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There are currently no known outstanding effects for the The Civil Procedure Rules 1998, PART 38.
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Scope of this Part | Rule 38.1 |
Right to discontinue claim | Rule 38.2 |
Procedure for discontinuing | Rule 38.3 |
Right to apply to have notice of discontinuance set aside | Rule 38.4 |
When discontinuance takes effect where permission of the court is not needed | Rule 38.5 |
Liability for costs | Rule 38.6 |
Discontinuance and subsequent proceedings | Rule 38.7 |
Stay of remainder of partly discontinued proceedings where costs not paid | Rule 38.8 |
38.1—(1) The rules in this Part set out the procedure by which a claimant may discontinue all or part of a claim. [F1A “claim” includes a cause of action or part of one.]
(2) A claimant who—
(a)claims more than one remedy; and
(b)subsequently abandons [F2their] claim to one or more of the remedies but continues with [F2their] claim for the other remedies,
is not treated as discontinuing all or part of a claim for the purposes of this Part.
(The procedure for amending a statement of case, set out in Part 17, applies where a claimant abandons a claim for a particular remedy but wishes to continue with his claim for other remedies)
Textual Amendments
F1Words in rule 38.1(1) inserted (6.4.2023) by The Civil Procedure (Amendment) Rules 2023 (S.I. 2023/105), rules 1(1), 21(1)(a)
F2Word in rule 38.1(2)(b) substituted (6.4.2023) by The Civil Procedure (Amendment) Rules 2023 (S.I. 2023/105), rules 1(1), 21(1)(b)
Commencement Information
38.2—(1) [F3At any time, a claimant] may discontinue all or part of a claim [F4against one or more defendants].
(2) However—
(a)a claimant must obtain the permission of the court if [F5they wish to] discontinue all or part of a claim in relation to which—
(i)the court has granted an interim injunction(GL); or
(ii)any party has given an undertaking to the court;
(b)where the claimant has received an interim payment in relation to a claim (whether voluntarily or pursuant to an order under Part 25), he may discontinue that claim only if—
(i)the defendant who made the interim payment consents in writing; or
(ii)the court gives permission;
(c)where there is more than one claimant, a claimant may not discontinue unless—
(i)every other claimant consents in writing; or
(ii)the court gives permission.
F6(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
F3Words in rule 38.2(1) substituted (6.4.2023) by The Civil Procedure (Amendment) Rules 2023 (S.I. 2023/105), rules 1(1), 21(2)(a)
F4Words in rule 38.2(1) substituted (1.10.2023 immediately after S.I. 2023/572 comes into force) by The Civil Procedure (Amendment No. 3) Rules 2023 (S.I. 2023/788), rules 1(1), 20(1)(a)
F5Words in rule 38.2(2)(a) substituted (1.10.2023 immediately after S.I. 2023/572 comes into force) by The Civil Procedure (Amendment No. 3) Rules 2023 (S.I. 2023/788), rules 1(1), 20(1)(b)
F6Rule 38.2(3) omitted (6.4.2023) by virtue of The Civil Procedure (Amendment) Rules 2023 (S.I. 2023/105), rules 1(1), 21(2)(c)
Commencement Information
38.3—(1) To discontinue a claim or part of a claim, a claimant must—
(a)file a notice of discontinuance; and
(b)serve a copy of it on every other party to the proceedings.
(2) The claimant must state in the notice of discontinuance [F7that they have] served notice of discontinuance on every other party to the proceedings.
(3) Where the claimant needs the consent of some other party, a copy of the necessary consent must be attached to the notice of discontinuance.
(4) Where there is more than one defendant, the notice of discontinuance must specify against which defendants the claim is discontinued.
[F8(5) A notice of discontinuance must be in Form N279 unless the court permits otherwise.]
Textual Amendments
F7Words in rule 38.3(2) substituted (6.4.2023) by The Civil Procedure (Amendment) Rules 2023 (S.I. 2023/105), rules 1(1), 21(3)(a)
F8Rule 38.3(5) substituted for words in rule 38.3 (1.10.2023 immediately after S.I. 2023/572 comes into force) by The Civil Procedure (Amendment No. 3) Rules 2023 (S.I. 2023/788), rules 1(1), 20(2)
Commencement Information
38.4—(1) Where the claimant discontinues under rule 38.2(1) the defendant may apply to have the notice of discontinuance set aside(GL).
(2) The defendant may not make an application under this rule more than 28 days after the date when the notice of discontinuance was served on [F9them].
Textual Amendments
F9Word in rule 38.4(2) substituted (6.4.2023) by The Civil Procedure (Amendment) Rules 2023 (S.I. 2023/105), rules 1(1), 21(4)
Commencement Information
38.5—(1) Discontinuance against any defendant takes effect on the date when notice of discontinuance is served on [F10them] under rule 38.3(1).
(2) Subject to rule 38.4, the [F11claim is] brought to an end as against [F12that defendant] on that date.
(3) However, this does not affect proceedings to deal with any question of costs.
Textual Amendments
F10Word in rule 38.5(1) substituted (6.4.2023) by The Civil Procedure (Amendment) Rules 2023 (S.I. 2023/105), rules 1(1), 21(5)(a)
F11Words in rule 38.5(2) substituted (6.4.2023) by The Civil Procedure (Amendment) Rules 2023 (S.I. 2023/105), rules 1(1), 21(5)(b)(i)
F12Words in rule 38.5(2) substituted (6.4.2023) by The Civil Procedure (Amendment) Rules 2023 (S.I. 2023/105), rules 1(1), 21(5)(b)(ii)
Commencement Information
38.6—(1) Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom [F13the claimant] discontinues incurred on or before the date on which notice of discontinuance was served on [F14the defendant].
