(1) Where —
(a) the claimant requires the defendant's consent or the permission of the court to discontinue a claim and the claimant discontinues without the consent of the defendant or the permission of the court; or
(b) the claimant has failed to serve a defendant as required by rule 37.3(1)(a),
the defendant may apply to have the notice of discontinuance set aside.
(2) A defendant may not apply under this rule more than 28 days after the date the notice of discontinuance was served on that defendant.