If an action is discontinued rather than dismissed, it is clear that a second action may be brought even if it arises out of the same facts as the discontinued action, although the permission of the court would be needed under CPR Part 38.7 if the action is discontinued after the defendant has served a defence.

It may either be discontinued under CPR Part 38 or it may be dismissed. Under the CPR an action cannot be withdrawn. The first draft order, as per the discussions, stated that ‘proceedings be withdrawn’.Īs the Court of Appeal notes, there is no such thing as ‘withdrawing’ proceedings: The clear intention was to potentially bring fresh proceedings depending on investigation of the tenancy agreements. In a series of telephone calls and exchange of a draft order with Ms T’s solicitor, solicitors for the receivers stated that they believed the tenancy agreements were not genuine, but that the receivers would need time to investigate and would therefore agree to the proceedings being ‘withdrawn’ on no order as to costs and the trial the next day vacated. However, Ms T did not provide the tenancy agreements to the receivers’ solicitors until 24 September 2008, although Ms T was represented. Ms Tuli defended claiming to be have been a tenant since 2003, under two successive tenancy agreements. The solicitors for the receivers issued a possession claim against trespassers, CPR 55.1. When the receivers instructed solicitors to sell the property, it was discovered that Ms Tuli and her two daughters were in occupation. The charge had been granted by BRM Investments Ltd to Clydesdale Bank plc. Spicer and Shinners were Law of Property Act 1925 receivers, appointed under a charge in respect of a London flat. A case perhaps best filed under the ‘Ooops’ category, which only took a trip to the Court of Appeal to sort out

Judicial consent meaning