CPR 38.6 | Default Rule Disapplied On Discontinuance

“In my judgment, the production of the Deed was a change in circumstances which justified discontinuing her claims to a beneficial interest in the Property of her and/or the deceased…. the change in circumstances was brought about by unreasonable behaviour by the defendants. The defendants’ solicitors did not properly engage with pre-action correspondence. Although the available evidence indicates that their clients had the Deed, having been sent the relevant files by Booth & Co, they did not produce a copy of it until 18 months after the claimant’s initial request. Even now, no explanation has been given as to why the Deed was not produced in September 2016, what steps were taken by the first defendant to look for it, what enquiries he made and searches he carried out and when and where the Deed was found.”

FAULKNER V SECRETARY OF STATE FOR BUSINESS, ENERGY AND INDUSTRIAL STRATEGY

QOCS: Setting Off Costs Against Costs

The court exercised its discretion against allowing a defendant to set off ‘costs against costs’ in a case where it unsuccessfully applied to resurrect a discontinued claim with a view to striking it out and thus removing the protection of QOCS by virtue of CPR 44.15.

Discontinuance

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