N279 Notice of Discontinuance

Form N279 is used by a claimant to formally discontinue (withdraw) all or part of a court claim under CPR Part 38. Understanding the rules on discontinuance is essential, as it carries important cost consequences that could leave you liable for the defendant's legal costs.

What is a Notice of Discontinuance?

A notice of discontinuance is a formal document used by a claimant to stop (discontinue) their court claim, either in whole or in part. The rules governing discontinuance are set out in CPR Part 38 (Civil Procedure Rules).

When you discontinue a claim, you are telling the court and the other parties that you no longer wish to pursue the proceedings. This is different from simply not doing anything with your claim (which could lead to the claim being struck out for want of prosecution).

It is important to understand the distinction between discontinuance, withdrawal, and settlement:

Discontinuance

The formal process under CPR Part 38 where the claimant files Form N279 to stop the claim. The claimant can usually bring a fresh claim on the same matter later.

Settlement

The parties reach an agreement to resolve the dispute. This is usually recorded in a consent order or Tomlin order and prevents further claims on the same matter.

Withdrawal

An informal term sometimes used interchangeably with discontinuance. In practice, the correct legal mechanism for stopping a claim is discontinuance under CPR Part 38.

Key Point

A claimant has a right to discontinue their claim at any time. However, in some circumstances the court's permission is required first, and discontinuance almost always carries cost consequences.

When Would You Discontinue a Claim?

There are many reasons why a claimant might decide to discontinue their claim. Here are the most common scenarios:

Settlement Reached

You have agreed terms with the defendant outside of court and no longer need to pursue the claim.

Claim Too Weak

After further investigation or disclosure, you realise your claim is unlikely to succeed at trial.

Costs Too High

The costs of continuing the claim outweigh what you are likely to recover, even if you win.

Defendant Has Paid

The defendant has paid the amount claimed (or an acceptable amount) before judgment.

Changed Circumstances

Circumstances have changed making the claim no longer relevant or worth pursuing.

Strategic Reasons

You wish to bring fresh proceedings in a different court or on different terms.

Partial Discontinuance

You do not have to discontinue your entire claim. Under CPR Part 38, you can discontinue against just one defendant while continuing against others, or you can discontinue part of your claim (for example, dropping a particular head of damage) while pursuing the rest. This is known as partial discontinuance.

How to Complete Form N279

Form N279 is relatively straightforward. Here is a section-by-section guide to completing it correctly:

Case Details

Enter the claim number, court name, and full names of all parties (claimant and defendant).

Parties Affected

Specify whether you are discontinuing against all defendants or only certain defendants. If partial, name each defendant affected.

Parts of Claim

State whether you are discontinuing the whole claim or only part of it. If partial, describe precisely which parts of the claim you are discontinuing.

Service Details

Confirm that the notice has been served on every other party to the proceedings, and state the date and method of service.

Statement of Truth

Sign and date the statement of truth. If you are a company or organisation, the person signing must state their position or office held.

Important

You must serve a copy of the notice on every other party to the proceedings, and then file a copy at court. The notice does not take effect until it has been served on the defendant(s).

Rules on Discontinuance (CPR Part 38)

The Civil Procedure Rules set out when you can discontinue without the court's permission and when you must apply to the court first.

No Permission Needed (CPR 38.2)

You can discontinue without the court's permission if:

No trial date has been set
The court has not granted an interim injunction in the proceedings
No party has given an undertaking to the court
You are discontinuing with the written consent of all other parties

Permission Required (CPR 38.3)

You must get the court's permission to discontinue if:

A trial date has been set by the court
The court has granted an interim injunction
Any party has given an undertaking to the court
The claim is one to which CPR 38.2(2)(c) applies (certain types of claim involving children or protected parties)
The court has ordered otherwise

Applying for Permission

If you need the court's permission to discontinue, you must apply using Form N244 (Application Notice). The court will consider whether allowing discontinuance is appropriate in all the circumstances, including any prejudice to the defendant.

Cost Consequences of Discontinuance

Critical: Default Cost Liability

Under CPR 38.6, unless the court orders otherwise, a claimant who discontinues is liable for the costs of the defendant against whom the claim is discontinued. Those costs are deemed to have been incurred on the date the notice of discontinuance is served.

This means you could end up paying the defendant's solicitor's fees, court fees, and other expenses incurred in defending the claim.

How Costs Are Assessed

If the parties cannot agree on the amount of costs, the defendant can apply for a detailed assessment. The costs will be assessed on the standard basis unless the court orders otherwise. This means:

Standard basis assessment
The court allows costs that are proportionate to the matters in issue. Any doubt about whether costs were reasonably incurred or reasonable in amount is resolved in favour of the paying party (i.e. you).
28-day deadline
The defendant must apply for costs within 28 days of being served with the notice of discontinuance, unless the court extends the time.

