HM Attorney General v Willett

A claimant may discontinue proceedings without the court’s leave where the applicable rules impose no such requirement. The ordinary costs consequence of discontinuance is that the claimant pays the defendant’s costs incurred up to service of the notice. The court may depart from that consequence where the proceedings were properly brought, reasonably continued and properly discontinued. In such circumstances, it may order that there be no order as to costs.

The Attorney General applied under section 42 of the Supreme Court Act 1981 for a declaration that James Willett was a vexatious litigant. The application followed extensive litigation arising from a dispute about cavity wall insulation. An extended civil restraint order had prevented further proceedings concerning that dispute, and the Attorney General concluded that the restraint order provided sufficient protection.

The Attorney General therefore discontinued the application and sought an order that there be no order as to costs. The defendant had notice of the hearing but did not attend. The central issues were whether discontinuance required the court’s leave and how the costs of the discontinued proceedings should be dealt with.

1. The proceedings were discontinued without any order as to costs. The Attorney General’s application to discontinue was properly made, and the court directed an expedited transcript.

2. There was no requirement in the applicable rules for the Attorney General to obtain the court’s leave before discontinuing the proceedings.

3. Discontinuance ordinarily engages Order 38.6, under which a claimant who discontinues is liable for the defendant’s costs incurred on or before service of the notice of discontinuance. The court nevertheless has power to order otherwise.

4. The court exercised that power because the vexatious-litigant proceedings had been properly and reasonably brought and continued. Their discontinuance was also reasonable because the existing civil restraint order, and its anticipated continuation, appeared capable of protecting potential defendants and the court’s processes.

5. The hearing could properly proceed in the defendant’s absence. He had received notice, had not sought an adjournment, and had submitted written material which the court took into account.

6. The court warned that any further meritless proceedings could lead to a fresh application under section 42 of the Supreme Court Act 1981, with every prospect of success.