Setting Aside Notices of Discontinuance and QOCS – Kite v The Phoenix Pub Group

elliot_kay_pi By Elliot Kay

The Claimant brought a claim in damages for injuries sustained in November 2014 when he fell into an uncovered man hole in the car park of a pub. Whilst the Defendant company operates a number of pubs it alleged that at the time of the accident the pub was owned, operated and occupied by a different company. The Defendant was asserting that it was not the correct company to pursue.

Default judgment was entered when the Defendant failed to respond to the claim form. The Defendant made applications to set aside default judgment and to strike out the claim. Default judgment was set aside on the basis that service had been invalid.

In relation to the application to strike out the Defendant provided Companies House records and Land Registry documents which illustrated that it had no connection with the pub or the company which actually owned/operated/occupied the pub at the relevant time.

The Claimant sought an adjournment of the application to strike out to allow time to carry out further investigations and produce evidence. The adjournment was granted on the basis that there was no prejudice to the Defendant in allowing the Claimant more time (although the Claimant was ordered to pay the Defendant’s costs of that hearing).

Having not collated any evidence in support of the Claimant’s position his solicitors served a notice of discontinuance on the Defendant’s solicitors. Shortly before the adjourned hearing the Claimant’s solicitors contacted the Defendant’s solicitors to inform them that they would not be able to recover their costs due to the QOCS protection afforded to the Claimant.

At the adjourned hearing the Defendant applied to set aside the notice of discontinuance and to strike out the claim. The judge found that he had an unfettered discretion to set aside a notice of discontinuance in pursuing the overriding objective and exercising his case management powers (although this can be done under CPR 38.4). Once the notice of discontinuance had been set aside the Claimant did not oppose the application to strike out. The Defendant was awarded its costs of both applications and given that the claim was struck out, those costs orders will be enforceable pursuant to CPR 44.15.

It should also be remembered that in cases involving fundamental dishonesty (which this case wasn’t) paragraph 12.4(c) of Practice Direction 44 permits the Court to direct that allegations of fundamental dishonesty may be determined at a final hearing whether or not the notice of discontinuance has been set aside.

I am grateful to Rebecca Jones of Hardwicke Chambers (who appeared for the Defendant) for her helpful summary of this case. Rebecca’s original note can be found here.



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