Exceptions to the Default Cost Rule

The court may order a different costs outcome in certain circumstances:

The parties have agreed on costs as part of a settlement
The court orders that no costs are payable (e.g. if the defendant's conduct made discontinuance necessary)
The court makes a different order on the application of either party
In small claims track cases, the fixed costs regime may apply instead

Tip: Negotiate Costs Before Discontinuing

Before serving your notice of discontinuance, try to negotiate with the defendant on the question of costs. You may be able to agree that each party bears their own costs, or agree a fixed sum. This avoids the uncertainty and expense of a detailed assessment.

Effect of Discontinuance

Under CPR 38.5, once a notice of discontinuance is served, the proceedings are brought to an end as against the relevant defendant on the date the notice is served.

Proceedings End on Service

The claim is treated as having been brought to an end on the date the notice of discontinuance was served on the defendant, not the date it was filed at court.

Right to Bring Fresh Proceedings

Under CPR 38.7, a claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if the claimant has discontinued that claim after the defendant has filed a defence, unless the court gives permission to bring a fresh claim. If no defence has been filed, you can generally bring a fresh claim without permission.

Limitation Periods Still Apply

Discontinuance does not stop the limitation period from running. If you discontinue and later decide to bring a fresh claim, you must still bring it within the relevant limitation period. For most contract and tort claims this is 6 years from the date the cause of action arose.

Interim Payments Must Be Repaid

If the claimant has received any interim payments, they must be repaid upon discontinuance unless the parties agree otherwise or the court orders otherwise.

Partial Discontinuance

CPR Part 38 allows you to discontinue part of a claim while continuing with the rest. There are two main types of partial discontinuance:

Against One Defendant

If your claim is against multiple defendants, you can discontinue against one or more of them while continuing your claim against the others.

Example: You sued both a builder and an architect. After disclosure, you realise the architect was not at fault, so you discontinue against the architect but continue against the builder.

Part of the Claim

You can discontinue a specific part or head of your claim while continuing with the remainder.

Example: You claimed for breach of contract and negligent misrepresentation. You decide to drop the misrepresentation claim but continue with the breach of contract claim.

Cost Consequences of Partial Discontinuance

The same default cost rule applies to partial discontinuance. You will be liable for the defendant's costs relating to the discontinued part of the claim, unless the court orders otherwise.

Setting Aside a Notice of Discontinuance

Under CPR 38.4, the court has the power to set aside a notice of discontinuance if it is satisfied that the discontinuance amounts to an abuse of process. A defendant (or any other party) can apply to have the notice set aside.

When Might Discontinuance Be Set Aside?

Abuse of process
The claimant is using discontinuance to gain a tactical advantage, such as avoiding an unfavourable court order or restarting proceedings to avoid costs consequences.
Avoiding a counterclaim
The claimant discontinues to try to prevent the defendant from pursuing a counterclaim. Note that discontinuance does not automatically end a counterclaim - the defendant can continue with their counterclaim.
Prejudice to the defendant
The discontinuance would cause significant prejudice to the defendant that cannot be adequately compensated by costs.

An application to set aside a notice of discontinuance should be made promptly. The defendant should use Form N244 (Application Notice) and explain why the discontinuance should be set aside. There is a court fee for making this application.

Practical Tips Before Discontinuing

Consider Settlement First

Before discontinuing, explore whether you can reach a settlement with the defendant. A settlement (particularly recorded in a Tomlin order) gives you more control over costs and prevents the defendant from pursuing you for their costs under the default rule.

Negotiate Costs in Advance

Contact the defendant (or their solicitor) before serving the notice and try to agree on costs. You might agree that each side bears their own costs, or negotiate a fixed sum. This avoids the expense of a detailed assessment.

Check If Permission Is Needed

Before filing your notice, check whether a trial date has been set, whether any interim injunctions are in place, or whether any undertakings have been given. If any of these apply, you will need to apply for the court's permission first using Form N244.

Consider the Timing

The earlier you discontinue, the lower the defendant's costs are likely to be. If you know your claim is weak, it is better to discontinue sooner rather than later to minimise your costs liability.

Think About Future Claims

Remember that discontinuance does not necessarily prevent you from bringing a fresh claim on the same matter (subject to limitation periods and CPR 38.7). However, if you plan to bring a fresh claim, consider whether the court is likely to grant permission and whether the costs consequences make this worthwhile.

Beware of Counterclaims

If the defendant has filed a counterclaim, discontinuing your claim does not end the counterclaim. The defendant can continue to pursue their counterclaim even after you have discontinued your claim against them.