FREE CHAPTER from ‘A Practical Guide to Adding or Amending Parties or Causes of Action to a Claim in Civil Proceedings’ by Ryan Hocking



Just as a litigant may wish to expand the scope of their claim or defence, it is sometimes necessary to refine or contract the ambit of a statement of case, or even to abandon a claim entirely. This may come about because the party in question belatedly comes to accept that part of their case has limited prospects of success, following a strategic reappraisal of the litigation, or simply due to a change in circumstances.

It is also possible for the court to order that all or part of a claim will not proceed to trial. The most common way in which this occurs is for the court to strike out all or part of a claim, or grant summary judgment in relation to all or part of a claim. These procedural mechanisms are outside the scope of this book, but see further the sub-section ‘Removal by amendment’, below.


Discontinuance is the procedure by which a claimant may abandon their claim, and is governed by Part 38 of the CPR. It should be noted that, in this context, ‘claim’ is likely to be interpreted as synonymous with ‘cause of action’ (XX v YY [2021] EWHC 3014 (Ch)). As a consequence, a claimant does not discontinue a claim where they merely opt no longer to seek a remedy originally pleaded. Further, it is not necessary for a claimant to abandon the entirety of their claim; Part 38 will apply wherever a claimant abandons one or more causes of action.

A claimant may discontinue all or part of a claim (against all or any of the defendants to that claim) at any time, without the permission of the court, except in the following circumstances, where the permission of the court is required:

  • If the court has granted an interim injunction in relation to the claim;

  • If any party has given an undertaking to the court in relation to the claim;

  • The claimant has received an interim payment, and the defendant who made the interim payment has not consented in writing to the claim being discontinued; or

  • There is more than one claimant, and one or more of the other claimants have not consented in writing to the claim being discontinued.

Whilst it is relatively uncommon for the court to refuse to grant permission to a claimant to discontinue a claim, the interests of the other parties to the litigation may produce this result. For example, permission to discontinue might be refused in circumstances where the claimant essentially admits that the claim lacks merit, and that if it were pursued to trial then the correct outcome would be for it to be dismissed. In Vale S.A. v Steinmetz [2022] EWHC 343 (Comm) the court refused to grant permission to discontinue in those circumstances, and instead dismissed the claim. In that case, there was a benefit to the defendants in there being a court decision on record dismissing the claims (due, in large part, to the cross-border context of the litigation, and the way in which discontinuance and dismissal might be perceived in other jurisdictions).

The procedure for discontinuance is straightforward: the claimant must simply serve a notice of discontinuance, in form N279, on all the other parties to the proceedings, and then file a notice of discontinuance confirming that it has been duly served on every other party, per CPR r38.3. A notice of discontinuance must also state which defendant(s) the claim is discontinued against, and attach a copy of the written consent of any other relevant party, where applicable. The claim is then discontinued, and the proceedings brought to an end, as against any given defendant on the date on which the notice of discontinuance is served on them, per CPR r38.5.

Part 38 of the CPR does not set out any specific procedural requirements for discontinuing a claim where the permission of the court is required to do so. Strictly speaking, once the claimant’s application for permission has been granted they will still need to file and serve a notice of discontinuance in compliance with CPR r38.3. That said, the court does have a discretion to dispense with this procedural requirement, and may well make such an order on an application for permission to discontinue in order to avoid a situation in which permission to discontinue is granted but notice is not filed or served, resulting in the proceedings technically remaining on foot indefinitely (see Pycom Ltd v Campora [2022] 7 WLUK 114).

Provided that they do so within 28 days of a notice of discontinuance being served upon them, a defendant may apply to have a claimant’s notice of discontinuance set aside, per CPR r38.4. Any such application falls to be determined in light of all the circumstances of the case, and particularly having regard to the overriding objective. For example, the court may well set aside a notice of discontinuance where it constitutes an abuse of process, albeit that it is not necessary for the defendant to meet this threshold in order to succeed in their application (see Ernst and Young v Butte Mining Plc [1996] 1 WLR 1605). In this regard, it ought to be noted that there is nothing (necessarily) abusive in discontinuing a claim in order to avoid or restrict the claimant’s liability for the defendant’s costs of a claim (see Mabb v English [2017] EWHC 3616 (QB)).

It should be noted that there are usually adverse costs consequences for a claimant who discontinues a claim (see further the sub-section ‘Costs on discontinuance’ in the chapter ‘Costs’, below).

Removal by amendment

As set out above, where a claimant amends their statement of case so as no longer to pursue a particular remedy, that will not constitute discontinuance, provided that the underlying cause of action is not abandoned. However, where a claimant amends so as to abandon a cause of action, this is likely to be deemed to constitute discontinuance, even where no notice of discontinuance is filed or served (per Galazi v Christoforou [2019] EWHC 670 (Ch)), and the same costs consequences are likely to follow (as in RG Carter Projects Ltd v CUA Property Ltd [2020] EWHC 3417 (TCC); as to the costs consequences of discontinuance more generally, see further the sub-section ‘Costs on discontinuance’ in the chapter ‘Costs’, below).

