There can be few cases in which a party opposes a claim against them being discontinued, and yet that is what occupied the Court in Green Gem Ltd v Fischer. The claim concerns a lease renewal notice. However, the Defendant issued a counterclaim in respect of disrepair and personal injury. The Defendant (represented by Marc Glover) wanted to discontinue her personal injury claim, and served notice. The Claimant landlord (represented by Mark Warwick QC), did not accept the notice of discontinuance.
The court was required to determine whether a defendant required permission under CPR 38.2(2)(a)(ii) to discontinue that part of her counterclaim that related to a damages claim for personal injury. The Defendant and the Claimant had given undertakings to the court when neither a defence nor a counterclaim had been served, although the judge had seen them in draft. The counterclaim that was served had within it a claim for damages for personal injuries. None of the undertakings related to that claim.
The Court held that the Defendant did not need permission under CPR r.38.2(2)(a)(ii) to discontinue that part of her counterclaim, as it could not be said that any of the undertakings given to the court related to or were in the context of an existing counterclaim, as she had not yet counterclaimed when they were given. Even if that were wrong and the Defendant had counterclaimed, or if the draft counterclaim should be treated as an existing counterclaim, as a matter of interpretation the Defendant was correct in submitting that the undertakings each party gave in the order did not relate to that part of the counterclaim that the Defendant wished to discontinue. Rule 38.2(2)(a)(ii) imposed an obligation to seek permission only where there was an existing undertaking relating to that part of the claim for which an undertaking had been given; that was the reason for the Rule. The court needed to intervene when one party wanted to discontinue in the relation to a matter where the court had already made a decision or had extracted the equivalent of a decision. However, where a party wanted to disclaim in relation to a matter about which no one had done anything there was no reason for the court to be concerned.
This important procedural decision is reported on Lawtel and Westlaw.