Gilham v Browning

A county court has an inherent jurisdiction to strike out a procedurally compliant notice of discontinuance if its use is an abuse of process. The jurisdiction is exceptional and must be used with circumspection, but it is not confined to fixed categories. Abuse is a question of fact and degree. Using discontinuance to obtain an unjust collateral advantage, such as escaping an unappealed evidence ruling and restarting the claim, is a plain abuse. The historical common-law right to elect a nonsuit did not survive the introduction of discontinuance provisions in the county court. The modern nonsuit rule gives the court, rather than the litigant, a limited power to order a nonsuit after the evidence has been heard. The discretionary power recognised in Clack v Arthur's Engineering Limited remains unaffected.

The Brownings defended a county court claim concerning the sale of goats and brought a substantial counterclaim. After their late evidence was excluded, they served a notice discontinuing the counterclaim shortly before trial, intending to commence fresh proceedings in which the evidence could be used. Judge Bishop set aside the notice as an abuse, refused their attempt to be nonsuited, and dismissed the counterclaim after they offered no evidence. The claim was compromised.

The Brownings appealed. The appeal raised whether the county court could set aside a notice of discontinuance for abuse and whether a general common-law right to elect a nonsuit survived in the county court. The earlier evidence ruling, based on Beachley Property v Edgar The Times, 18.7.96, was not itself under appeal.

1. Appeal dismissed unanimously. May LJ gave the judgment, with Potter LJ and the Master of the Rolls agreeing.

2. A notice of discontinuance may constitute an abuse even where it complies with the procedural rules. Following Castahno v Brown & Root [1981] AC 557, the court has an inherent power to prevent a party using its process to obtain a collateral advantage which it would be unjust to retain. The absence of an express power to set aside a notice in Order 18 of the County Court Rules did not exclude that jurisdiction. The power must be exercised sparingly, in plain cases and with circumspection. The question is one of fact and degree, and the categories of abuse are not closed.

3. The Brownings’ purpose was clear and unconcealed. They sought to escape the consequences of an unappealed order excluding their evidence, avoid the imminent trial of the counterclaim, and commence fresh proceedings where the evidential difficulty would not arise. That was use of the court process to secure an unjust collateral advantage and was plainly abusive. The issue could properly be determined in the county court when the notice was served. The later High Court proceedings might also raise abuse, but their existence did not prevent the county court from addressing the abuse at the earlier stage. Order 18 rule 2(3) also made the status of the first proceedings relevant to any later action.

4. The common-law right to elect to be nonsuited had not survived the introduction of discontinuance provisions in the county court. Order 21 rule 2(1) gives the court a limited discretion to nonsuit a claimant who fails to prove the claim; it gives no litigant a right to choose a nonsuit. The reasoning in Fox v Star Newspapers [1898] 1 QB 636, upheld in the House of Lords [1900] AC 19, applied equally to the county court because discontinuance covered the ground formerly occupied by nonsuit.

5. Clack v Arthur’s Engineering Limited [1959] 2 QB 211 remained authority for the court’s discretionary power to order a nonsuit after the evidence had been completed, even without the claimant requesting it. Its wider statement that a claimant could elect a nonsuit as of right before verdict was obiter and did not establish a surviving general right. Obiter dicta were also given that, had such a right survived, the county court would have had jurisdiction to refuse its exercise as an abuse.

6. The county court orders were upheld. The appeal was dismissed. A section 18 costs order was made, the appellants’ contribution was assessed at nil, their costs were subject to legal aid taxation, and leave to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): Appeal from the Kingston-upon-Thames County Court dismissed; the court upheld the orders setting aside the notice of discontinuance and refusing a nonsuit. [1998] EWCA Civ 139
2. Kingston-upon-Thames County Court: On 9 December 1996, Judge Bishop set aside the notice of discontinuance, refused the Brownings’ attempt to be nonsuited, and dismissed the counterclaim after they offered no evidence. The principal claim was compromised.