What is the Difference Between Withdrawal and Discontinuance of a Claim in a Civil or Commercial Action?
A recent judgment delivered by Mr Justice Horner in the NI Commercial Court discusses the distinction between withdrawing or discontinuance of a claim proceedings and having proceedings dismissed or obtaining judgment.
In this case proceedings were discontinued against a third party on the basis of expert evidence at an early stage in the proceedings. However, upon further expert evidence, it became apparent that there was liability attaching to the third party for the Plaintiff’s claim in breach of contract and negligence. Despite the proceedings against the third party having previously been discontinued (discontinuance of a claim) with both parties bearing their own costs, the Plaintiff’s solicitor sought to issue third party proceedings to again join the third party.
Judgment This Judgment makes it clear that proceedings which have been withdrawn or a discontinuance of a claim can be brought back again before the Court unless an underlying consent agreement prevents it. To ensure the finality of proceedings, they should be dismissed or Judgment entered to ensure that they cannot be brought back before the Court.
Of course, the proceedings can only be resurrected, if the claim is within the relevant limitation period. This is an important concept to be considered when settling proceedings. To ensure that no further action can be brought, the proceedings should be dismissed.