(b)
discontinue a counter-claim, or withdraw any particular claim made by him therein, as
against any or all of the parties against whom it is made, at any time not later than fourteen
days after service on him of a defence to the counter-claim or, if the counter-claim is made
against two or more parties, of the defence to the counter-claim last served, by serving a
notice to that effect on the plaintiff or other party concerned.
(2)
Where there are two or more defendants to an action, not all of whom served a defence on
the plaintiff and the period fixed by or under this rule for service by any of those defendants
of his defence expires after the latest date on which any other defendant serves his defence,
sub-rule (1) of this rule shall have effect as if the reference therein to the service of the defence
last served, were a reference to the expiration of that period.
(3)
Sub-rule (3) of this rule shall apply in relation to a counterclaim as it applies in relation to an
action, with the substitution for references to a defence, to the plaintiff and to sub-rule (1) of
this rule, of references to a defence to counter-claim, to the defendant and to sub-rule (2) of
this rule respectively.
(4)
If all the parties to action consent, the action may be withdrawn without leave of the Court at
any time before trial by filing in the Registry a written consent to the action being withdrawn
signed by all the parties and the action shall thereafter be struck out by the Court.
Dis-continuance of action. Etc with leave.
3.
(1) Except as provided by rule 2 of this order, a party may not discontinue any action or
counter-claim, or withdraw any particular claim made by him therein without leave of the
court, and the court hearing an application for the grant of the leave may order the action or
counter claim to be discontinued or any particular claim made therein to be struck out, as
against any or all of the parties against whom it is brought or made on such terms as to costs,
the bringing of a subsequent action or otherwise as it thinks just.
(2)
An application for the grant of leave under this rule may be made by summons or motion on
notice.
Effect of discontinuance.
4.
Subject to any terms imposed by the Court in granting leave under rule 3 of this order, the
fact that a party has discontinued an action or counter-claim or withdrawn a particular claim
made by him therein shall not be a defence to a subsequent action for the same, or substantially the
same cause of action.
Stay of subsequent action until costs paid
5.
Where a party has discontinued an action or counter-claim or withdrawn any particular claim
made by him therein, and he is liable to pay costs to any other party of the action or
counter-claim or the costs occasioned to any other party by the claim withdrawn, then if, before
payment of those costs, he subsequently brings an action for the same or substantially the same
cause of action, the Court may order the proceedings in that action to be stayed until those costs
are paid.