Read the full judgment text of HCA 009183/1995 on BabelCite. This High Court CFI judgment was delivered on 9 May 1996 before The Hon. Mr. Justice Keith.
Civil procedure – discontinuance of action – costs – discretion of court under Ord. 21 r. 3(1) – plaintiff negotiated tenancy with option to renew at market rent to be agreed – defendant solicitors prepared tenancy agreement – plaintiff later exercised option – dispute over market rent – defendant solicitors took view option was void for uncertainty – landlord refused to renew and brought possession proceedings – plaintiff counterclaimed for specific performance – proceedings compromised with fresh rent agreed – plaintiff then sued defendant solicitors in negligence for including allegedly unenforceable option – defendant applied to strike out – plaintiff applied for leave to discontinue – Master Cannon granted leave but ordered each party to bear own costs – defendant appealed – whether the general rule that a defendant is entitled to costs on discontinuance applies only where discontinuance can be equated with defeat or likely defeat – whether the court should impose a condition preventing commencement of a fresh action on the same grounds – whether the defendant owed the plaintiff a duty of care in tort – held: the general rule is not so confined; Ord. 21 r. 3(1) confers a complete discretion to do justice between the parties; the defendant owed no duty of care to the plaintiff, following Gran Gelato Ltd. v. Richcliff (Group) Ltd.; the action was bound to fail; the master should have ordered the plaintiff to pay the defendant's costs of the action including the costs of the application to discontinue; further, leave to discontinue should be granted on condition that the plaintiff not commence another action on the same or substantially the same grounds; appeal allowed; order of Master Cannon set aside.
Legal issues: Discretion to depart from general rule on costs on discontinuance under Ord. 21 r. 3(1) · Whether discontinuance should be made conditional on not commencing a fresh action on the same grounds
Outcome: Appeal allowed; order of Master Cannon of 15 April 1996 set aside and substituted with an order granting the plaintiff leave to discontinue on the conditions set out below.
Cited by 1 case