Hong Kong Regulations

THE RULES OF THE HIGH COURT - ORDER 21

WITHDRAWAL AND DISCONTINUANCE

(Past version on 01/07/1997).
(Past version on 30/06/1997).

1. Withdrawal of acknowledgment of service (O. 21, r. 1)

A party who has acknowledged service in an action may withdraw the
acknowledgment at any time with the leave of the Court.

2. Discontinuance of action, etc., without leave (O. 21, r. 2)

(1) Subject to paragraph (2A) the plaintiff in an action begun by writ may,
without the leave of the Court, discontinue the action, or withdraw any
particular claim made by him therein, as against any or all of the defendants
at any time not later than 14 days after service of the defence on him or, if
there are two or more defendants, of the defence last served, by serving a
notice to that effect on the defendant concerned.

(2) Subject to paragraph (2A) a defendant to an action begun by writ may,
without the leave of the Court-

   (a)  withdraw his defence or any part of it at any time,

   (b)  discontinue a counterclaim, 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 14 days after service on him of a
        defence to counterclaim or, if the counterclaim is made against two or
        more parties, of the defence to counterclaim last served, by serving a
        notice to that effect on the plaintiff or other party concerned.

(2A) A party in whose favour an interim payment has been ordered, in
accordance with Order 29, may not discontinue any action or counterclaim, or
withdraw any particular claim therein, except with the leave of the Court or
the consent of all the other parties.

(3) Where there are two or more defendants to an action begun by writ not all
of whom serve a defence on the plaintiff, and the period fixed by or under
these rules for service by any of those defendants of his defence expires
after the latest date on which any other defendant serves his defence,
paragraph (1) 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.
This paragraph shall apply in relation to a counterclaim as it applies in
relation to an action begun by writ with the substitution for references to a
defence, to the plaintiff and to paragraph (1), of references to a defence to
counterclaim, to the defendant and to paragraph (2) respectively.

(3A) The plaintiff in an action begun by originating summons may, without the
leave of the Court, discontinue the action or withdraw any particular question
or claim in the originating summons, as against any or all of the defendants
at any time not later than 14 days after service on him of the defendant's
affidavit evidence filed pursuant to Order 28, rule 1A(2) or, if there are two
or more defendants, of such evidence last served, by serving a notice to that
effect on the defendant concerned.

(3B) When there are two or more defendants to an action begun by
originating summons not all of whom serve affidavit evidence on the plaintiff,
and the period fixed by or under these rules for service by any of those
defendants of his affidavit evidence expires after the latest date on which
any other defendant serves his affidavit evidence, paragraph

(3A) shall have effect as if the reference therein to the service of the
affidavit evidence last served were a reference to the expiration of that
period.

(4) If all the parties to an action consent, the action may be withdrawn
without the leave of the Court at any time before trial by producing to the
Registrar a written consent to the action being withdrawn signed by all the
parties.

3. Discontinuance of action, etc., with leave (O. 21, r. 3)

(1) Except as provided by rule 2, a party may not discontinue an action
(whether begun by writ or otherwise) or counter-claim, or withdraw any
particular claim made by him therein, without the leave of the Court, and
the Court hearing an application for the grant of such leave may order
the action or counterclaim 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 by notice under Order 25, rule 7. (L.N. 152 of 2008)

4. Effect of discontinuance (O. 21, r. 4)

Subject to any terms imposed by the Court in granting leave under rule 3, the
fact that a party has discontinued an action or counterclaim 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.

5. Stay of subsequent action until costs paid (O. 21, r. 5)

(1) Where a party has discontinued an action or counterclaim or withdrawn any
particular claim made by him therein and he is liable to pay any other party's
costs of the action or counterclaim 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.

(2) An application for an order under this rule may be made by summons or by
notice under Order 25, rule 7. (L.N. 152 of 2008)

6. Withdrawal of summons (O. 21, r. 6)

A party who has taken out a summons in a cause or matter may not withdraw it
without the leave of the Court. (Enacted 1988)