Three different things are described loosely as “withdrawing”, and the Rules treat each differently.
Order 11 Rule 29
A party making an application or claiming any relief may withdraw the proceedings so far as concerns the whole or any part of his application or claim for relief —
(a) without leave before the filing of an appearance by respondents;
(b) with the consent of all of the parties appearing or leave of the Court before a date is set for hearing;
(c) with the leave of the Court once a date has been set for hearing.
The filing of an appearance under Order 11 Rule 2, and the setting of a hearing date — which under Order 13 Rule 12 happens at the Directions Hearing and is confirmed at the Status Conference.
Note also that Rule 29 allows withdrawal of the whole or any part of a claim for relief. Abandoning one ground or one head of relief is a partial withdrawal, not an all-or-nothing choice.
Order 11 Rule 30
(1) Leave to withdraw may be granted by the Court unconditionally or upon such conditions as to the Court seem just.
(2) Unless the Court otherwise orders, the party withdrawing proceedings shall bear the costs of all parties who have entered an appearance in the proceedings up to and including the day on which notice of withdrawal is served on each of those other parties.
The costs run to the day the notice is served on each party — so delay in serving adds to the bill. Order 12 Rule 22 confirms that on discontinuance or withdrawal the provisions of Order 7 Division 6 or Order 11 Division 15 will apply, and that Rule 8 applies to the taxation and recovery of those costs.
Order 7 Rules 20 to 23
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. No leave is required at any stage.
Rule 21 — the notice filed by an appellant does not affect any other appellant in the appeal.
Rule 22 — the party filing it shall, except in criminal appeals, be liable to pay the costs of the other party or parties occasioned by his appeal.
Rule 23 — those costs may be taxed, and if not paid within 14 days after service of the certificate of taxation, the party may enter judgment for the taxed costs.
Order 11 Rule 31
A party appearing in a proceeding may withdraw its appearance and any submissions filed, subject to any order as to costs as the Court or a Judge considers just.
This is not withdrawal of a claim — it is a party who entered an appearance under Order 11 Rule 2 deciding not to be heard after all. The proceeding continues without them.
The costs qualification matters: a party who appears, causes the other side to answer, then withdraws may pay for the work occasioned.
Order 11 Rule 6
Where a lawyer ceases to act for a party, he shall file in the registry a notice of that fact.
Until that is done, Rule 7(c) continues to make the lawyer’s disclosed address the place at which service is effected whilst such lawyer continues to act for a party, and Rule 5 provides that the address shall remain the address for service until notice of change of address is filed in the registry and served on any other party.
A lawyer who ceases to act without filing the Rule 6 notice leaves documents being served at an office that is no longer following the matter — and the client may not learn of a Directions Hearing, a Status Conference, or a peremptory order under Order 7 Rule 48.
Order 13 Rule 8(c) requires, where parties are represented, that a lawyer who has carriage or knowledge of the matter must attend the Directions Hearing. Where representation is changing, that needs to be arranged, not assumed.
Choosing correctly
| Situation | Provision | Leave? |
|---|---|---|
| Appellant abandoning an appeal | O 7 r 20 | No — effective on filing |
| One of several appellants abandoning | O 7 rr 20, 21 | No — does not affect the others |
| Applicant withdrawing before any appearance | O 11 r 29(a) | No |
| Applicant withdrawing before a hearing date is set | O 11 r 29(b) | Consent of all appearing, or leave |
| Applicant withdrawing after a hearing date is set | O 11 r 29(c) | Leave |
| Respondent withdrawing an appearance | O 11 r 31 | No — subject to costs |
| Lawyer ceasing to act | O 11 r 6 | No — but the notice must be filed |
| Referrer withdrawing a s 26 reference | O 9 r 6 | No before hearing; leave after |
An appeal is discontinued under Order 7 Rule 20 — at any time, without leave, on filing. An application is withdrawn under Order 11 Rule 29, where leave becomes necessary as the matter progresses.
Where a proceeding is both — an appeal with an application for leave, or an appeal and a cross-appeal — deal with each expressly rather than assuming one document ends everything.
Withdrawing a reference
Constitutional matters. Order 4 Rule 10 allows the applicant or referrer to amend if no party has intervened, without leave before hearing, or with leave after commencement of hearing but before the court has given its opinion; and if a party has intervened, with leave.
Section 26 references. Order 9 Rule 6: the Principal Legal Adviser may withdraw or amend the reference by notice (a) before hearing without leave; or (b) after commencement of hearing but before the court delivers its opinion, with leave. The notice shall be in accordance with Form 14, filed in the registry, and served in accordance with Order 9 Division 2.
Sources
- Supreme Court Rules 2012 — O 4 rr 10–12; O 7 rr 20–23, 48; O 9 rr 6, 7; O 11 rr 2, 5–7, 29–31; O 12 rr 8, 22; O 13 rr 8, 12; Form 14
- Supreme Court Act (Chapter 37) — ss 26, 31
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.