Discontinuance

Various Means of Termination

Proceedings may terminate other than by reason of a final court order or a settlement.  Most of these instances involve a default by the claimant.  The claimant may also discontinue the proceedings either in the context of a settlement or the apprehended failure of the claim.

However, proceedings once started, cannot be discontinued by the plaintiff/claimant without consequences.  By commencing legal proceedings, the plaintiff runs the risk of liability for costs to third parties, even if he terminates them unilaterally.

Discontinuance and Withdrawal

Proceedings may be discontinued and withdrawn.  A defence can be  withdrawn. A claim may be withdrawn without leave prior to receipt of the defendant’s defence or prior to the taking of any step in proceedings, other than an interlocutory application.

Notice of discontinuance or withdrawal is served on the defendant.  Proceedings may be withdrawn against some defendants without being withdrawn against others.

Once litigation has been commenced, it may not be terminated without possible costs implications and without determination of counterclaims that may have been commenced. If the plaintiff discontinues proceedings, he must pay the defendant’s cost of the actions or costs for defending the particular claim that has been withdrawn.  This provision applies unless the court consents to the proceeding being withdrawn, other than on these terms.

Where there are multiple plaintiffs, a single plaintiff may not withdraw without the consent of the other plaintiff or the leave of court if he is a necessary party.

Where proceedings have been discontinued, they may be recommenced.  However, the court has discretion to grant leave on terms that no further proceedings shall be brought.

Up to Defence

The claimant may at any time before receipt of the defendant’s defence (or after receipt thereof before taking any other step other than an interlocutory application) may by notice in writing, wholly discontinue the claim against all or any of the defendants or withdraw any part or parts of the alleged claim.  This is done by giving notice in writing in Form No. 20 in Appendix C.

He shall thereupon pay the defendant’s cost of action unless the court orders otherwise. The defendant’s costs may include costs of applications made before that time in which costs had been reserved. Therefore, they may include the costs of interlocutory proceedings.

He may discontinue the entire claim or part of it. If the action is not wholly discontinued he shall pay the costs occasioned by the matter withdrawn.  Such costs may be adjudicated, unless agreed.

Taking “proceedings” for the purpose of the above rule is taking a formal step in the action. Taking steps for discovery is not necessarily a proceeding for the above purpose.

Consent of Defendant

The claimant may,  at any time prior to setting down of the trial, wholly discontinue his action with or without costs to be paid by any party upon producing consent in writing signed by all parties or by their solicitors. Such costs, if any, may be adjudicated. This may apply where proceedings have been settled, and the position as to costs is agreed upon in this case.

When a cause has been entered for trial, it may be withdrawn by either plaintiff or defendant, upon producing to the proper officer a consent in writing signed by the parties or by their solicitors.  The consent shall include the list number and trial venue of the case.

Settlement

Where proceedings have been settled, the plaintiff may discontinue proceedings without leave by filing the consent of all parties prior to setting down the action for trial. In other circumstances, the plaintiff must make an application for leave to discontinue the proceeding, which the court may grant upon such terms as it determines.

In theory, the court could refuse consent to discontinue. The defendant is generally entitled to his costs up to the date of the order.

Leave of Court

Save as otherwise provided as above, it shall not be competent for the plaintiff to discontinue the action without leave of the Court. The  Court may before, at, or after, the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise, as may be just, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out.

The Court may, in like manner, and with the like discretion as to terms, upon the application order the whole or any part of his alleged grounds of defence or counterclaim to be withdrawn or struck out. It is not competent for a defendant to withdraw his defence, or any part thereof, without such leave.

Courts have the discretion to refuse discontinuance. However, it will generally be allowed unless it causes injustice to the other party. The court may grant leave to discontinue, provided no injustice is caused. It is not practical or desirable that the plaintiff should be compelled to litigate against his will.

The court may impose terms on which it allows a party to discontinue. It generally requires that the plaintiff pays the costs of the defendant to the date of discontinuance.

Effect of Discontinuance

Discontinuance brings proceedings to an end. If there is a counterclaim brought before discontinuance, it may continue separately. However, a counterclaim cannot be brought after proceedings have been discontinued.

Any defendant may enter judgment for the costs of the action if it is wholly discontinued against him, or for the costs occasioned by the matter withdrawn if the action is not wholly discontinued, in case such respective costs are not paid within four days after taxation.

Such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action.

If any subsequent action shall be brought before payment of the costs of a discontinued action for the same or substantially the same cause,  the court may order a stay of such action until such costs have been paid.

Discontinuance Issues

Where there are co-plaintiffs, the plaintiff may not withdraw without the consent of the others or leave of court if that party is a necessary party to the action. If there are separate claims, the plaintiff may serve a notice of discontinuance without leave.  Discontinuance may be an abuse of process where it is done for taking proceedings in another jurisdiction for tactical advantage.

If any subsequent action shall be brought before payment of the costs of a discontinued action for the same, or substantially the same, cause of action, the court may order a stay of such subsequent action until such costs shall have been paid. This power is discretionary.

Subsequent Proceedings

Generally, where a plaintiff has failed in one action commences another, the court will stay or suspend the proceedings until the costs of the first proceedings have been paid. This may apply even if their technical differences in the line-up of the parties.

Where a party discontinues proceedings, the subsequent discovery of relevant evidence which might enhance the chance of success in the discontinued claim is an insufficient basis for setting it aside. There is an inherent power for the discontinuance to be withdrawn with the consent of the court.  However, this will only be given in very exceptional circumstances.

There must be a mistake or misunderstanding causing real prejudice. It must not cause prejudice to the other side. In many cases, this will be so.

Withdrawal of Defence

The court, in like manner and with the like discretion as to terms upon the application of the defendant, orders the whole or any part as the alleged grounds of defence or counterclaim to be struck out.  A defendant may not withdraw his defence or any part of it without leave of court.