Braeden Fowler (an Infant) by Bridgette Sawyer v Dr. Horizal A. Simmons

• Jurisdiction: Bahamas
• Judge: Madam Justice Crane-Scott, JA
• Judgment Date: 23 September 2024
• Neutral Citation: BS 2024 CA 118
• Docket Number: SCCivApp. No. 4 of 2023
• Court: Court of Appeal (Bahamas)

Between

Braeden Fowler (an infant) by Bridgette Sawyer

(his mother and next friend)

First Applicant/Appellant

and

Bridgette Sawyer

Second Applicant/Appellant

and

Dr. Horizal A. Simmons

First Respondent

and

Eileen McClain

Second Respondent

and

Doctor's Hospital Health System Limited

Third Respondent

and

The Attorney-General

Amicus Curiae

Before:

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Evans, JA

The Honourable Mr. Justice Turner, JA

SCCivApp. No. 4 of 2023

IN THE COURT OF APPEAL

Civil Appeal — Award of Costs following unsuccessful application for Conditional leave to appeal to the Privy Council — Costs — Usual rule — Costs follow the event — Rule 24(5) of the Court of Appeal Rules — Order 59 Rule 3 of the Rules of the Supreme Court

On 30 July 2024, after hearing the Appellants' conditional leave application, the Court of Appeal dismissed the application and subsequently provided its written Reasons for Decision on 8 August 2024.

In its written Decision of 8 August 2024, the Court indicated that the costs of the conditional leave application would be dealt with “on the papers” and the parties were directed to file written submissions on the costs issue on or before 23 August 2024.

The Appellants filed no submissions on costs. None were filed on behalf of the First Respondent either. Written costs submissions relative to the conditional leave application were, however, received from the Second and Third Respondents on 23 August 2024.

Held: The Appellants (as the unsuccessful parties on the conditional leave application) shall bear the Second and Third Respondents' costs of and occasioned by the application to be taxed, if not agreed.

Having unjustifiably brought the Respondents before the Court on what was a premature and wholly misguided application for conditional leave, the Appellants took an obvious risk that, if leave were refused, costs might be awarded against them under the usual rule unless ‘it appeared to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.’

Having considered section 24(5) of the Court of Appeal Rules, 2005; Order 59 rule 3(2) of the Rules of the Supreme Court 1978, together with the established principles governing the award of costs, we are satisfied that no departure from the usual rule that “costs follow the event” is warranted in this case.

Paul F. Major v. First Caribbean International Bank (Bahamas) Limited SCCivApp. No. 77 of 21 mentioned

Polymers International Company Ltd v. Philip Hepburn SCCivApp. No. 8 of 2021 mentioned

Rawson McDonald v. Rawson McDonald & Company and another SCCivApp. No. 94 of 2017 considered

Rubis Bahamas Ltd v. Lilian Antoinette Russell (Conditional Leave) SCCivApp. No. 86 of 2022 mentioned

Scherer and another v. Counting Instruments Ltd and another [1986] 2 All ER 529 applied

SkyBahamas Airlines v. Southern Air Charter Company Limited SCCivApp. No. 221 of 2021 mentioned

Sterling Asset Management Ltd v. Sunset Equities Ltd SCCivApp. No. 152 of 2021 mentioned

Swart et al v. Appollon Metaxides and Silver Point Condominium SCCivApp. No. 78 of 2012 (delivered on 22 October 2018) mentioned

APPEARANCES:

Mrs. Bridgette Sawyer appearing pro se for both Applicants/ Appellants

Dr. Glendon Rolle for the First Respondent

Mr. Adrian Hunt for the Second and Third Respondents

Ms. Olivia Nixon with Ms. Nyanne Orlander of the Office of the Attorney General appearing Amicus Curiae

DECISION ON COSTS (Conditional leave)

Madam Justice Crane-Scott, JA

Judgment delivered by The Honourable

Introduction and Background

1 . This is the latest in a series of interlocutory decisions delivered in the course of proceedings relating to an appeal from a decision from the Supreme Court that has not yet been substantively heard in the Court of Appeal.

