Rawson McDonald v Paul R Major

• Jurisdiction: Bahamas
• Judge: Madam Justice Crane-Scott, JA
• Judgment Date: 08 March 2023
• Neutral Citation: BS 2023 CA 33
• Docket Number: SCCivApp No. 94 of 2017
• Court: Court of Appeal (Bahamas)

Between

Rawson McDonald

First Applicant/Appellant

and

Rawson McDonald & Company

Second Applicant/Appellant

and

Paul R. Major

Respondent

Before:

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr Justice Jones, JA

The Honourable Sir Brian Moree, JA

SCCivApp No. 94 of 2017

IN THE COURT OF APPEAL

Civil Appeal — Costs — Rule 24(5) Court of Appeal Rules, 2005 — Exercise of discretion to award costs — Order 59, r. 3 Rules of the Supreme Court — Usual rule — Costs to follow the event — Applicant to bear costs of and occasioned by an application to extend time — Principles guiding exercise of discretion to dispense with application of usual costs rule — Costs in the cause

The Applicants/Appellants (now referred to as “the Applicants”) filed an appeal against the Judgment of a Supreme Court judge who found them liable to the Respondent in breach of contract. The appeal was subsequently struck-out for non-compliance with the Registrar's Settling Orders in relation to the filing of the record of appeal. They applied to the Court to restore the appeal and for an extension of time for filing the record of appeal. Both applications were granted by the Court in a written Decision handed down on 31 October 2022. The Court invited written submissions on costs to be filed within 14 days and indicated that the issue of costs would be dealt with on the papers.

Held: In the exercise of its wide discretion to award costs, the Court makes the following orders: (i) Costs of the restoration application shall be costs in the cause; and (ii) the Applicants shall bear the Respondent's costs in relation to the application to extend the time, such costs to be taxed, if not agreed.

The jurisdiction in relation to costs in the Court of Appeal derives from rule 24(5) of the Court of Appeal Rules, 2005. However, the considerations applicable to the exercise of this Court's discretion to grant costs are guided by Order 59 of the Rules of the Supreme Court (now referred to as “the RSC”).

The general rule enshrined in Order 59, r. 3(2) of the RSC is that costs should “follow the event, except when it appears 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.”

As for the costs of and incidental to an extension of time application, the rule in Order 59 r. 3(4) of the RSC is that such costs “shall be borne by the party making the application, unless the Court otherwise orders.”

However, a successful litigant's reasonable expectation of obtaining an order for costs in keeping with the rule, still depends on the exercise of the Court's discretion. Appropriate circumstances may warrant departing from the usual rule. The Court must exercise its discretion judicially by considering the facts of the case, including any matter related to the parties' conduct and the circumstances leading to the proceedings. The Court must ultimately consider whether there are any grounds to properly exercise its discretion so as to order a party who is successful in a matter to pay the costs of the party who failed.

Having given this matter our anxious consideration, we agree with counsel for the Respondent that in the particular circumstances of this case, justice between the parties to this case will be served by dispensing with the usual rule in O.59, r. 3(2) and instead making an order that the costs of the restoration application shall be “costs in the cause”.

Having also considered the appropriate costs order on the extension of time application, we have found no reason to depart from the rule governing the award of costs in such applications which is set out in O. 59, r. 3(4). In the result, the Applicants shall bear the Respondent's costs of the extension of time application, such costs to be taxed, if not agreed.

Cable Bahamas Limited v. Rubis Bahamas Limited and another [2017] 1 BHS J. No. 143; mentioned

Elizabeth Collie v. Lady Henrietta St. George SCCivApp. No. 133 of 2021; mentioned

Gaydamak and Another v. USB Bahamas and another [2006] UKPC 8; distinguished

Keithrell Hanna v. Wendy Willis Johnson SCCivApp. No. 61 of 2022; mentioned

Kelly v. Albury [1998] BHS J. No. 64; mentioned

Navette Broadcasting & Entertainment Co Ltd v. Utilities Regulation & Competition Authority SCCivApp. No. 117 of 2019; mentioned

Polymers International Limited v. Philip Hepburn SCCivApp. No. 8 of 2021; mentioned

