Costs of discontinuing a claim—displacing the presumption
Costs of discontinuing a claim—displacing the presumption

The following Dispute Resolution guidance note provides comprehensive and up to date legal information covering:

  • Costs of discontinuing a claim—displacing the presumption
  • The presumption in favour of the defendant on discontinuance
  • Displacing the presumption—general principles
  • Whether the claimant would have succeeded at trial had the claim continued
  • Reason for discontinuance
  • Change of circumstance since the claim was issued
  • Examples of a change of circumstance
  • Defendant's conduct as a reason for disapplying the presumption
  • Defendant’s conduct as a reason to reduce the costs payable
  • Can an order be made against another defendant?

This Practice Note sets out the general rule in CPR 38.6 that on discontinuing a claim, the claimant will pay the defendant costs unless that presumption that defendant will recover its costs is displaced. The guiding principles in respect of discontinuance costs are set out in the case of Teasdale v HSBC Bank, approved by the Court of Appeal in Brookes v HSBC Bank. The Practice Note sets out the application of these principles and the issues the court will consider when determining whether to depart from this general rule, eg the reasons for the discontinuance and whether the claimant would have succeeded at trial had the claim continued, any change in circumstances which justifies the switch in recoverability from defendant to claimant and the defendant’s conduct during the proceedings as justification for departure from the general rule on discontinuance.

The presumption in favour of the defendant on discontinuance

When a claimant discontinues the proceedings, there is a presumption by reason of CPR 38.6 that the defendant should recover their costs.

The presumption in CPR 38.6 is that the discontinuance of a claim by a claimant against a defendant will usually amount to an admission or an acceptance that the proceedings should never have been commenced. In such a case, the starting point must be that the defendant is entitled to

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