District Court Rules

ORDER 47B

DISCONTINUANCE AND WITHDRAWAL

1 Discontinuance or withdrawal of claim or part of claim

1. (1) The claimant may:

(a) before receipt of the respondent’s appearance and defence or defence; or

(b) after receipt of the respondent’s appearance and defence or defence, but before taking any other step in the proceedings (except any interlocutory application),

(i) wholly discontinue his claim against all or any of the respondents by written notice (Form 47B.01, Schedule C) served on each respondent and filed with the Clerk; or

(ii) withdraw any part or parts of his alleged cause of action by written notice (Form 47B.01, Schedule C) served on each respondent and filed with the Clerk.

(2) Where a claimant serves a notice under sub-rule (1), the claimant must pay the respondent’s costs of the proceedings or, if the claim is not wholly discontinued, the costs occasioned by the part of the alleged cause of action withdrawn.

(3) sub-rule (2) does not apply to small claims.

(4) If not agreed, the applicable scale or amount of costs may be determined by the Court.

(5) Discontinuance or withdrawal under sub-rule (1) is not a defence to any subsequent claim.

(6) Save as provided in this Order, a claimant may not withdraw or discontinue a claim without the permission of the Court.

(7) The Court may at the hearing or trial, on the claimant’s application, order or permit the claim to be discontinued, or any part of the alleged cause of action to be struck out, on such terms as to costs, and as to any other action and otherwise as the Court considers just.

2 Withdrawal of defence

2. (1) The Court may at the hearing or trial, on the respondent’s application, order or permit all or any part of the respondent’s grounds of defence to be struck out, on such terms as to costs, and as to any other action and otherwise as the Court considers just.

(2) A party who has filed an appearance and defence in a proceeding may not withdraw the defence or any part of it without the permission of the Court in accordance with sub-rule (1).

3 Withdrawal of claim on consent

3. (1) When a claim which is the subject of any claim notice has been settled or compromised by the parties, and does not require to proceed before the Court, the parties must produce to the Clerk a written consent signed by both parties (or their solicitors) confirming that the claim is not proceeding.

(2) sub-rule (1) applies whether or not the claim notice has been assigned a trial date.

4 Judgment for costs of discontinuance

4. A respondent is entitled to judgment for the costs of any proceedings which are wholly discontinued against him or her, or for the costs occasioned by the matter withdrawn, if the action be not wholly discontinued, if the costs concerned are not paid within four days after their amount is agreed or fixed by the Court.

5 Stay of subsequent claim

5. If any subsequent claim is brought before payment of the costs of a discontinued claim, for the same or substantially the same cause of action, the Court may order a stay of the subsequent claim until the costs of the discontinued claim have been paid.

6 Costs

6. If the amount of costs referred to in this Order is not specified in the Schedule of Costs or is not agreed by the parties, the Court may, on the application of the claimant or respondent, as the case may be, determine the scale of costs to apply, and if there is no such appropriate scale the Court may determine the amount of such costs.

7 Small claims—discontinuance or withdrawal of proceeding or claim

7. Despite rule 1, a claimant may discontinue a small claim proceeding or withdraw any part of a small claim at any time before the small claim proceeding has been referred to the Court without the permission of the Court or the consent of the other parties.

[SI 17/14]

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