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You act on behalf of Mr. Johnson in a claim for damages for personal injury arising from an accident during a fishing trip. Mr. Johnson fell from a boat during the excursion. The fishing company has denied liability, claiming Mr. Johnson was drunk and refused to cooperate with the skipper's instructions. Mr. Johnson admits he had been drinking but claims he stayed on deck due to seasickness. The defendant has served witness statements from three passengers confirming Mr. Johnson's drunken state and two others stating that he was uncontrollable, causing the trip to be aborted. Mr. Johnson now wishes to discontinue his claim.

Which of the following best represents how you should advise your client to proceed?

A. Apply to the court on notice to discontinue the claim, whereupon the usual order will be that your client pay the costs of the defendant

B. Make an offer pursuant to a Part 36 offer to accept a low sum in settlement of the claim in an attempt to avoid the usual consequence of discontinuation that your client be ordered to pay the costs of the defendant

C. Apply to the court ex parte to discontinue the claim, whereupon the usual order will be that your client pay the costs of the defendant

D. Make a Calderbank offer to accept a low sum in settlement of the claim in an attempt to avoid the usual consequence of discontinuation that your client be ordered to pay the costs of the defendant

E. Advise the court and defendant that the claim is discontinued, whereupon the usual order will be that your client pay the costs of the defendant

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According to rule 38.2 of the CPR, a claimant may discontinue a claim at any time by filing and serving a notice of discontinuance under rule 38.3. However, under rule 38.6, a claimant who discontinues is generally liable for the defendant's costs incurred up to the discontinuance date. Therefore, options A and C are not ideal as it is not necessary to make an application to discontinue the claim. Option E is also not the best answer, as it would expose Mr. Johnson to the costs consequences of discontinuance without exploring potential settlements. Making a Part 36 offer (Option B) is preferable because it can put pressure on the defendant and may result in a settlement, potentially avoiding the costs of discontinuation. If a Part 36 offer is not successful, a Calderbank offer can be made as a concession.

Key Point: A Part 36 offer can be an effective strategy to settle a claim and avoid the costs consequences of discontinuation, providing increased pressure on the defendant to settle.

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