| WITHDRAWAL AND DISCONTINUANCE |
| Withdrawal of notice of intention to contest or not contest (O. 16, r. 1) |
| 1. A party who has filed a notice of intention to contest or not contest in an action may withdraw the notice at any time with the permission of the Court. |
| Discontinuance of action, etc., without permission (O. 16, r. 2) |
2.—(1) The claimant in an action begun by originating claim may, without the permission of the Court, discontinue the action, or withdraw any particular claim made by the claimant therein, as against all or any of the defendants at any time not later than 14 days after service of the defence on the claimant or, if there are 2 or more defendants, of the defence last served, by serving a notice in Form 32 to that effect on the defendant concerned.(2) A defendant may, without the permission of the Court —| (a) | withdraw the defendant’s defence or any part of it at any time; or | | (b) | discontinue a counterclaim, or withdraw any particular claim made by the defendant therein, as against all or any of the parties against whom it is made, at any time not later than 14 days after service on the defendant of a defence to counterclaim or, if the counterclaim is made against 2 or more parties, of the defence to counterclaim last served, |
| by serving a notice in Form 32 to that effect on the claimant or other party concerned. |
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| (3) Where there are 2 or more defendants to an action not all of whom serve a defence on the claimant, and the period fixed under these Rules for service by any of those defendants of his or her defence expires after the latest date on which any other defendant serves his or her defence, paragraph (1) has effect as if the reference therein to the service of the defence last served were a reference to the expiration of that period. |
| (4) Paragraph (3) applies in relation to a counterclaim as it applies in relation to an action with the substitution of references to a defence, to the claimant and to paragraph (1), with references to a defence to counterclaim, to the defendant and to paragraph (2), respectively. |
| (5) If all the parties to an action consent, the action may be withdrawn without the permission of the Court at any time before trial by producing to the Registrar a written consent to the action being withdrawn signed by all the parties. |
(6) An action begun by originating claim is deemed to have been discontinued against a defendant if a memorandum of service in Form 12 is not filed in respect of the service of the originating claim on that defendant within 12 months after the validity of the originating claim for the purpose of service has expired, and, within that time —| (a) | a notice of intention to contest or not contest has not been filed in the action by that defendant; and | | (b) | judgment has not been obtained in the action against that defendant in respect of the whole or any part of the relief claimed against that defendant in the action. |
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| (7) Subject to paragraph (8), if no party to an action or a cause or matter has, for more than one year (or such extended period as the Court may allow under paragraph (9)), taken any step or proceeding in the action, cause or matter that appears from records maintained by the Court, the action, cause or matter is deemed to have been discontinued. |
| (8) Paragraph (7) does not apply where the action, cause or matter has been stayed pursuant to an order of court. |
| (9) The Court may, on an application by any party made before the one year mentioned in paragraph (7) has elapsed, extend the time to such extent as the Court thinks fit. |
| (10) Where an action, a cause or a matter has been discontinued under paragraph (6) or (7), the Court may, on application, reinstate the action, cause or matter, and allow it to proceed on such terms as the Court thinks just. |
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| Discontinuance of action, etc., with permission (O. 16, r. 3) |
3.—(1) Except as provided by Rule 2, a party may not discontinue an action (whether begun by originating claim or otherwise) or counterclaim, or withdraw any particular claim made by him or her therein, without the permission of the Court, and the Court hearing an application for the grant of such permission may order the action or counterclaim to be discontinued, or any particular claim made therein to be struck out, as against all or any of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as the Court thinks just.| (2) An application for the grant of permission under this Rule may be made by summons. |
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| Effect of discontinuance (O. 16, r. 4) |
| 4. Subject to any terms imposed by the Court in granting permission under Rule 3, the fact that a party has discontinued or is deemed to have discontinued an action or counterclaim or withdrawn a particular claim made by him or her therein is not a defence to a subsequent action for the same, or substantially the same, cause of action. |
| Stay of subsequent action until costs paid (O. 16, r. 5) |
| 5. Where a party has discontinued or is deemed to have discontinued an action or counterclaim or withdrawn any particular claim made by him or her therein and he or she is liable to pay any other party’s costs of the action or counterclaim or the costs occasioned to any other party by the claim withdrawn, then, if before payment of those costs, he or she subsequently brings an action for the same, or substantially the same, cause of action, the Court may order the proceedings in that action to be stayed until those costs are paid. |
| Withdrawal of summons (O. 16, r. 6) |
| 6. A party who has taken out a summons in a cause or matter may not withdraw it without the permission of the Court. |
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