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Unserved Summons - Notice of Discontinuance

  • 20-10-2015 11:13am
    #1
    HarryLime84
    Registered Users, Registered Users 2 Posts: 11 ✭


    Can you withdraw from proceedings that you initiated (but where you never actually served a summons) without filing a Notice of Discontinuance? A Notice would leave the plaintiff open to costs and that's to be avoided, if possible.

    Order 26 of the Rules of the Superior Courts states that "save as in this rule otherwise provided, it shall not be competent for the plaintiff to discontinue the action without leave of the Court..."

    Does this mean that the plaintiff simply can't walk away from the issue, even where the summons has not been served?


Comments

  • #2
    Peregrinus
    Registered Users, Registered Users 2 Posts: 26,998 ✭✭✭✭Peregrinus


    If the summons hasn't been served, I don't see that the defendant can have incurred any costs. So I don't see that a costs order against the plaintiff is a possibility.


  • #3
    Fred Swanson
    Closed Accounts Posts: 21,730 ✭✭✭✭Fred Swanson


    This post has been deleted.


  • #4
    HarryLime84
    Registered Users, Registered Users 2 Posts: 11 ✭HarryLime84


    Fred Swanson wrote: »
    If no summons has been served the defendant will have no knowledge of the fact proceedings were ever initiated. You can just walk away at this point.

    But what if the defendant was aware that the summons had been issued and sought legal advice in anticipation of it being served? Do you think those costs would be awarded?

    Order 26, Rule 1 simply says that the plaintiff shall pay "the defendant's costs of the action". But what amounts to an 'action' in this instance? Is it an 'action' as soon as a summons is issued in the Central Office, or is it when the defendant enters an appearance?


  • #5
    ohnonotgmail
    Registered Users, Registered Users 2 Posts: 40,641 ✭✭✭✭ohnonotgmail


    Perhaps your solicitor could answer that for you.


  • #6
    HarryLime84
    Registered Users, Registered Users 2 Posts: 11 ✭HarryLime84


    ohnonotgmail wrote: »
    Perhaps your solicitor could answer that for you.

    I'm working in a law firm as an intern. I've been asked to research this in my spare time. I've thumbed through what resources I have at my disposal but I can't find a precise answer. I just thought I might get a bit of joy on here. I used to have an account on here a few years ago when I was doing my degree and people were very helpful, so here I am again.


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  • #7
    MarkAnthony
    Closed Accounts Posts: 6,934 ✭✭✭MarkAnthony


    HarryLime84 wrote: »
    I'm working in a law firm as an intern. I've been asked to research this in my spare time. I've thumbed through what resources I have at my disposal but I can't find a precise answer. I just thought I might get a bit of joy on here. I used to have an account on here a few years ago when I was doing my degree and people were very helpful, so here I am again.

    LOL lets hope it's not the one Tom Young works for/owns! :D


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