Скачать или смотреть CPR 38 | Discontinuance | Default Rule Disapplied

In Benjamin v Benjamin & Anor [2024] EWHC 215 (Ch) it was held that parties who unreasonably fail to provide requested pre-action documentation can face adverse costs orders if proceedings are issued, even if later discontinued. The judgment confirms that historic incapacity which impacted ability to engage with requests will not prevent such orders without evidence it existed at that time. Here, the defendants were ordered to pay the majority of the claimant’s costs despite arguing their incapacity meant they could not respond pre-action.

Key Points
-The default rule is that a claimant who discontinues a claim is liable for the defendant’s costs which the defendant incurred on or before the date of notice of discontinuance being served: CPR 38.6(1).
-To depart from the default rule, the claimant must show a change of circumstances not contributed to by the claimant, brought about by unreasonable conduct of the defendant: Nelson’s Yard Management Co v Eziefula
-A failure by the defendant to respond appropriately to pre-action correspondence from the claimant can amount to unreasonable conduct, justifying departure from the default rule: Nelson’s Yard
-Discontinuation of a claim does not necessarily equate to the claim being an admission that the proceedings should never have been commenced: Ashany v Eco-Bat Technologies Ltd.
-There is a high bar set to displace the default rule, but this can be met if there has been unreasonable behaviour by the defendant and a need to view the matter in context rather than apply a blanket rule: Nelson’s Yard.