The appeal book is usually the largest single disbursement in a Supreme Court appeal. Who ultimately bears it depends on the outcome and on how carefully the book was assembled.
Order 7 Rule 45
Subject to s 29 of the Act the costs of the appeal book are costs in the appeal unless the court otherwise orders.
The cost of preparing the book is not a separate item to be argued about at the end. It goes into the pool of the appeal costs and follows the costs order.
So an appellant who succeeds and obtains costs recovers the cost of the book from the respondent, subject to taxation. An appellant who fails and is ordered to pay costs bears their own book and contributes to the respondent’s costs of the appeal.
Order 12 Rule 24 makes the same point generally: the costs of any application or other step in any proceedings shall, unless the Court or a Judge otherwise orders, be deemed to be part of the costs of the party in whose favour the application or other step is determined.
Order 7 Rule 46
The costs of copies of unnecessary documents or of documents copied at unnecessary length shall not be allowed.
This bites on taxation. A successful appellant whose book contained 200 pages of irrelevant material recovers the cost of the rest and pays for those 200 pages.
Only such documents as are relevant or necessary shall be included in the appeal book.
The two rules work together: Rule 43(12) states the standard, Rule 46 enforces it in money. The Registrar applies the standard at settlement under Rule 42(a); the taxing officer applies it again afterwards.
See what goes in.
Six ways to reduce the bill
1. Work from the grounds. For each document, name the ground it goes to. If you cannot, it is not necessary.
2. Extract long exhibits. Rule 46 refers to documents copied at unnecessary length. Where five pages of a 200-page report matter, include those five and identify the whole.
3. Use Rule 43(6) and (7). Back-sheets, formal headings, jurats and formal identification of exhibits are excluded; interrogatories, answers and affidavits of documents are excluded except so far as put in evidence.
4. Do not copy what need not be copied. Rule 43(4) contemplates documents listed in the index but not copied; Rule 32 allows a physical exhibit to be made available at the court instead.
5. Settle disputes at the settlement. A document the respondent insists on and the Registrar includes over your objection is not your risk in the same way.
6. Print one proof first. Rule 43(9) requires examination against the originals. Finding the error in copy one is cheaper than in copy eight.
The respondent’s exposure
A respondent who requests documents under Rule 29(c), or presses for inclusions at the settlement, is adding to a book they may end up paying for if the appeal succeeds.
Conversely, a respondent who objects to a bloated index and is overruled has laid the ground for a Rule 46 argument on taxation: the objection is on the record.
Where the appellant proposes an obviously excessive book, say so in writing before the settlement. It costs nothing and may save a great deal.
Where the appeal is dismissed
The appellant bears the cost of preparing the book, which was funded up front and is not recovered.
And costs will ordinarily be ordered in the respondent’s favour, covering the respondent’s costs of the appeal — including the work of examining the book under Rule 43(9) and certifying it under Rule 43(10).
Where the appeal is discontinued, Order 7 Rule 22 makes the discontinuing party liable, except in criminal appeals, for the costs of the other party or parties occasioned by his appeal, and Rule 23 allows those costs to be taxed and, if unpaid within 14 days after service of the certificate of taxation, entered as a judgment.
That is a reason to decide early whether an appeal is worth pursuing: the appeal book is the point at which the cost becomes substantial, and a discontinuance before it is prepared is far cheaper than one after.
A different regime
Section 31(1) of the Supreme Court Act provides that on the hearing and determination of an appeal, no costs shall be allowed to either side in criminal proceedings, and section 31(2) provides for certain expenses — witnesses attending on the order of the Court, the appearance of an appellant when in custody, and examinations or references — to be paid out of the Consolidated Revenue Fund to an amount allowed by the Court.
Order 7 Rule 22 likewise excludes criminal appeals from the costs liability on discontinuance.
Where an appellant in a criminal matter is assisted by the Public Solicitor, the practical burden of the book falls on that office. Order 7 Rule 62 requires the Duty Judge to inquire whether an appellant in criminal proceedings has a lawyer and, if not, to direct the Registrar to notify the Office of the Public Solicitor.
Where the State is involved
Order 12 makes particular provision for costs where a party is represented by a lawyer employed or engaged by the State. Where the State is the respondent to a civil appeal, that affects how costs are assessed, though not who assembles the book.
See costs of an appeal and taxation.
Sources
- Supreme Court Rules 2012 — O 7 rr 22, 29, 32, 42–46, 62; O 12 rr 24, Div 3
- Supreme Court Act (Chapter 37) — ss 29, 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.