Discontinuance Flashcards
(12 cards)
Who can discontinue a claim under CPR 38?
A. The defendant
B. The claimant
C. Either party
D. Only the court
B. The claimant
Only the claimant can discontinue a claim under CPR 38.2(1).
When does discontinuance take effect?
A. When the court gives permission
B. When the notice is filed at court
C. When the claimant communicates the decision
D. When the notice is served on the defendant
D. When the notice is served on the defendant
Discontinuance takes effect from the date of service of the notice – CPR 38.5(1).
What is the usual costs consequence of discontinuance?
A. The claimant pays their own costs
B. The defendant pays the claimant’s costs
C. The claimant pays the defendant’s costs
D. Each party bears its own costs
C. The claimant pays the defendant’s costs
CPR 38.6 states that the claimant is liable for the defendant’s costs unless the court orders otherwise.
When does a claimant need the court’s permission to discontinue?
A. When there is a counterclaim
B. When the claim involves more than one defendant
C. When the claimant has received an interim remedy
D. When the claim is discontinued after allocation
C. When the claimant has received an interim remedy
Permission is required if the claimant has had an interim payment or injunction – CPR 38.2(2).
A claimant discontinues part of a claim against two defendants. What is the default cost position?
A. The claimant must pay both defendants’ full costs
B. The claimant pays costs only for the discontinued part against the relevant defendant
C. The claimant pays no costs because only part was discontinued
D. Each party bears its own costs unless ordered otherwise
B. The claimant pays costs only for the discontinued part against the relevant defendant
CPR 38.6 limits liability to the discontinued part only.
Jane sues Liam. She receives an interim payment, then seeks to discontinue. What must happen?
A. The claim is automatically discontinued
B. Liam must agree to the discontinuance
C. The court must give permission
D. Jane must refund the payment to proceed
C. The court must give permission
CPR 38.2(2) requires permission if the claimant received an interim remedy.
A claimant discontinues a claim without informing the defendant. What is the legal status?
A. The claim is discontinued
B. The claim is stayed pending court approval
C. The notice has no effect until served
D. The court must be notified separately
C. The notice has no effect until served
Discontinuance is effective only from the date of service – CPR 38.5(1).
A defendant wins at trial, but the claimant argues the case was discontinued earlier. The notice of discontinuance was filed but not served. What is the likely result?
A. The trial judgment is void
B. The costs shift automatically to the claimant
C. The court will order mediation
D. The trial judgment stands because discontinuance never took effect
D. The trial judgment stands because discontinuance never took effect
Filing alone is not enough. Service is required for discontinuance to be effective.
A claimant discontinues only one out of three claims in a multi-track case. The defendant has already incurred substantial legal fees defending that discontinued claim. Which of the following is most accurate?
A. The defendant is entitled to recover costs related to the discontinued claim only, unless the court orders otherwise
B. The defendant is entitled to recover all their costs in the entire case
C. The claimant does not owe costs if the discontinuance was before allocation
D. The court must first approve any partial discontinuance before costs can be claimed
A. The defendant is entitled to recover costs related to the discontinued claim only, unless the court orders otherwise
Explanation: Under CPR 38.6(2), if a claim is discontinued only in part, the claimant is liable for the defendant’s costs relating to that part unless the court orders otherwise.
The claimant receives an interim payment from the defendant and then tries to discontinue the claim. What must the claimant do before discontinuance is effective?
A. Obtain the court’s permission to discontinue
B. Serve notice of discontinuance within 7 days
C. Refund the interim payment before filing
D. Apply to amend the defence
A. Obtain the court’s permission to discontinue
Explanation: Under CPR 38.2(2), the court’s permission is required to discontinue where the claimant has received an interim payment or some other remedy.
Which of the following best describes the costs implications under CPR 38 when a claim is discontinued entirely and no order is made otherwise?
A. A deemed costs order is made in favour of the defendant on the standard basis
B. The claimant pays indemnity costs
C. The costs order must be applied for separately
D. The costs are paid only if the case was close to trial
A. A deemed costs order is made in favour of the defendant on the standard basis
Explanation: CPR 38.6 combined with CPR 44.9(1)(c) provides that a deemed costs order is automatically made when a claim is discontinued.
A claimant files a notice of discontinuance but does not serve it on the defendant. What is the procedural consequence?
A. Discontinuance is not effective until it is served on the defendant
B. The claim is struck out
C. The court will automatically dismiss the case
D. The defendant may continue to trial and recover full costs
A. Discontinuance is not effective until it is served on the defendant
Explanation: CPR 38.5(1) states that discontinuance takes effect on service, not merely on filing.
