Adlem v Arlow

The matter arose from an appeal to the Supreme Court of Appeal (SCA) from the North West High Court, Mafikeng. The SCA had previously upheld the appeal on the merits and issued a provisional order relating to the costs in the High Court, granting leave to either party to make submissions on that provisional costs order. The appellants sought confirmation of the costs order in their favour, while the respondent opposed it, arguing that the outcome on the substantive legal question would have adverse consequences for both parties’ claims and counterclaims in the High Court proceedings.

The provisional costs order was confirmed. The respondent was ordered to pay the appellants’ costs occasioned by the argument to vary the costs order.

The case clarifies the limited scope of appellate cost orders, particularly where an appellate court decides a discrete legal issue and grants leave for submissions on costs. It reinforces the principle that costs relating to a specific argument are distinct from the costs of the proceedings as a whole, which may remain for determination by the court of first instance.