Judge: Gross LJ and Coulson LJ
Citation:  EWCA Civ 1066
A party that indicated its intention to discontinue, but did not serve a notice of discontinuance until 10 days later, was liable to pay the other side’s costs until the date of the Notice of Discontinuance.
In an action involving anti-competitive behaviour, the Claimant indicated in a letter, in general terms, that proceedings would not be pursued. They did not, however, serve their Notice of Discontinuance until ten days later. The Master at first instance had awarded the Defendants the costs from the date of the original letter. On appeal to the Court of Appeal, it was held that the letter did not say unequivocally that the action was going to be discontinued so that the Appellants were not bound to assume that the action was definitely coming to an end. The letter was not sufficient to bring about the end of the proceedings. There had been no satisfactory explanation as to why the Notice of Discontinuance had not been issued until ten days later. The Costs Order was varied so that the Appellant Defendant was entitled to its costs until the date of the Notice of Discontinuance.