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Toplain Ltd v Orange Retail Ltd (2012)


Where a claimant had served a notice of discontinuance in error, it had been open to it to invoke the court's jurisdiction under CPR r.3.10 to correct that error; it could not be said that r.38.5(2) clearly intended to restrict the setting aside of notices of discontinuance to those situations provided for in r.38.4 thereby precluding the application of other rules to correct procedural errors.


The appellant landlord (T) appealed against a decision of a county court setting aside a notice of discontinuance under CPR r.3.10 that had been served in error by the respondent (O).

O was a company within a group that had retail outlets in two specific locations. T was the landlord of the first premises. O commenced proceedings under the Landlord and Tenant Act 1954 against T, and was also involved in litigation with the landlord of the second premises. The same solicitors had been retained by O in relation to both sets of proceedings. In October 2011 O filed a notice of discontinuance in the proceedings against T in accordance with CPR r.38.3, a copy of which was sent to T, together with a covering letter. There was nothing on the face of the notice, or in O's covering letter, which suggested error. However, the service on T in relation to the proceedings concerning the first premises had been in error; O's solicitors had been instructed to file a notice of discontinuance in relation to the proceedings concerning the second premises. After the discovery of that error four days after service, O wrote to the county court asking that the notice of discontinuance not be filed. The next day O contacted T stating that the notice had been served in error; asking them to disregard it, and stating that it had not been O's intention to discontinue those proceedings, or to vacate the first premises. O also stated that the notice was of no effect. The county court set aside the notice under the court's general powers of management under r.3.10.

T submitted that CPR Pt 38 was an exclusive code which provided for the circumstances in which a notice of discontinuance could be set aside underCPR r.38.4, which did not allow recourse to r.3.10; it had been a conscious drafting decision for r.38.4 to have nothing to say about a claimant per se and the words "proceedings are brought to an end" in CPR r.38.5(2), in relation to when discontinuance took effect, were clear and absolute. Accordingly, T submitted, no party bar a defendant could apply to set aside a notice of discontinuance; the general power under r.3.10 did not override Pt.38.


(1) O had been wrong in its letter to T to state that the notice of discontinuance served on T was of no effect; CPR r.38.5(1) provided that a notice of discontinuance took effect on the date that it was served. (2) T was correct to say that in the ordinary course under r.38.4 only a defendant could seek to set aside a notice of discontinuance not the party who had served the notice. However, that did not mean that the rule excluded other applicable rules; as r.38.4 did not deal with the question of applications by claimants to set aside notices of discontinuance, there was no question of subverting r.38.4 if r.3.10 were invoked. The instant application was self-evidently not an application by a defendant, which was the situation that r.38.4 addressed. The court could not place the weight contended for by T on the words "proceedings brought to an end"; if there was no scope for the operation of r.3.10, or if it applied and the court declined to correct an error, there was nothing to disturb that result. However, in the interpretation of CPR r.38.5, the mandate that the court had to give effect to the overriding objective pursuant to r.1.2 was relevant: the question was about the intention behind r.38.5 and it was therefore important to ask whether r.38.5(2) clearly intended to preclude the application of other rules where there had been procedural error. That was not a necessary interpretation of r.38.5(2) if the court was not required to reach that construction. That was to be contrasted with an application for extension of time for serving a claim form under CPR r.7.6where the overriding objective was that time periods were strict so that the occasions on which time was extended would not be due to simple oversight. The court was not being asked to rectify or correct a document, but to correct an error consisting of sending a notice of discontinuance where none should have been sent at all, Steele v Mooney [2005] EWCA Civ 96, [2005] 1 W.L.R. 2819 considered. It had therefore been open to O to invoke the court's jurisdiction under r.3.10 to correct the error that had occurred in the service of the notice of discontinuance, and have the notice set aside. 

Appeal dismissed

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26 Jul 2012

Chancery Division
Roth J

‚ÄčLTL 27/7/2012

John McGhee QC