A notice of discontinuance allows a claimant to formally end legal proceedings they have started against a defendant. While the procedural step may appear straightforward, the costs consequences of discontinuance can be significant.

Under the Civil Procedure Rules, the default position is that a claimant who chooses to discontinue their claim will usually become liable for the defendant’s costs incurred up to the point the claim ends. For litigators and costs professionals, understanding how these rules operate is essential when advising clients on litigation risk, settlement strategy, and recoverability costs.

 

The CPR Rules on Discontinuance Costs

The starting point is CPR 38.6, which 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 our before the date on which the notice of discontinuance was served on the defendant

This rule establishes the general principle that a claimant who discontinues is liable for the defendant’s legal costs. Those costs are typically recoverable up to the date the discontinuance was served on the defendant.

In practice, this means that where a claimant decides to discontinue a claim, they will normally be responsible for paying the costs which a defendant has incurred in responding to the proceedings.

 

What Costs Can Be Recovered?

Where a claimant discontinues proceedings, the defendant will often seek recovery of reasonable litigation costs incurred before the notice was served.

These costs may include:

• Solicitors’ fees
• Counsel’s fees
• Court fees
• Expert evidence costs
• Other litigation-related expenses

The level of recoverable costs will depend on the procedural stage the claim had reached when the claimant decided to file a notice of discontinuance. If a defendant filed a defence, prepared evidence, or instructed the use of any experts, the costs exposure for the claimant can be considerable.

 

Procedural Requirements for Filing a Notice of Discontinuance

The key effect of discontinuance is that the claimant discontinues incurred liability for the defendants costs up to the date the notice starts to take effect.

Where a claimant who discontinues does so after significant procedural steps have taken place, the defendant will usually be entitled to recover their reasonable costs. In most cases, the claimant will therefore be required to pay the defendant following discontinuance.

However the rule is not absolute. The court retains discretion to depart from the usual position if fairness requires it. If the court orders otherwise, the default costs consequences may be adjusted.

 

Tactical Discontinuance in Litigation

In some cases, discontinuance may occur after the defendant has made procedural progress that places the claimant under pressure.

For example, the claimant may choose to discontinue a claim after the defendant has issued a strong defence or made an application to strike out the claim. Courts are alert to the possibility that discontinuance may sometimes be used to avoid the consequences of an adverse ruling.

Where this occurs, the court may examine the surrounding circumstances and consider whether the claimant’s conduct justifies a different order as to costs.

 

Case Example: Edwards v Bristol City Council (2017)

The issue of tactical discontinuance was considered in Edward v Bristol City Council (2017).

In this case, the defendant applied to strike out the claim. Shortly before the application was determined, the claimant sought to discontinue proceedings.

The defendant argued that the claimant has attempted to discontinue the case simply to avoid the consequences of the strike-out application. The court ultimately set aside the notice of discontinuance and proceeded with the strike-out. This allowed the defendant to obtain a more favourable costs outcome than would normally arise from discontinuance alone.

The case demonstrated that the courts may intervene where discontinuance appears to have been used strategically rather than for legitimate reasons.

 

Additional Consideration in Discontinuance Cases

Discontinuance can arise in a range of procedural contexts.

For example, the claim may be discontinued in circumstances where the claim arises from multiple related issues or where the dispute arises out of facts that could potentially support future litigation. Similarly, different procedural considerations may apply depending on how the claim was originally brought. For instance, where the proceedings were issued as a Part 8 claim, the procedural framework may influence how discontinuance and costs are handled.

In each case, the court retains discretion and will consider the overall fairness of the situation before determining the appropriate costs outcome.

 

FAQs

What happens to costs when a claimant discontinues a claim?

When a claimant discontinues proceedings, they will usually be responsible for the defendant’s costs incurred up to the date the notice of discontinuance was served.

Can a claimant discontinue a claim without court permission?

In many cases, yes. However, permission of the court may be required in certain situations, including where the claimant has already received an interim payment.

Does a claimant have to pay the defendant’s costs after discontinuance?

Generally, yes. The role provides that a claimant who discontinues is liable for the defendant’s costs unless the court orders otherwise.

Can a claim be discontinued at that stage after the defendant files a defence?

Yes. A claimant may discontinue at that stage, but if not, the claimant will usually remain responsible for the costs incurred in responding to the claim.

Does discontinuance apply to all types of claims?

Discontinuance may occur in different procedural contexts, including claims issued under the standard procedure or a Part 8 claim, although the procedural implications may vary.

 

How Greener Costs Can Assist?
The costs consequences of discontinuance can be significant, particularly where litigation has progressed and the defendant has already incurred substantial legal costs.

At Greener Costs, our experienced team of Costs Draftsmen and Costs Lawyers regularly assist practitioners with matters involving notice of discontinuance costs, including advising on recoverability, preparing bills of costs, and supporting negotiations following discontinuance.

We work with clients across England and Wales to ensure that the financial implications of litigation decisions are properly understood and effectively managed.

Greener Costs is also the UK’s first net positive legal costs company. Our operations are fully paperless, and we plant 25 trees for every instruction, helping firms offset their carbon footprint while receiving expert costs support.

If you would like to discuss notice of discontinuance costs or require assistance with a costs matter, please contact our team on 01204 263047, email info@greenercosts.co.uk, or complete the enquiry form on our website.