- Examines six key principles provided by the Court of Appeal in Brookes v HSBC plc on the disapplication of CPR 38.6, in relation to what will and will not be considered.
There are many different reasons for discontinuance of a claim. Generally speaking, regardless of the reason, the defendant is entitled to recover its costs up to the date of discontinuation. This fundamental entitlement is provided for in Civil Procedure Rule (CPR) 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.’
This is consistent with CPR 44.2(2), with the general rule being that the unsuccessful party will be ordered to pay the costs of the successful party. Common sense certainly dictates that the defendant should not have to bear the burden of costs
