ABSTRACT
The usual price a claimant pays for discontinuing all or part of a claim against the defendant is that he must pay the defendant’s costs of the proceedings incurred up to the date of discontinuance (r 38.6(1)). The defendant will be automatically entitled to costs, unless the court orders otherwise (r 38.6(2)(b)), and when the claimant discontinues, a costs order will be deemed to have been made in the defendant’s favour on the standard basis9 (r 44.12) and will be assessed on a detailed basis (r 44.7). However, a defendant could apply, using Part 23,9a for costs to be on an indemnity basis, for example, where there are allegations of misconduct. Similarly, a claimant could apply for the costs provision not to apply where, for example, an injunction has satisfied the demands of the claimant.