2 . As appears from our Oral judgment posted on the Court of Appeal's website on 25 March 2024 1, this Court (similarly constituted) acceded to the Appellants' uncontested extension of time application (“EOT application”) and ordered the Appellants to file their intended Notice of Appeal with the Court on or before 8 April 2024 (the “EOT Order”).

3 . The grant to the Appellants of an extension of time to appeal effectively triggered the settling of the record procedures in the Court of Appeal Rules, 2005 which are designed to prepare a civil appeal for substantive hearing before the Court. 2 Costs of and incidental to the Appellants' EOT application were subsequently awarded to the Respondents in our written Costs Ruling published on 29 May 2024. 3

4 . Dissatisfied that the merits of their EOT application had not been contested by the Respondents; and further, had not proceeded to a substantive hearing before the Court, the Appellants filed a Notice of Motion on 15 April 2024 for conditional leave seeking numerous orders and

declarations, including an Order for conditional leave to appeal the EOT Order to His Majesty in Council on the basis that the EOT Order was “irregular and deficient 4.”

5 . After hearing the Appellants' conditional leave application on 30 July 2024, the Court of Appeal dismissed the application 5 and undertook to provide written reasons at a later date. The Court subsequently provided its detailed written decision (“Reasons for Decision (Refusal of Conditional Leave)”) on 8 August 2024. 6

6 . The parties were advised that the costs of the conditional leave application would be dealt with “on the papers”; and further directed the parties to file written submissions on the costs issue on or before 23 August 2024.

7 . The Appellants filed no submissions on costs. None were filed on behalf of the First Respondent either. Written costs submissions relative to the conditional leave application were, however, received from the Second and Third Respondents on 23 August 2024.

8 . At paragraph 17 of their submissions the Second and Third Respondents submitted:

“17. In all respects, the Leave Application was entirely misconceived and ought not to have been pursued. By doing so, the Appellants pointlessly engaged judicial resources in challenging: (i) a process they had willingly invoked; and (ii) a result, in the EOT Decision, which they not only requested but needed in order to advance their grounds of challenge against the Ruling. The Respondents were therefore needlessly made to incur costs in opposing the Leave Application. In the premises, it is submitted that no departure from the usual costs order is warranted, and instead the Appellants should be made to pay the Respondents' costs of and occasioned by the Leave Application to be taxed if not agreed.” [Emphasis added]

9 . What follows is our written Decision relative to the award of costs of the Appellants' unsuccessful conditional leave application.

The Governing Rules

10 . The general power of the Court of Appeal to award costs is conferred by section 24(5) of the Court of Appeal Rules, 2005. As this Court has repeatedly explained when determining by whom, and to what extent costs are to be paid, the Court of Appeal generally has regard to relevant rules of court and to the practice that obtains in the Supreme Court. In this regard see for example: Swart et al v. Appollon Metaxides and Silver Point Condominium SCCivApp. No. 78 of 2012 (delivered on 22 October 2018) (paras [7]–[8]) per Isaacs JA.; Rawson McDonald v. Rawson McDonald & Company and another SCCivApp. No. 94 of 2017 (paras [4]–[11]) per Crane-Scott, JA.; and Rubis Bahamas Ltd v. Lilian Antoinette Russell SCCivApp. No. 86 of 2022. 7

11 . As we have already determined, 8 by virtue of the savings and transitional provisions of the ‘new’ Supreme Court Civil Proceedings Rules, (“ CPR 2022”) notwithstanding the repeal of the ‘former” Rules of the Supreme Court (“RSC 1978”), the RSC 1978 continue to govern these proceedings since the action was filed in the Supreme Court before the date of commencement of the CPR, 2022.

12 . In exercising our costs discretion in this matter, we have necessarily had regard to the usual rule contained in Order 59 rule 3(2) RSC 1978 governing the award of costs. The rule provides:

“When costs to follow the event

• 3(1) …

• (2) If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any proceedings, the Court shall, subject to this Order, order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should...