Christina Ann Mabb v James English (6 December 2017, High Court (Queen’s Bench Division), unreported)

The claimant brought clinical negligence proceedings against the defendant consultant gynaecologist. The defendant initially applied to have the claim struck out on the basis that it had no reasonable prospect of success, but this application was refused. The defendant appealed this decision, and was granted permission to appeal. Following that grant of permission, the claimant filed a notice of discontinuance. The defendant applied to have this notice set aside, on the grounds that it was an attempt to prevent the exception to Qualified One-Way Costs Shifting (QOCS) under CPR 44.15 applying (where a claim has been struck out on the grounds that it has no reasonable prospects of success), and thereby deprived the defendant of the opportunity to recover his costs of the proceedings to date. The High Court held that a claimant was not required by the CPR to give a reason for discontinuing, and that this case did not fall into any of the categories where the Court’s permission was required to discontinue the claim. If there had been an abuse of the court’s process, this may be a persuasive factor in setting the notice of discontinuance aside, but this was by no means a conclusive factor. On the current facts, it was not, without more, an abuse of the court’s process to merely take steps to avoid a costs liability.