Gilham v Browning & Anor [1998] EWCA Civ 139 (03 February 1998)

Gilham v Browning & Anor [1998] EWCA Civ 139 (03 February 1998)

The County Court has jurisdiction to strike out a notice of discontinuance if it is an abuse of process, and there is no surviving general common law right to elect to be nonsuited in the County Court; the judge was correct to refuse both discontinuance and nonsuit in this case as the Brownings' actions constituted an abuse of process.

Citation
[1998] EWCA Civ 139
Parties
Plaintiff: Kenneth Gilham (deceased) / Mrs Gilham (executrix); Defendant/counterclaimant: Mr and Mrs Browning
Jurisdiction
England and Wales
Judgment Date
03 February 1998
Procedural Posture
Civil Appeal / Appeal From County Court Judgment and Order
Outcome
Appeal dismissed
Legal Topics
Abuse of Process, Discontinuance of Proceedings, Nonsuit, County Court Jurisdiction
Civil Procedure Abuse of Process Discontinuance of Proceedings Nonsuit County Court Jurisdiction

Case Brief

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Parties

Kenneth Gilham (deceased) / Mrs Gilham (executrix)

Plaintiff

Mr and Mrs Browning

Defendant/counterclaimant

Procedural Posture

Civil Appeal / Appeal From County Court Judgment and Order

Legal Issues

  1. 1 Whether the County Court has power to refuse to permit a party to serve an effective Notice of Discontinuance if to do so is an abuse
  2. 2 Whether a general common law right to choose to be nonsuited survives in the County Court and whether the court can refuse to permit this if it is an abuse

Ratio Decidendi

The County Court has jurisdiction to strike out a notice of discontinuance if it is an abuse of process, and there is no surviving general common law right to elect to be nonsuited in the County Court; the judge was correct to refuse both discontinuance and nonsuit in this case as the Brownings' actions constituted an abuse of process.

Court Disposition

Appeal dismissed

Orders

  • Section 18 costs order
  • Appellant's contribution assessed at nil