Case Alert - [2018] EWHC 77 (Ch)

Judge decides whether claimant can bring a new claim after discontinuance

CPR r38.7 provides that "A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if (a) he discontinued the claim after the defendant filed a defence...." Matthew HHJ held that the defendant will be the same even if he/she is sued in a different capacity in the proposed second claim.

In this case, the claimant had discontinued its claim and then issued a new one before seeking the permission of the court. Was it a pre-condition under the rules that permission had to be sought in advance in order for the new proceedings to be valid? The judge accepted that a failure to obtain permission was an irregularity which made the claim liable to be struck out. He went on to hold that the second claim should be struck out here because the limitation period had now expired: "the claimant who has previously discontinued a sufficiently similar claim within CPR rule 38.7, and who then issues without permission before the limitation period has expired should not be treated more favourably than the claimant who does not issue first, but seeks permission only after the limitation period has expired. In both cases, permission should normally be refused".