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Discontinuance Notes

BPTC Law Notes > BPTC Civil Ligitation Notes

This is an extract of our Discontinuance document, which we sell as part of our BPTC Civil Ligitation Notes collection written by the top tier of City Law School students.

The following is a more accessble plain text extract of the PDF sample above, taken from our BPTC Civil Ligitation Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

DISCONTINUANCE (CPR 38)

38.1, Scope of this Part
-(1) This Part sets out procedure by which a CLAIMANT may discontinue all or part of a claim.
-(2) A Claimant who:
o (a) claims more than one remedy; AND
o (b) subsequently abandons his claim to one or more of the remedies but continues with this claim for the other remedies

? is NOT treated as discontinuing all or part of a claim for the purposes of this Part.
o In that case, the procedure for amending a statement of case (Part 17) would apply instead.

38.2, Right to discontinue claim
-(1) A Claimant may discontinue all/part of a claim AT ANY TIME
-(2) HOWEVER:
o (a) a Claimant must obtain PERMISSION of court if he wishes to discontinue all/part of a claim in relation to which :
-(i) the court has granted an interim injunction; OR
-(ii) any party has given an undertaking to the court.
o (b) Where C has received an interim payment in relation to a claim
(whether voluntarily or pursuant to a Part 25 order) ? he may discontinue that claim ONLY IF:
-(i) the defendant (who made the interim payment) consents in writing; OR
-(ii) the court gives permission.
o (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/part of a claim against any or all of the defendants.

38.3, Procedure for discontinuing
-(1) To discontinue a claim/part of a claim ? C must:
o (a) FILE A NOTICE of discontinuance; AND
o (b) SERVE A COPY on every other party to the proceedings
-(2) The claimant must state in the notice 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.
o NB: will need consent of another party where:
o C has received an interim payment (needs consent of the D in writing
[or court's permission]); or

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