Q&As

Can a defendant discontinue its counterclaim and if so, what is the procedure for doing so and what are the cost consequences?

read titleRead full title
Produced in partnership with David Willink of Lamb Chambers
Published on LexisPSL on 19/02/2018

The following Dispute Resolution Q&A produced in partnership with David Willink of Lamb Chambers provides comprehensive and up to date legal information covering:

  • Can a defendant discontinue its counterclaim and if so, what is the procedure for doing so and what are the cost consequences?
  • Procedure
  • Costs

Can a defendant discontinue its counterclaim and if so, what is the procedure for doing so and what are the cost consequences?

An ‘additional claim’ is any claim other than the claim brought by the claimant against the defendant: CPR 20.2(2)(a). A counterclaim is, therefore, a species of additional claim. (This is clear from the heading of CPR Part 20—Counterclaims and other additional claims.)

The principle is that, save for exceptions that are not relevant here, an additional claim is treated as if it were a claim for the purposes of the Civil Procedure Rules 1998 (CPR 20.3(1)).

The procedure and consequences for discontinuing a counterclaim are therefore essentially same as for discontinuing a claim.

Procedure

Given that a counterclaim is treated as claim, CPR Part 38 will also govern the discontinuance of a counterclaim. The procedure for discontinuing is set out in CPR 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

Popular documents