Navigating the Maze of Discontinuing a Claim: Insights for Litigants in Person

What discontinuance means

Discontinuance is the formal procedure by which a claimant brings all or part of a civil claim to an end. It may be used because the parties have settled, because the claimant has reassessed the evidence, because the claim has become commercially disproportionate, because a procedural mistake has changed the strategy, or because only part of the claim is still worth pursuing.

The important point is that discontinuance is a court procedure. It is not the same as ignoring the claim, failing to attend a hearing, or sending the defendant an informal email saying that the claim is no longer being pursued. CPR Part 38 sets out the route. Once a valid notice of discontinuance is served, the claim is brought to an end against the relevant defendant, subject to any costs questions and any application by the defendant to set the notice aside.

For litigants in person, the danger is that the word discontinuance can sound harmless. In practice, it may decide who pays costs, whether the remaining claim is stayed until costs are paid, and whether a later claim based on the same facts needs permission. The form is short. The consequences may not be.

The right to discontinue

CPR 38.2 gives a claimant a broad right to discontinue all or part of a claim against one or more defendants. That flexibility matters. A claimant may decide to discontinue against one defendant but continue against another, or to abandon part of the case while preserving the part that still has evidential or financial value.

However, the right is not unlimited. The rules contain specific situations where court permission, written consent or another party's consent may be required. A claimant should therefore avoid treating discontinuance as an automatic escape route. The first question is always: am I entitled to discontinue by notice alone, or do I need permission or consent first?

It is also necessary to distinguish discontinuing a claim from amending a statement of case. CPR 38.1 explains that where a claimant has claimed more than one remedy and later abandons one remedy while continuing with the others, that is not treated as discontinuance for Part 38 purposes. The Part 17 amendment route may instead be relevant. That distinction can matter because the form, timing, permission position and costs consequences may be different.

The procedure and Form N279

The procedure is formal. CPR 38.3 requires the claimant to file a notice of discontinuance and serve a copy on every other party to the proceedings. The notice must state that it has been served on every other party. Where consent is needed, a copy of the necessary consent must be attached to the notice.

Where there is more than one defendant, the notice must specify against which defendants the claim is discontinued. That point is easy to miss. A notice that is vague about parties, claims or parts of claims can create avoidable disputes about what has actually ended.

CPR 38.3 says the notice must be in Form N279 unless the court permits otherwise. GOV.UK describes Form N279 as the form used to tell the court that a party wants to discontinue all or part of a claim or counterclaim, and says the completed form should be sent to the court and all other parties in the case.

When permission or consent is needed

CPR 38.2 identifies important exceptions to the ordinary right to discontinue. Court permission is needed if the claimant wishes to discontinue all or part of a claim where the court has granted an interim injunction or where any party has given an undertaking to the court. That is because discontinuance may affect obligations already imposed or accepted in the court process.

There are further controls where an interim payment has been made. If the claimant has received an interim payment in relation to the claim, whether voluntarily or under Part 25, the claimant may discontinue only if the defendant who made the interim payment consents in writing or the court gives permission.

Multiple claimant cases also require care. Where there is more than one claimant, a claimant may not discontinue unless every other claimant consents in writing or the court gives permission. A litigant in person should not assume that one claimant can simply withdraw without affecting the procedural position of others.

Costs consequences

Costs are the main practical reason to pause before discontinuing. CPR 38.6 provides that, unless the court orders otherwise, a claimant who discontinues is liable for the costs incurred by the defendant against whom the claimant discontinues on or before the date when the notice was served.

If only part of the proceedings is discontinued, the claimant is liable only for costs relating to that discontinued part. Unless the court orders otherwise, those costs are not assessed until the rest of the proceedings have concluded. CPR 38.6 also states that this rule does not apply to claims allocated to the small claims track.

That does not mean costs can be ignored in small claims. It means the specific Part 38.6 costs rule does not apply. Small-claims costs are controlled by their own regime, and other costs or sanctions may still arise in limited circumstances. Track, allocation, conduct, settlement terms and any existing orders all matter.

Partly discontinued proceedings carry another warning. CPR 38.8 allows the court to stay the remainder of the proceedings where the claimant has failed to pay costs due under CPR 38.6 within the relevant period after agreement or court order. That can turn a tactical discontinuance into a practical blockage if the costs position has not been planned.

Future claims and CPR 38.7

Discontinuance may also affect the ability to bring another claim later. CPR 38.7 requires court permission where a claimant who has discontinued a claim wishes to make another claim against the same defendant, the earlier claim was discontinued after the defendant filed a defence or, in a Part 8 claim, an acknowledgment of service or written evidence, and the new claim arises out of the same or substantially the same facts.

This is an anti-abuse control. It prevents a claimant from repeatedly issuing and abandoning claims on substantially the same factual basis after the defendant has been required to engage with the case. It does not mean a later claim is always impossible. It means permission may be needed and must be addressed properly.

For litigants in person, this is a critical trap. A claimant may think they can discontinue, gather better evidence and issue again. Depending on timing and facts, the next claim may require permission. Limitation may also continue to matter. Discontinuance is not a safe way to pause litigation unless the future route has been checked.

A practical decision map

Before discontinuing, a claimant should prepare a short written decision note. It does not need to be elaborate. It should identify the claim or part of the claim to be discontinued, the reason for discontinuance, the costs position, whether any permission or consent is required, and the likely effect on any future claim.

Settlement also needs precise handling. If discontinuance follows settlement, the parties should be clear whether the settlement deals with costs, confidentiality, enforcement, future claims and the timing of the notice. Serving a notice of discontinuance before the settlement terms are clear may weaken the claimant's position.

Where the claim is weak, discontinuance may still be sensible. A controlled exit can prevent further costs, narrow the dispute and protect resources. But the decision should be evidence-led. The claimant should know what they are ending, what they are preserving, what they may owe, and whether they will need permission if the dispute returns.