This approach may well follow where a claimant does not technically abandon a cause of action, per se, but amends so as to remove certain factual allegations, and pursues that claim on only some of the grounds set out in the original statements of case. It also ought to be noted that when a party amends so as to withdraw or substantially alter any factual allegations, the court is likely to expect a statement from that party explaining that they no longer believe the original allegations to be true and/or explaining the basis for their newly changed belief about the matters previously pleaded but now deleted (see Sayn-Wittgenstein-Sayn v HM Juan Carlos Alfonso Victor Maria de Borbon y Borbon [2022] EWCA Civ 1595 at [27]).

Finally, the court may order any person to cease to be a party if it is not desirable for that person to be a party to the proceedings, per CPR r19.2(3). The court may make such an order on the application of any party, or of its own volition. Circumstances in which such an order has been made include:

  • In Verlox International Ltd and Anor v Antoshin and Ors [2022] EWHC 2667 (Comm), the claim was assigned to a claimant solely in order to establish jurisdiction (for the purposes of obtaining the permission of the court to serve proceedings out of the jurisdiction), before then being re-assigned to the original assignor. In these circumstances, it was not desirable for the original assignor to continue to be a party to proceedings, as they were unable themselves to establish jurisdiction for the court to determine the claim.

  • In BMF Assets No 1 Ltd v Sanne Group Plc [2022] EWHC 140 (Ch), proceedings were commenced using documents which had purportedly been signed on behalf of some of the claimants by persons who were not in fact authorised to do so. Given that claims were commenced in the names of those claimants without their authority, it was not desirable for them to remain parties to the litigation.

  • In Mitchell v Royal Bank of Scotland Plc [2017] EWHC 1025 (Ch), no relief was sought against one of the defendants, and it was not desirable for them to remain a party to the litigation.

  • In Armirtharaja v White, 8 April 2020, unreported (ChD), one of the claimants had died shortly before the claim was issued (which had apparently escaped the attention of the legal representatives instructed by the claimants), and it was not desirable for that person to continue to be named as a party to the litigation.

Claims following discontinuance

Where a defendant has yet to engage with a claim, there are likely to be limited consequences to a claimant discontinuing that claim. However, where a defendant has filed a defence, the claimant will then need the permission of the court to make a new claim against the same defendant which arises out of the same, or substantially the same, facts as the discontinued claim, per CPR r38.7.

Perhaps unsurprisingly, the court’s starting point on any such application by a claimant will be informed by the court’s “natural disinclination to permit a party to re-introduce” a discontinued claim (Hague Plant Ltd v Hague [2014] EWCA Civ 1609), and the circumstances of the application will need to be fully explained by the claimant in order to overcome this reluctance to grant permission for the new claim to be made.

The principles applicable to such an application were set out more fully in the case of Wickham v Riley [2020] EWHC 3711 (Fam) at [42]:

  • Applications under CPR r38.7 are to be considered in light of the overriding objective to deal with cases justly, and in light of all the circumstances.

  • The personal circumstances of the claimant may be relevant.

  • The court ought also to consider any prejudice that would be caused to the defendant(s) if permission were granted for the new claim to be made.

  • Where the application for permission is made after the expiry of a relevant limitation period, the application ought ordinarily to be refused, even if the claim was issued prior to the expiry of that limitation period. There is scope for this principle to apply less strictly in the context of a limitation period which is purely discretionary (particularly if the court has already given permission for the claim to be issued notwithstanding the expiry of that discretionary limitation period).

  • There is a public interest in finality in litigation which is relevant to the question of whether permission should be granted.

  • The onus is on the claimant to explain the circumstances in which the original claim was abandoned, and the reasons why permission is now sought to make a new claim. Examples of circumstances which might justify making a new claim where a previous claim has been discontinued include where the claimant was misled or tricked by the defendant, where new evidence has come to light since the first claim was discontinued, or where there has been a retrospective change in the law.

  • The merits of the underlying claim will be relevant. If the claim has no real prospect of success, or is an abuse of process, that may well be determinative of the application for permission.

Even where the provisions of CPR r38.7 are technically not triggered for whatever reason, it is always open to the court to strike out the new claim as an abuse of process, applying the Henderson v Henderson principle (King v Kings Solutions Group Ltd [2020] EWHC 2861 (Ch)).

Where no action is required

There are limited circumstances in which a claim will either be dismissed automatically, or will simply stand in abeyance, and no action need be taken by any party to the proceedings. These circumstances include:

  • Moratoriums arising on the insolvency of one of the parties automatically imposing a stay on the proceedings.

  • Where one of the parties is a company and it is dissolved or struck-off post-issue, the court may either dismiss the claim, or can impose a stay pending an application to restore the company to the register (as s.1032 of the Companies Act 2006 empowers the court retrospectively to validate a claim which was commenced post-dissolution or post-strike-off).

  • If a party dies and the court makes an order pursuant to CPR r19.8(1)(a), the claim will simply continue in the absence of any person representing the estate of the deceased.