CPR 38.6: Discontinuance And Costs – The Legal Principles


This “long-running and ill-tempered dispute” between directors and shareholders of a residents association ended in September 2019 when the claimant filed a Notice of Discontinuance.

Master Clark was asked to determine whether the court should exercise its power under CPR 38.6 to disapply the default rule that the claimant should pay the costs of the claim.

He concluded that it should…

“In my judgment the defendants have behaved sufficiently unreasonably to justify departing from the general rule that the discontinuing claimant pays the costs of the claim.”

However, he continued…

“…my criticisms of the defendants do not, in my judgment, justify an order that the defendants pay the claimant’s costs… Taking all the above circumstances into account therefore, I consider that the appropriate order is no order as to costs.”

His judgment provides a useful look at the principles governing costs following discontinuance.