Newman v Smith

• Jurisdiction: Bahamas
• Judge: Blair-Kerr, P.,Duffus, J.A.,Luckhoo, J.A.
• Judgment Date: 20 March 1980
• Neutral Citation: BS 1980 CA 20
• Court: Court of Appeal (Bahamas)
• Date: 20 March 1980
• Docket Number: Civil Side No. 8 of 1979

Court of Appeal

Blair-Kerr, P.; Duffus, J.A.; Luckhoo, J.A.

Civil Side No. 8 of 1979

Newman

and

Smith

Practice and procedure - Appeals

Judgment of the Court:

1 On the 23rd May, 1978, the then Chief Justice, Sir Leonard Knowles, made an order in the following terms –

“I regret that it is impossible for me to deal with this matter before I retire, and I have no alternative but to adjourn it sine die, which I do. Since a little while may elapse, before the case is resumed, I feel that I should deal with the question of costs to date.

Mr. Thompson having borne the carriage of the case, I consider should be paid the sum of $5,000.00 out of the estate. I consider that Mr. Fountain has acted with propriety, and I order that he should be paid $3,000.00 out of the estate”.

2 The plaintiff, a minor, had sued by her next friend “for an account of the testator's estate on the footing of willful default”. The defendant, though sued in his personal capacity, was an executor and trustee of the will of the deceased, Alice Rolle, under which the plaintiff was a beneficiary. On the 23rd May, 1978, the matter came before Sir Leonard Knowles, C.J., to consider the report on the financial affairs of the estate submitted by Messrs. Price Waterhouse and Co., Chartered Accountants, and the order set out above was made. The order was never formally drawn up and filed. By a summons dated the 16th May, 1979, Mr. Thompson for the plaintiff sought to have the order set aside on the ground that he had consented to the making of the order without the specific instructions of his client. The summons the issue of which seems to have been prompted by the issue on the 11 ^th April, 1979, of a writ of fieri facias on the part of the defendant, came on for hearing before the Chief Justice, Sir James Smith.

3 In dismissing the summons the learned Chief Justice stated:

“In the present order which it is sought to have set aside all that was done was to comply with order. 62, r.6 (2) of the White Book and in so doing the former Chief Justice exercised a discretion to make an interim order as to costs. It is not for me to interfere with the discretion exercised by another member of the Supreme Court Bench as to which I apprehend as a general rule there would be no right of appeal”.

4 The learned Chief Justice observed in the course of his ruling that there was no note of a consent by Mr. Thompson to the order made on the 23rd May, 1978, in the judge's notes and it appeared that the order was made by the court on its own motion. The argument advanced by Mr. Thompson before the learned Chief Justice was that the order for costs made by the former Chief Justice was premature in that there was no adjudication of fact a upon the matters in issue before the court while Mr. Fountain for the defendant submitted that it was open to the court to make an order for costs at any stage of the proceedings.

5 As a result of the ruling by the learned Chief Justice, Mr. Thompson for the plaintiff launched an appeal which, by the amended notice of appeal filed with the leave of this Court, sought to have both the order of the 23rd May, 1978, made by the former Chief Justice and the ruling of the present Chief Justice set aside. At the conclusion of the arguments relating to the order of the former Chief Justice we allowed the appeal against that order and rescinded the order. Having made that determination we considered that no useful purpose would be served by proceeding to hear argument in relation to the ruling of the present Chief Justice. We promised to give our reasons at a later date all for allowing the appeal against the order of the former Chief Justice and to determine the question of costs of this appeal. This we now proceed to do.

6 Before dealing with the merits of the appeal reference should be made to the preliminary objection raised by Mr. Fountain to the hearing of the appeal on the ground that the order sought to be set aside related to costs only and that by virtue of the provisions of section 10(e) of the Court of Appeal Act (Cap.34) leave to appeal was required and such leave...