot recover its costs without the Courts permission. QOCS applies in personal injury claims.
Can a defendant’s costs ever be recoverable following a claimant filing a notice of discontinuance in a personal injury claim? Yes. Case law has provided examples:
The claimant suffered an accident due to an uncovered manhole in the car park of a pub. An application to strike out was made as the defendant did not own the pub at the material time. The claimant was provided with additional time to carry out further investigations, but two days before the application was to be reheard, the claimant served a notice of discontinuance. The defendant applied to have the notice of discontinuance set aside and for the strike out application to proceed. The application to set aside and the strike out of the claim was successful. The defendant was entitled to enforce the resultant costs order. The judge considered the overriding objectives in the CPR (3.8) and in particular fairness and prejudice.
The defendant applied to set aside a late notice of discontinuance on the basis that it was a tactical move to avoid the strike out of the claim. It was struck out on the basis that there were no grounds for bringing the claim. Again the defendant was entitled to its costs.
Defendant’s when receiving a notice of discontinuance where QOCS applies generally make a commercial decision whether to seek to have the discontinuance set aside. CPR 38 allows a claimant to discontinue its claim at any time. The claimant is protected by QOCS.
Most claims discontinue because the claimant has during the proceedings reassessed its case and has decided that the risks outweigh pursuing the case to a successful conclusion. This on its own is not a reason to make an application to set aside a discontinuance. If the defendant suspects that the claimant has been fundamentally dishonest they do not need to make an application to set aside the discontinuance. Fundamental dishonesty is a separate topic in its own right.
Discontinuing a claim in a personal injury claim remains a useful tool in the armoury of the claimant.