RECOVERY OF COSTS OBTAINED WITHOUT THE ORDER OF THE COURT, IN LIGHT OF WITHDRAWING OR DISCONTINUING AN ACTION IN COURT

The court is enjoined by law to encourage the resolution of disputes through alternative means other than litigation. Therefore, what power has the court to force a party who wishes to discontinue or withdraw an action to keep litigating? However, the rules of court prescribe the manner in which such discontinuance or withdrawal of actions ought to be done so that sanity would still be maintained. Furthermore in order to deter litigants from initiating frivolous actions thereby abusing the court process, the law confers on the innocent party the right to obtain costs from the party seeking to withdraw , even without any court order.

In this rather short exposition, the circumstances, as well as the times within which an action can be withdrawn or discontinued will be stressed upon, and of course the consequences (being the award of cost) of taking such steps would also be brought to light.   

Order 17 rule 2 of the High Court Civil Procedure Rules, 2004 (CI 47) provides as follows:

1. Except in the case of an interlocutory application, the plaintiff may at any time before service on the plaintiff of the defendant’s defence or after the service of it and before taking other proceeding in the action, by notice in writing wholly discontinue the action against all or any of the defendants or withdraw any part of the alleged cause of action and thereupon the plaintiff shall pay the defendant’s costs of the action or if the action is not wholly discontinued, the costs occasioned by the withdrawal.
2. Such costs shall be taxed, and the discontinuance or withdrawal shall not be a defence to any subsequent action.
3. Except as otherwise provided in this rule, the plaintiff shall not be untitled to withdraw the record or discontinue the action without leave of the court, but the Court may before, during or after the hearing or trial upon such terms as to costs and as to any other action as may be just, order the action to be discontinued or any part of the alleged cause of action to be struck out.

Order 74 rule 4 sub-rule 2 and 3 of CI 47 provides as follows:

(2) Where a plaintiff by notice in writing and without leave either wholly discontinues an action against any defendant or withdraws any particular claim made by the plaintiff against any defendant, the defendant shall be entitled, without an order of the Court, to costs of the action or costs occasioned by the matter withdrawn.

(3) Where a defendant by notice in writing and without leave discontinues a counterclaim against any party or withdraws any particular claim made by the defendant against any party, that party shall be entitled, without an order of the Court, to costs of the counterclaim or costs occasioned by the claim withdrawn, incurred up to the time of receipt of the notice of discontinuance or withdrawal.

HOW DOES A PARTY ENTITLED TO COST WITHOUT AN ORDER OBTAIN SUCH COSTS

The rules have defined instances where a party may recover costs without a court order, and the party so entitled may apply for assessment of the recoverable amount which if not paid within seven days, would entitle the party to sign judgment for the amount. This is provided for in Order 74 rule 8 of the CI 47.        

Signing judgment for the amount implies that the assessed costs may be treated as a judgment. Hence the party entitled to such costs may go through the appropriate processes to enter the judgment as is stipulated in Order 42(7) of the CI 47.

In any case Order 74 rule 11 of CI 47 provides as follows:

1. Where the amount of any costs has been assessed by the Court, payment of that amount may, subject to sub rule (2) be enforced in the same manner as a judgment or order for the payment of money.
2. No steps shall be taken to enforce the payment of costs until seven days after the date on which the amount of those costs is assessed by the Court or where an application for review is made under rule 12, until that application is determined.

The above clearly indicates that any one or more of the means employed in recovering payment of money such as the writ of fiery facias, garnishee proceedings, charging orders, appointment of a receiver, etc. may be adopted to recover costs from the party against whom the costs have been awarded.

A Party, who is aggrieved by the assessment of costs by the court on the ground that the amount assessed in favour of that party is inadequate; or the amount assessed against that party is excessive, may within fourteen days after the date of such assessment, apply to the Court to review its decision. This is provided for in Order 74 rule 12 of the CI 47.

It may be surmised from the discussion had, that costs may be treated as an order or judgment of the court such that an aggrieved person has an avenue within which to seek redress