Acts and Regulations

Rule-25 - DISCONTINUANCE AND WITHDRAWAL

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Current to 1 January 2024
DISPOSITION WITHOUT TRIAL
RULE 25
DISCONTINUANCE AND WITHDRAWAL
25.01Discontinuance by Plaintiff
A plaintiff may discontinue his action against a defendant, either in whole or in part
(a) at any time before the close of pleadings,
(b) after the close of pleadings, with leave of the court, or
(c) at any time, with the written consent of all parties
(d) filing with the clerk a Notice of Discontinuance (Form 25A), and
(e) serving a copy of the Notice of Discontinuance on all parties who have been served with the Statement of Claim.
25.02Withdrawal by Defendant
(1)A defendant may withdraw all or part of the Statement of Defence with respect to any plaintiff at any time by filing and serving on all parties a Notice of Withdrawal (Form 25B), but,
(a) where the defendant has made a cross-claim or a third party claim, leave of the court must be obtained, and
(b) where the defendant seeks to withdraw an admission in the Statement of Defence, leave of the court or consent of the plaintiff must be obtained.
(2)Where a defendant withdraws the whole of the Statement of Defence, the defendant shall be deemed to have been noted in default.
92-107
25.03Costs on Discontinuance or Withdrawal
A party wholly discontinuing an action or wholly withdrawing his Statement of Defence against another party shall pay the costs of the other party to date, including the costs of any cross-claim or third party claim, unless the court orders or the parties agree otherwise.
25.04Effect of Discontinuance on Counterclaim
Where an action is discontinued against a defendant who has counterclaimed, he may, within 30 days thereafter, file and serve a Notice of Election (Form 25C) to proceed with his counterclaim. In default of such election, the counterclaim shall be deemed to be discontinued without costs.
25.05Effect of Discontinuance on a Cross-Claim or Third Party Claim
Where an action is discontinued against a defendant who has cross-claimed or made a third party claim, the cross-claim or third party claim shall be deemed to be dismissed 30 days after the discontinuance, with costs payable by the plaintiff, unless the court orders otherwise during the 30 day period.
86-87
25.06Effect on Subsequent Action
(1)The discontinuance of an action in whole or in part shall not be a defence to a subsequent action, unless so provided by the order giving leave to discontinue or by the consent filed.
(2)Where a subsequent action in respect of the same subject matter is brought before payment of the costs of a discontinued action, the court may order a stay of the subsequent action until those costs have been paid.
25.07Application to Counterclaims, Cross-Claims and Third Party Claims
Subject to Rules 28, 29 and 30, this rule applies, with any necessary modification, to a counterclaim, a cross-claim or a third party claim.