Order 26 — Discontinuance or Withdrawal

(1) The Plaintiff may, at any time before receipt of the defence or after the receipt thereof, before taking any other proceeding in the action, by notice in writing duly filed and served, wholly discontinue the claim against all or any of the Defendants or withdraw any part or parts of the claim. The Plaintiff shall thereupon pay such Defendant’s costs of the action, or if the action be not wholly discontinued, the costs, occasioned by the matter so withdrawn.

(2) A discontinuance or withdrawal as the case may be, shall not be a defence to any subsequent claim.

(3) Where a Plaintiff has, after receipt of the defence taken further action, the Plaintiff may, with the leave of the Judge, discontinue the proceedings or any part thereof on such terms and conditions as the Judge may order.

(4) Where proceedings have been stayed or struck out upon a Plaintiff’s withdrawal or discontinuance under this Order, no subsequent claim shall be filed by that Plaintiff on the same or substantially the same facts until the terms imposed on the Plaintiff by the Judge have been fully complied with.

(5) The Judge may, upon the application of a Defendant, order the whole or any part of the alleged grounds of defence or counter claim to be withdrawn or struck out, upon such terms and conditions as the Judge may order.

When a cause is ready for trial, it may be withdrawn by either Plaintiff or Defendant upon producing to the Registrar a consent in writing signed by the parties, and thereupon a Judge shall strike out the matter without the necessity of attendance of the parties or their Legal Practitioners.