In two cases I have been concerned with, those administering the possession claim online (PCOL) system have allowed claimants to withdraw claims on line...
In two cases I have been concerned with, those administering the possession claim online (PCOL) system have allowed claimants to withdraw claims on line between service and return date and vacate the hearing without any reference to the defendant who had wanted to apply for costs. Surely this is improper and absent a notice of discontinuance there cannot be withdrawal in this way?
The court can certainly vacate the hearing and it is open to the defendant to apply for the claim to be struck out or dismissed and for his costs. However, the better view is that notice of discontinuance does not have to be filed and served for CPR 38.6 (automatic costs on discontinuance) to kick in and that an equivalent action is sufficient. Therefore, the defendant can treat the “withdrawal” as a notice of discontinuance and seek to take advantage of r 38.6, placing the burden on the claimant to argue otherwise.