(2) If proceedings are only partly discontinued—
(a)the claimant is liable under paragraph (1) for costs relating only to the [F15discontinued] part of the proceedings F16...; and
(b)unless the court orders otherwise, the costs which the claimant is liable to pay must not be assessed until the conclusion of the rest of the proceedings.
(3) This rule does not apply to claims allocated to the small claims track.
(Rule [F1744.9] provides for the basis of assessment where [F18the] right to costs arises on discontinuance [F19and contains provisions about when a costs order is deemed to have been made and applying for an order under section 194(3) of the Legal Services Act 2007])
Textual Amendments
F13Words in rule 38.6(1) substituted (1.10.2008) by The Civil Procedure (Amendment) Rules 2008 (S.I. 2008/2178), rules 1(2), 18(a)(i)
F14Words in rule 38.6(1) substituted (1.10.2008) by The Civil Procedure (Amendment) Rules 2008 (S.I. 2008/2178), rules 1(2), 18(a)(ii)
F15Word in rule 38.6(2)(a) inserted (6.4.2023) by The Civil Procedure (Amendment) Rules 2023 (S.I. 2023/105), rules 1(1), 21(6)(a)
F16Words in rule 38.6(2)(a) omitted (6.4.2023) by virtue of The Civil Procedure (Amendment) Rules 2023 (S.I. 2023/105), rules 1(1), 21(6)(b)
F17Word in rule 38.6 substituted (1.10.2013) by The Civil Procedure (Amendment No.7) Rules 2013 (S.I. 2013/1974), rules 2, 15(a)
F18Word in rule 38.6 inserted (1.10.2008) by The Civil Procedure (Amendment) Rules 2008 (S.I. 2008/2178), rules 1(2), 18(b)(i)
F19Words in rule 38.6 inserted (1.10.2008) by The Civil Procedure (Amendment) Rules 2008 (S.I. 2008/2178), rules 1(2), 18(b)(ii)
Commencement Information
38.7—(1) A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if—
(a)they discontinued the claim after the defendant filed a defence or, in a Part 8 claim, filed an acknowledgment of service or written evidence; and
(b)the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.
(2) If the claimant considers that permission is needed, the application for permission shall be included in the claim form and claim will proceed only if permission is granted.
(3) The defendant shall inform the court in writing as soon as practicable whether the defendant asserts that permission is needed and, if so, whether the defendant consents to permission being granted.
(4) If the parties agree that permission should be granted, the court shall issue an order granting permission on the papers or make such other order as it thinks fit.
(5) If the parties disagree about whether permission should be granted, the court shall determine the issue either at a hearing or, in its discretion, on the papers after receiving written representations.
(6) The defendant is not required to file an acknowledgment of service unless and until permission is granted.]
Textual Amendments
F20Rule 38.7 substituted (6.4.2023) by The Civil Procedure (Amendment) Rules 2023 (S.I. 2023/105), rules 1(1), 21(7)
38.8—(1) This rule applies where—
(a)proceedings are partly discontinued;
[F21(b)a claimant is liable to—
(i)pay costs under rule 38.6; or
(ii)make a payment pursuant to an order under section 194(3) of the Legal Services Act 2007; and]
(c)the claimant fails to pay those costs [F22or make the payment] within [F2314] days of—
(i)the date on which the parties agreed the sum payable by the claimant; or
(ii)the date on which the court ordered the costs to be paid [F24or the payment to be made].
(2) Where this rule applies, the court may stay(GL) the remainder of the proceedings until the claimant pays the whole of the costs which [F25the claimant] is liable to pay under rule 38.6 [F26or makes the payment pursuant to an order under section 194(3) of the Legal Services Act 2007]
[F27(Rules [F2844.9 and 46.7] contain provisions about applying for an order under section 194(3) of the Legal Services Act 2007.)]
Textual Amendments
F21Rule 38.8(1)(b) substituted (1.10.2008) by The Civil Procedure (Amendment) Rules 2008 (S.I. 2008/2178), rules 1(2), 19(a)
F22Words in rule 38.8(1)(c) inserted (1.10.2008) by The Civil Procedure (Amendment) Rules 2008 (S.I. 2008/2178), rules 1(2), 19(b)(i)
F23Word in rule 38.8(1)(c) substituted (3.7.2000) by The Civil Procedure (Amendment No. 3) Rules 2000 (S.I. 2000/1317), rules 1, 10 (with rule 39)
F24Words in rule 38.8(1)(c)(ii) inserted (1.10.2008) by The Civil Procedure (Amendment) Rules 2008 (S.I. 2008/2178), rules 1(2), 19(b)(ii)
F25Words in rule 38.8(2) substituted (1.10.2008) by The Civil Procedure (Amendment) Rules 2008 (S.I. 2008/2178), rules 1(2), 19(c)(i)
F26Words in rule 38.8(2) inserted (1.10.2008) by The Civil Procedure (Amendment) Rules 2008 (S.I. 2008/2178), rules 1(2), 19(c)(ii)
F27Words in rule 38.8 inserted (1.10.2008) by The Civil Procedure (Amendment) Rules 2008 (S.I. 2008/2178), rules 1(2), 19(d)
F28Words in rule 38.8 substituted (1.10.2013) by The Civil Procedure (Amendment No.7) Rules 2013 (S.I. 2013/1974), rules 2, 15(b)
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