Appeals are abandoned for good reasons: the case settles, the judgment is satisfied, counsel advises against it, or the money at stake no longer justifies the cost. The Rules make the mechanism simple and the costs consequence automatic.
Order 7 Rule 20
An appellant may at any time file and serve a notice of discontinuance of the appeal and upon it being filed, the appeal shall be abandoned.
“At any time.” Before the appeal book is settled, after it is listed, on the morning of the hearing.
“Upon it being filed.” Filing is the operative act, as it is for the notice of appeal under Rule 11. The appeal is abandoned then, not when the Court makes an order.
“File and serve.” Both. Service is what tells the respondent to stop incurring costs, and every day of delay in serving adds to the amount you will pay.
Order 7 Rules 22 and 23
A party filing a notice under Rule 20 shall, except in criminal appeals, be liable to pay the costs of the other party or parties occasioned by his appeal.
This is automatic. It does not depend on an order, and it is not discretionary in the way an ordinary costs order is.
A party whose costs are payable under Rule 22 may tax the costs, and if the taxed costs are not paid within 14 days after service of the certificate of taxation, may enter judgment for the taxed costs.
So the respondent has a self-contained route from discontinuance to an enforceable judgment: tax, serve the certificate, wait 14 days, enter judgment.
Where a party discontinues or withdraws a proceeding, the provisions of Order 7 Division 6 or Order 11 Division 15 will apply, and Rule 8 applies to the taxation and recovery of those costs.
See taxation of costs.
The exception
Rule 22 excludes criminal appeals from the costs liability. An appellant who abandons a criminal appeal is not exposed to a costs order under this rule.
That reflects the position generally in criminal matters, and it removes a disincentive to abandoning an appeal that counsel has advised is hopeless. See criminal appeals.
Order 7 Rule 21
The notice filed by an appellant under Rule 20 does not affect any other appellant in the appeal.
Where two or more appellants have joined and one settles, that appellant discontinues and the appeal proceeds for the rest. The discontinuing appellant remains liable under Rule 22 for the costs occasioned by his appeal — which, where the grounds were common, is a question of apportionment for taxation.
Does it take the cross-appeal with it?
Order 7 Rule 27 says a respondent who wishes to appeal from part of the judgment need not institute a substantive appeal but may file a notice of cross-appeal. The cross-appeal is a substitute for a separate appeal, with its own grounds under Rule 28(d) and its own relief under Rule 28(e).
An appellant’s discontinuance under Rule 20 abandons the appeal. It does not, in terms, abandon the cross-appeal.
Where a matter settles overall, the safe course is a consent order or terms disposing of both, rather than a bare notice of discontinuance. See cross-appeals.
What the notice says
Entitle it in the appeal, head it “Notice of Discontinuance”, and state that the appellant discontinues the appeal — identifying whether the whole appeal or, where there are several appellants, the appeal of a named appellant.
Sign it and show an address for service. Order 1 Rule 8 makes it sufficient compliance that a document is substantially in accordance with the requirement.
Where costs have been agreed, say so — a recital that the parties have agreed costs in a stated sum avoids a taxation under Rule 23.
Before you discontinue
Abandon some grounds only. A supplementary notice under Rule 25 can delete grounds without ending the appeal — but only before the date of the appointment to settle.
Settle on terms including the appeal. Where the parties have agreed a resolution, consent orders disposing of the appeal record the agreement and deal with costs in one document.
Ask for an adjournment. Under Order 7 Rule 61, an appeal not heard at the sittings for which it was set down stands adjourned to the next sittings, subject to any direction. Where the difficulty is timing rather than merit, that may be the answer.
What abandonment means
Once the appeal is abandoned, the National Court judgment is final between the parties, and any stay granted pending the appeal falls away. A respondent may enforce.
There is no route back. An appellant who discontinues and then changes their mind is out of time under section 17 of the Supreme Court Act, since the 40 days run from the judgment.
Discontinuance is one of the few steps in an appeal that cannot be undone and does not require the Court’s approval. Rule 20 makes it effective on filing, without any opportunity for the Court to consider whether it was a sensible step.
Where the appeal is being abandoned because of cost rather than merit, ask first whether the respondent will agree to limit the costs payable under Rule 22, or whether the grounds can be narrowed instead. A discontinuance that saves a week of preparation and produces a taxed costs judgment under Rule 23 may be no saving at all.
Sources
- Supreme Court Rules 2012 — O 1 r 8; O 7 rr 20–23, 25, 27, 28, 61; O 11 Div 15; O 12 rr 8, 22
- Supreme Court Act (Chapter 37) — s 17
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.