(1)If a regulator decides not to take—
(a)the action proposed in a warning notice given by it , or
(b)the action to which a decision notice given by it relates,
it must give a notice of discontinuance to the person to whom the warning notice or decision notice was given.
(2)But subsection (1) does not apply if the discontinuance of the proceedings concerned results in the granting of an application made by the person to whom the warning or decision notice was given.
(3)A notice of discontinuance must identify the proceedings which are being discontinued.
Cases considering section 389 (3)
[2013] EWCA Civ 918 · 29 July 2013Interprets
The Court held that communication of a decision to take no further action is intrinsic to effective discontinuance. An uncommunicated internal decision is not irrevocable, and a general website statement not addressed to the affected person is insufficient statutory notice (see paras [15]; [28]).
The obligation to give notice when the Authority decides not to take proposed or decided action forms part of the statutory discontinuance process. Prescribed communication to the affected person is necessary before the decision becomes binding (see paras [11]; [15]).
The statutory requirement that a notice identify the discontinued proceedings supported the conclusion that prescribed communication, rather than a general website publication, was intrinsic to effective discontinuance (see paras [11]; [15]).
[2025] UKUT 211 (TCC) · 30 June 2025Interprets
Section 389 requires a notice of discontinuance only where the regulator decides not to take any action under a decision notice. It does not apply where one action, such as a penalty, is withdrawn but another action continues. (see paras [11]-[16]; [20])
[2020] EWHC 2146 (Ch) · 7 August 2020Interprets
Uses the reference to a notice of discontinuance and “proceedings” as contextual evidence that the Warning and Decision Notice process has a formal procedural character.
What each judgment says about section 389 is in the case-law panel in the full Act.
682.This section requires a “notice of discontinuance” to be issued when the Authority decides not to proceed with action proposed in a warning notice (section 387) or in relation to which a decision notice (section 388) was given.
683.However a notice of discontinuance does not have to be given if the effect is purely to grant an application made by the person in question. In such cases the Act generally contains express provision requiring written notice to be given of the grant of the application.