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In certain circumstances an action may be discontinued, or a defence withdrawn. Thus at any time before receipt of defence, or after receipt thereof before taking any proceeding other than interlocutory (e.g., a summons for par ticulars), the plaintiff may, without leave, by notice in writing dis continue the whole action, or withdraw any part of it as against all or any of the defendants, subject to the payment of costs (0. 26, r. I).
In former days it was competent for a defendant to "demur" to the statement of claim on the ground that it disclosed no cause of action. The result was that many a claim was defeated and costs were often incurred merely because the plaintiff had not put his case in proper form. Now, however, demurrer is abolished (0. 25, r. I) but any party may raise a point of law by his pleading, and the point so raised shall be disposed of at or after the trial subject to this, that if the parties consent or the court so orders the point may be set down for hearing and disposed of before the trial (0. 25, r. 2). If the decision substantially disposes of the whole action, the action may be dismissed (0. 25, r. 3). This course may be conveniently adopted where it is obvious that a serious question arises as to whether the statement of claim as drafted discloses any cause of action, or the defence any answer in law to the claim.
The court may order a pleading to be struck out on the ground that it discloses no reasonable cause of action or answer (0. 25, r. 4). In any such case, or if the action or defence be shown by the pleadings to be frivolous or vexatious, it may be stayed or dismissed, or judgment may be entered for the defendant accordingly as may be just (ib.). To succeed in such an application, an objecting party must be able to point to some defect in the pleading itself. The rule is only acted upon in plain and obvious cases. So if in an action on a contract it be clear that there is no contract between the plaintiff and the defendant; or no contract valid in law; or that the matter is already res judicata, or where the statement of claim on the face of it shows that there is a good defence, it will be struck out.
But the court will generally give a party leave to amend a pleading before striking it out. Apart from the rule above men- .
tioned (and 0. 19, r. 25, which enables anything scandalous or vexatious, or which tends to delay, etc., the trial of an action, to be struck out) the court has inherent jurisdiction to stay all proceedings before it which are obviously frivolous or vexatious or an abuse of its process. Discontinuance by the plaintiff does not alter a counterclaim, but a counterclaim cannot be set up after discontinuance.
A defendant may by leave, and only by leave, and upon terms, withdraw the whole or part of his defence or counterclaim. If the defence is withdrawn, the plaintiff can sign judgment in de fault of defence. An application so to withdraw may be made at any time. A cause entered for trial may be withdrawn by either plaintiff or defendant upon producing a consent in writing to the proper officer (0. 26, r. 2). The plaintiff must pay the defendant's costs if he discontinue an action (0. 26, r. 3) ; and if he bring another action for the same or substantially the same cause, it may be stayed if the costs of the former action are not paid (0. 26, r. 4).
The rules of pleading are enforced by this—that if a party does not plead as and when required, he may if he is a plaintiff have his action dismissed, if he is a de fendant have judgment signed against him. Thus if a plaintiff being bound to deliver a statement of claim does not do so within the time allowed, the defendant may apply to have the action dismissed for want of prosecution, and on the hearing of the application the court may either dismiss the action or make such order as shall be thought just (0. 27, r. I). Where the plaintiff delivers his statement of claim after the application has been made, the court will generally make no order save that he pay the costs. The plaintiff need not deliver a statement of claim save under an order for directions, for which he must himself apply. If he does not so apply within 14 days of the defendant's appearance the defendant may have the action dismissed (0. 3o, r. 8). A plaintiff may be in default in delivering a reply and de fence to a counterclaim. If so, the defendant's only remedy is to move for judgment under 0. 27, r. i 1, even when the counter claim is for a liquidated demand, and even if some other person has been made a defendant to the counterclaim.