SETTING ASIDE NOTICE OF DISCONTINUANCE IN A QOCS CASE: TWO INTERESTING DECISIONS

July 20, 2015 · by gexall · in Civil Procedure, Costs, Members Content, QOCS

I am grateful to Rebecca Jones of Hardwicke Chambers for sending me details of an important decision in relation to setting aside a notice of discontinuance served by a claimant in a costs case. The note of the judgment below has been provided by Rebecca. The post on the Hardwicke Case Reports page...

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Tags: Abuse of process, QOCS, Striking out

2 Responses

Alexander Mellis · July 21, 2015 at 07:36:43 · →

I had one similar in Derby County Court recently. Defendant applied to strike out on an RTA claim the basis of inconsistent signatures on Statements of Truth and/or amend the Defence to plead fraud when the Claimant’s damage photographs were wholly inconsistent with a video taken at the accident location by the Defendant’s insured. The Claimant served a notice of discontinuance the day before that hearing (itself 3 weeks or so before trial).
Our judge set aside the notice on the Defendant’s application, made in the face of the court due the late provision of the notice. The strike out was refused as it was really a factual issue at stake and the amended defence allowed.
The net result is that the Claimant now appears to be locked into a trial of their claim, which they no longer want and at which the Defendant will be seeking a finding of fundamental dishonesty. An interesting idea.
Tim · July 22, 2015 at 22:37:49 · →

A notice of discontinuance should be set aside if it amounts to an abuse of process. Otherwise, it should stand and (if appropriate) the party serving it should be penalised in costs. See Wates v HGP.

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/TCC/2005/2174.html&query=title+(+wates+)+and+title+(+hgp+)&method=boolean