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
  • Can an order be made against another defendant?

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 its costs (Ashany v Eco-Bat Technologies Ltd).

For information on the presumption, see Practice Note: Costs of discontinuing a claim—the general rule.

Displacing the presumption—general principles

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:

  1. 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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