Claimant Facing Strike Out Application Entitled to Discontinue Claim

Article

13 March, 2018

Mabb v English [2017] EWHC 3616 (QB)

The Court has ruled that it is not an abuse of process for a claimant to file a notice of discontinuance to avoid possibly having to pay the defendant's costs.

The claimant sought damages from the defendant for alleged clinical negligence. The defendant sought to strike out the claim on the basis that the claimant had no reasonable prospects of success. The Judge refused to do so, and the defendant appealed. The appeal was granted, and the Judge noted that it was highly arguable that causation could not be made out. Consequently, the claimant filed a notice of discontinuance and sought to rely on QOCS.

The defendant made an application to set aside the notice of discontinuance and argued that to allow the claimant to discontinue her claim would unfairly deprive the defendant of its entitlement to costs. The defendant maintained that the claimant had brought a flawed claim, had not given a reason for discontinuing it, and that it was in accordance with the overriding objective to set aside the notice.

The High Court found that in accordance with the rules and in the absence of fraud, there was no inherent unfairness in a claimant filing a notice of discontinuance in a personal injury action so as to avoid having to pay the defendant's costs.

Forbes comment

Although this decision clearly favours claimants and allows claimants to avoid cost consequences by filing a notice of discontinuance, May J did not rule out the possibility that a notice of discontinuance could be set aside in circumstances where the behaviour of a claimant or their solicitors could be described as "egregious or cynical".

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