LEGAL EXPENSE TO INSTITUTE OR DEFEND LEGAL PROCEEDINGS

Costs to Institute/Defend Legal Proceedings:

Magistrate’s Court Rule 27 (3) Explained

Most people are of the view that legal services and procedures are very expensive. While this is not entirely incorrect, parties can actually be in control of how much they end up paying at the end of the day.

Let us take divorce for instance, a defended divorce procedure usually accrues more fees and costs than an undefended one. This is because legal fees and costs keep on accruing whilst the parties are arguing about who should retain the kitchen tupperware or movie cartridges. This often happens as a result of the frustrations in the divorcing parties, therefore the thoughts of “cleaning the other one out” is always luring.

It is advisable for spouses who contemplate on pursuing a divorce to consider entering into a settlement agreement before or soon after summons are served on the Defendant, to cut back on legal fees and costs in the divorce proceedings.

Parties may also control legal fees and costs, by ensuring that the instructions they issue to their respective legal practitioners, are well thought out and informed. This is why it is important to consult with your legal practitioner regularly to fully comprehend the consequences of the options available, before issuing instructions to the legal practitioner. This avoids having to withdraw instructions in future, upon realisation that an alternative option ought to have been taken under the circumstances. This comes at a pinch to the pocket often times.

To discourage the withdrawal of actions and applications that would have been brought without adequate consideration by the Plaintiff or Applicant, the Magistrate’s Court Rules in Rule 27 (3) provide for parties inconvenienced by such withdrawn actions or applications to recover their costs.

Rule 27 (3)          Any party served with notice of withdrawal may within 20 days thereafter apply to the court for an order that the party so withdrawing shall pay the applicant’s costs of the action or application withdrawn, together with the costs incurred in so applying: Provided that where the plaintiff or applicant in the notice of withdrawal embodies a consent to pay the costs, such consent shall have the force of an order of court and the registrar or clerk of the court shall tax the costs on the request of the defendant. (words in bold is our own emphasis)  

Putting the above into practice, the below is what it entails:

Scenario 1

AB issues summons against CD, and CD serves and files his notice to defend. Within the prescribed time, CD serves and files his plea. Soon thereafter, AB serves his notice to withdraw the action.

In this scenario, as per Rule 24 (3) CD may ask for costs occasioned by his defending the action brought and withdrawn by AB.

Scenario 2

AB brings a Notice of Motion and Founding Affidavit in an application against CD, and CD serves and files his Notice to Oppose. Within the prescribed time, CD serves and files his answering affidavit. Soon thereafter, AB serves his notice to withdraw the application.

In this scenario, as per Rule 24 (3) CD may ask for costs occasioned by his defending the application brought and withdrawn by AB.

Scenario 3

How about when the withdrawal is not of an application or action?

AB issues combined summons against CD, and CD serves and files his notice to defend within the required 10 court days. Before CD serves his plea to AB, CD receives a notice to amend from AB, in terms of Rule 55(A). AB wishes to amend his particulars of claim. However, CD issues a written objection against AB’s notice to amend the particulars of claim. Upon careful thought later, CD withdraws his written objection, thereby leaving AB without any hurdle to effect the amendments to his particulars of claim. Under the circumstances, is AB entitled to approach the Court and ask for costs occasioned by CD’s withdrawal of his objection, in terms of Rule 27 (3)?

The short answer is, No. This is because the costs that may be recovered under Rule 27 (3) are costs incurred by the Defendant/Respondent (CD) while defending an action or application brought by AB, which action or application is subsequently withdrawn by AB. So to speak, these costs are recoverable by CD in the event that AB withdraws his action against CD.

On the other hand, and as per Rule 55(A) (9), AB will be liable for any costs occasioned to any other party due to the inconvenience caused by his amendment of the particulars of claim.

The question then is, does this leave AB without any consolation against CD, for CD’s withdrawal of his objection? Absolutely not, the next subsection may provide for this.

Rule 27 (4)          Any party may by delivery of notice abandon any specified claim, exception or defence pleaded by him or her and such notice shall be taken into consideration in taxing costs. (words in bold is our own emphasis)

Technically, CD’s written objection to AB’s notice to amend, falls within the purview of the definition of a defence as per Rule 27 (4). This is because Rule 55 (A) (3) stipulates that CD’s objection to AB’s proposed amendment shall clearly and concisely state the grounds upon which the objection is founded. Therefore, in the event that CD withdraws his objection, which is essentially abandoning his defence as per Rule 27 (4), this will be taken into consideration when costs are taxed. Therefore, it is under Rule 27 (4) that AB may ask for costs occasioned by CD’s withdrawal of his objection, as opposed to under Rule 24 (3).

In conclusion, if CD was using an attorney, it means the attorney billed him to attend to raising the objection to AB’s notice to amend, as well as attending to the withdrawal thereof. Had CD considered his options carefully, he would not have objected in the first place thereby saving him a few Rands in the pocket.

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