Claiming costs after discontinuance

[Drowning but not sunk...]

Please can someone tell me how long after a claim has been discontinued can you still claim costs? I had a claim discontinued around two months ago am I to late to claim?

 

Many Thanks - if anyone can help.

[Prudence]

Hi Dbns, well we were told by the Judge after Howard Cohen Discontinued with us that the Discontinuance could not be accepted if we want to claim costs as he would have to get the other side back in Court again to answer to our costs. Just in case you're not aware of it.

[Drowning but not sunk...]

Thanks,

 

I am not aware of this case and will do some research. I just wondered if I am out of time or if a judge will just say "no you took to long!"

[AndyOrch]

Im afraid your DJ was ill informed Prudence.

 

It is not uncommon for a claimant to decide to discontinue his claim after he has issued proceedings. If this is done then clearly the costs consequences set out in Civil Procedure Rule 38.6 (1) will apply.

CPR 38.6(1) provides: ‘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.’

The Court of Appeal recently considered a challenge to the above rule in the case of Messih v McMillan Williams & Ors [2010] EWCA Civ 844.

Points to consider

It is clear from Messih that:

 

• The general rule under CPR 38.6 will apply unless a claimant can demonstrate to the court that some other order should be made. This will be no easy task for a claimant;
  
• Although CPR 38.6 allows the court to exercise its discretion, that discretion must be exercised in the light of all the matters relied on as justifying the making of some alternative order for costs, and whether those matters are sufficient to support such an order; and
  
• Claimants should be advised from the outset and throughout the litigation process of costs generally but also, in particular, the risk of having to pay the defendant’s costs if the matter is discontinued at a later stage.
  

Regards

 

Andy