In Dover Harbour Board v ISS and others [2007] EWHC 2015 (TCC), His Honour Judge Thornton QC had to consider an application under CPR 38.6 for discontinuance of a claim against a defendant with no order as to costs. The situation was perhaps unusual in that the claim was a conspiracy claim. It had settled against two other defendants and it had been difficult to bring the claim against them without doing so against this Defendant.

The usual rule on discontinuance is that the claimant pays all the defendant's costs to the date of the Notice of Discontinuance. Applications for the court to exercise discretion to disapply this rule do not often succeed.

The judge allowed the application. He found that there had been a material change in circumstances since proceedings were begun and it was not proportionate for the claim against the Defendant to be pursued. The Claimant had settled with two other defendants and received a substantial settlement payment plus an insurance payment. The judge considered it an important factor that it had not been unreasonable of the Claimant to bring the proceedings against the Defendant.