Whether a notice of discontinuance should be set aside


The claimant unilaterally served a notice of discontinuance and the defendant applied to have the  notice set aside (pursuant to CPR r38.4).

Under the old Rules of the Supreme Court (“RSC”), which preceded the CPR, there was no express  provision enabling the court to set aside a notice of discontinuance but the House of Lords decided  that it could be set aside if the discontinuance 

was an abuse of process (see Castanho v Brown & Root [1981]). An argument was raised in this case that the power conferred by the CPR went no further than this  test. That was rejected by Henderson J. The CPR “formed an entirely new procedural code” and CPR  r38.4 should be construed in accordance with the overriding objective of dealing with cases justly and  at proportionate cost: “If the  facts disclose an abuse of the court’s process, that will no doubt continue to be a powerful factor  in favour of granting the application; but it would in my view be wrong to treat abuse of process  as either a necessary or an exclusive criterion which has to be satisfied if the application is to  succeed”.

In any event, the judge did find that there had been an abuse of process here (the claimant had  intended to preserve the sovereign immunity which it had waived) and that  he should exercise his discretion to set  aside the notice of discontinuance.

COMMENT: CPR r.38.4 gives no guidance as to the circumstances when a court will set aside a notice  of discontinuance and there have been few reported cases on this point. In Sheltam Rail v Mirambo  Holdings (2008), it was held that a court may set aside a notice of discontinuance  if it concludes  that it is an abuse of the process of the court, but that may not be the only circumstance in which  the court exercises its powers. This case therefore supports that conclusion.