Discontinuance In Small Claims
It might be that once you have started a claim, you decide you do not want to pursue it any further. If you have started a claim and want to end it, you can send to the court and the other side, a form called a “notice of discontinuance” (form N279).
It is a straight forward form to complete and once sent to court, will be put before a Judge to approve. Generally, Judges will approve this unless there is good reason not to. As well as sending it to the court, you should send it to the Defendant.
A word of warning though, if you are going to discontinue you should be careful when you do so, or there may be cost consequences. Judges have a very wide discretion as what to order about costs so there can never be certain. There is a risk a claimant takes if discontinuing and the timing of the discontinuance is important.
However, in small claims it is very unusual for costs to be ordered against either party (with the exception of court fees) and the position is not different if a claim is discontinued.
The Court Rules On Discontinuance And Legal Costs
The rules relating to discontinuance are found in the Civil Procedure Rules. It is worthwhile taking the time to read the relevant rules:
Rule 38.6 (1) states “Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant”
This means that if you discontinue you are automatically liable to pay the other side’s legal costs incurred, up to the point of service of the notice.
Rule 38.6(4) adds that the rule above does not apply to claims allocated to the small claims track.
Has your claim already been allocated to the small claims track? If so, the automatic rule about paying the other side’s costs does not apply.
So the key thing to get to the bottom of before deciding whether the timing it right, is whether the claim allocated to the small claims track as required under rule 38.6(4)?
A claim is usually allocated to a track (small claims track, fast track or multi track) after the following have all happened 1) a claim is issued 2) a defence has been filed and 3) directions questionnaires have been completed and sent to court. 4) After directions questionnaires have been filed, the court will usually send an order out to the parties confirming what track the claim has been allocated to. If you have not seen an order of the court stating that the matter has been allocated to the small claims track, proceed with discontinuance with extreme caution. It is much safer to wait until the claim has been allocated to the small claims track before discontinuing, because of the automatic costs implications set out above.
Read here for details on what happens after a claim is started and in particular the section about allocation.
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