The Importance of Discontinuance

legal updates

What was evident in our member’s claim, was that the Claimant wanted a second bite of the cherry after withdrawing their previous claim.

Read our disclaimer keyboard_arrow_down

This website content is intended as a general guide to law as it applies to the motor trade. Lawgistics has taken every effort to ensure that the contents are as accurate and up to date as at the date of first publication.

The laws and opinions expressed within this website may be varied as the law develops. As such we cannot accept liability for or the consequence of, any change of law, or official guidelines since publication or any misuse of the information provided.

The opinions in this website are based upon the experience of the authors and it must be recognised that only the courts and recognised tribunals can interpret the law with authority.

Examples given within the website are based on the experience of the authors and centre upon issues that commonly give rise to disputes. Each situation in practice will be different and may comprise several points commented upon.

If you have any doubt about the correct legal position you should seek further legal advice from Lawgistics or a suitably qualified solicitor. We cannot accept liability for your failure to take professional advice where it should reasonably be sought by a prudent person.

All characters are fictitious and should not be taken as referring to any person living or dead.

Use of this website shall be considered acceptance of the terms of the disclaimer presented above.

We recently represented a member in a case that involved a very important element of the Civil Procedure Rules. Our member, who had faced a previous claim that had been discontinued, faced a fresh claim on the same facts as the first. A little underused rule within the Civil Procedure Rules was used with great effect.

Civil Procedure Rule 38.7 provides that:
(1) A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if –
a) they discontinued the claim after the defendant filed a defence or, in a Part 8 claim, filed an acknowledgment of service or written evidence, and
b) the other claim arises out of the facts which are the same or substantially the same as those relating to the discontinued claim.

In our member’s case, the Claimant had discontinued their first claim by serving a notice of discontinuance, which places an end to the claim. Within a relatively short period, the Claimant issued a new claim placing reliance on the same facts as the first and providing lengthy particulars of the claim. It would appear the Claimant had again taken advice from Stormcatcher, those who follow our legal updates will be aware that this company/person appears to be conducting litigation without authority, which is exceptionally risky for anyone who takes advice from them. Despite the rather lengthy particulars of the claim, the Claimant and his advisor failed to properly understand the civil procedure rules that govern all legal proceedings in the civil courts.

Hidden away in chapter 38 is this rule mentioned above, the Claimant failed to seek permission from the court, whether that is by way of an application before proceedings are commenced or whether a Claimant pleads permission within the claim as suggested in 38.7(2) below:
(2) if the Claimant considers that permission is needed, the application for permission shall be included in the claim form and a claim will proceed only if permission is granted.

As the Claimant failed to seek permission and/or plead permission subject to the court granting the same, it was evident that the claim was simply a nullity. There are some interesting court decisions in this area that centre around a second claim being manifestly unfair, an abuse of process to bring a second claim. It would appear from those cases that the burden of proof lies with the Defendant to argue that the second claim would be “manifestly unfair” and whether the court should shut out a Claimant from pursuing a second claim unless it is an abuse of process. The courts should consider a “broad merits test” approach to the claims.

What was evident in our member’s claim, was that the Claimant wanted a second bite of the cherry after withdrawing their previous claim, presumably on the advice of their unregulated advisor. We stood firm on our position for our member, and the Claimant eventually discontinued the second claim after having failed to get the permission of the court.

Rules are rules, and even more so when dealing with court cases. You must always make sure your legal advisors are authorised and experienced not just to conduct litigation, but to conduct it well. Within the motor trade, there is no company more experienced than Lawgistics to look after the motor trade community’s legal needs.

Impression Communications LtdPutting the motive in automotive

Impression works with businesses across the automotive aftermarket supply chain such as parts suppliers, warehouse distributors, motor factors and independent garages. Covering all aspects of automotive aftermarket marketing, including social media, event management, customer newsletters and PR, Impression is able to quickly establish itself within a client’s business and work towards their objectives.

Adrian BrazierLegal AdvisorRead More by this author

Related Legal Updates

Time is Money – Pay Attention!

Whether the court has made a mistake that impacts your case, or if the postman has lost your court paperwork, as soon as an issue arises, action is needed.

SHOCK & HORROR! A finance company seeks to influence an expert opinion!

Any finance house thinking of or seeking to emulate such unconscionable conduct, risks not only judicial ire and sanction but also being named and shamed.

Petty Grievances

Dealers can rest assured that the courts still take a very dim view of petty grievances blown out of proportion.

Default Judgments & Set Aside Applications – When is late too late?

This article explores the complexities and urgent timing needed to set aside default judgments in County Court, highlighting the importance of prompt legal action.

Why a good defence is essential

Delays are never helpful, and the sooner we get the claim form, the sooner we can get to work on your defence.

It pays to take professional advice on a court claim

Experience remarkable savings and expert legal support for your motor trade business with our competitively priced services.

Proceed with caution: legal pitfalls in caravan and motorhome deals

Curious if one of these vehicles is in your possession? Verify your stock and arm yourself with essential legal knowledge to navigate any potential challenges.

Get in touch

Complete the form to get in touch or via our details below:

01480 455500

Vinpenta House
High Causeway

By submitting this quote you agree to our Terms & Conditions and Privacy & Cookies Policy.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.