Discontinuing Proceedings – Leaving the Door Open

In a recent Judgment by the Commercial Judge in N.I., Mr Justice Horner, discussed the distinction between discontinuing/withdrawing proceedings and having proceedings dismissed or obtaining Judgment.

In that case the 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 with both parties bearing their own costs, the Plaintiff’s solicitor sought to issue third party proceedings to again join the third party.

This Judgment makes it clear that proceedings which have been withdrawn or discontinued can be brought back again before the Court, unless an underlying consent agreement prevents it.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. A link to this Judgment can be found at:

http://www.bailii.org/nie/cases/NIHC/QB/2019/30.html

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Dispute Resolution Team at Cleaver Fulton Rankin for further advice or information.

Rachael Gamble, Associate Solicitor, Dispute Resolution Team, Cleaver Fulton Rankin, Solicitors.

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