The following Dispute Resolution guidance note provides comprehensive and up to date legal information covering:
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 its costs (Ashany v Eco-Bat Technologies Ltd).
For information on the presumption, see Practice Note: Costs of discontinuing a claim—the general rule.
The guiding principles in this area are those drawn from existing authorities by Judge Waksman QC in 2010 in Teasdale v HSBC Bank, as approved by Moore-Bick LJ in the 2011 Court of Appeal decision in Brookes v HSBC Bank:
when a claimant discontinues the proceedings, there is a presumption by reason of CPR 38.6 that the defendant should recover their costs; the burden is on the claimant to show a good reason for departing from that position. See also the 2010 Court of Appeal decision of Messih v McMillan Williams). The rationale for this is that a person commencing litigation takes on litigation risk which includes a failure to progress
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