The first instance decision in this case was reported in Weekly Update 17/18. The claimants sought to enforce a NY Convention award in their favour both in the UK and in other jurisdictions. In the proceedings here, the defendant sought to set aside the order granting permission to enforce the award. The court directed that the defendant's claim that the award was obtained by fraud should proceed to trial. In so doing, the court had found that there was prima facie evidence of fraud. The claimants then served a notice of discontinuance and the defendant applied under CPR r38.4 to have the notice of discontinuance set aside.
CPR r.38.4 gives no guidance as to the circumstances when a court will set aside a notice of discontinuance. However, prior caselaw has established that abuse of process is not a necessary or exclusive criterion which has to be satisfied, and the judge in this case re-confirmed that point. He set aside the notice of discontinuance and the Court of Appeal has now allowed the appeal from that decision.
The Court of Appeal agreed with the judge that there was no need to establish abuse of process and that the discretion conferred by CPR r38.4 "is a discretion expressed in general, unqualified terms and there is no ground for limiting it by reference to implied gateways or restrictions". However, it found that the defendant did not have a legitimate interest in continuing the proceedings. The proceedings had been brought in order to enforce the award against the defendant's assets in England – there was no other connection with this jurisdiction. That purpose had now ceased and so "a very strong case" (and possibly exceptional circumstances) are needed to show a continuing interest. No such interest could be demonstrated here (although the Court of Appeal suggested that if it could be shown that a finding here would create an issue estoppel in other countries where enforcement proceedings were pending, that might have satisfied the continuing interest test).