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a notice of discontinuance from claimant - can i make a Wasted Costs Order?

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Just wondering


Regarding a company starting a claim then serving a notice of discontinuance, is it possible to start a claim for a wasted costs order if the claim had already been allocated to the small claims track?


From what I can see, CPR 38.6(3) says not, but I haven't seen any threads on here mention this?

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thanks, but can't see anything in those that related to claims allocated to the small claims track.


The part i'm looking at is


PART 38 - DISCONTINUANCE - Ministry of Justice


Liability for costs 38.6 (1) Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.

(2) If proceedings are only partly discontinued –

(a) the claimant is liable under paragraph (1) for costs relating only to the part of the proceedings which he is discontinuing; and

(b) unless the court orders otherwise, the costs which the claimant is liable to pay must not be assessed until the conclusion of the rest of the proceedings.

(3) This rule does not apply to claims allocated to the small claims track.


(Rule 44.12 provides for the basis of assessment where the right to costs arises on discontinuance and contains provisions about when a costs order is deemed to have been made and applying for an order under section 194(3) of the Legal Services Act 2007)

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