Ritter v. Godfrey [1920] 2 K.B. 47; mentioned

Rosina Smith v. Fidelity Bank (Bahamas) Ltd SCCivApp. No. 94 of 2021; mentioned

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

SkyBahamas Airlines Limited 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 Silver Point Condominium SCCivApp. No. 78 of 2012; considered

Wolsey and others v. Bahamas Electricity Corporation [2012] 1 BHS J. No. 86; mentioned

APPEARANCES:

Mr Charles Mackay for the Applicants/Appellants

Mrs Hope Strachan for the Respondent

DECISION ON COSTS

Madam Justice Crane-Scott, JA

Delivered by the Honourable

Background

1 In a written Decision handed down on 31 October 2022, this Court (similarly constituted) acceded to the Applicants' two interlocutory applications contained in their Amended Motion of 15 September 2022. In acceding to the Amended Motion, we firstly restored the Applicants' liability appeal which had been struck-out for non-compliance with the Registrar's Settling Order in relation to the filing of the record of appeal and, secondly, extended the time for filing the record of appeal.

2 We invited the parties to file written submissions on costs within 14 days and indicated then that the issue of costs would be dealt with on the papers.

3 What follows is our written decision in relation to the outstanding issue of the costs of both applications.

The Governing Rules

4 As is well known, this Court's broad jurisdiction in relation to the award of costs is located in rule 24(5) of the Court of Appeal Rules, 2005 (now referred to as “the COA Rules”)., which provides:

“24. (5) The court may make such order as to the whole or any part of the costs of an appeal as may be just, and may, in special circumstances, order that such security shall be given for the costs of an appeal as may be just.”

5 Notwithstanding rule 24(5), in the exercise of its discretion, the Court generally has regard to the practice that obtains in the Supreme Court and to the rules governing the discretion to award costs located in Order 59 of the Rules of the Supreme Court (now referred to as “the RSC”). This was explained in a decision of the Court of Appeal in Swart et al v. Appollon Metaxides Silver Point Condominium, SCCivApp. No. 78 of 2012 (delivered on 22 October 2018).

6 At paragraphs [7] and [8] Isaacs JA, writing on behalf of the Court (differently constituted), explained:

• “7. In the Supreme Court the issue of who should bear the costs of an action and/or application falls to be considered in light of Order 59 of the Rules of the Supreme Court. Moreover, section 30(1) of the Supreme Court Act provides:

  “30. (1) Subject to this or any other Act and to rules of court, the costs of and incidental to all proceedings in the Court, including the administration of estates and trusts, shall be in the discretion of the Court or judge and the Court or judge shall have full power to determine by whom and to what extent the costs are to be paid.”

• 8. We generally have regard to the practice that obtains in the Supreme Court. In my view this makes estimably good sense.”

  [Emphasis added]

7 The starting point is Order 59, r. 3(1) which provides that subject to the Order, “no party shall be entitled to recover any costs of or incidental to any proceedings from any other party to the proceedings except under an order of the Court.”

8 The practice of the Court is that Order 59 applies mutatis mutandis to an award of costs to be made following the disposition of a substantive appeal, as well as to cost orders of, and incidental to, an interlocutory application heard and disposed of during appellate proceedings.

9 The usual rule is located in Order 59, r. 3(2) which provides that where a Court considers that it should make any order as to the ‘costs of or incidental to any proceedings’, such costs are “to follow the event” unless the Court is satisfied that, in the circumstances of the case, “some other order” should be made. O. 59, r. 3(2) states:

“(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 be made as to the whole or any part of the costs.” [Emphasis added]

10 The usual rule that “costs follow the event” is applied in numerous decisions of the Court. [See for example the decisions in SkyBahamas Airlines v. Southern Air Charter Company Limited SCCivApp. No. 221 of 2021 delivered on 2 December 2021 per Evans JA., at para [9]; Polymers International Company Limited SCCivApp. No. 8 of 2021 delivered on 23 February 2022 per Barnett P., at paras [5] and [6]; and Sterling Asset Management Ltd v. Sunset Equities Ltd SCCivApp. No. 152 of 2021 delivered on 24 March 2022 per Barnett P., at paras [5]–[8] to name only a few.]

11 As Order 59 provides, the usual rule that costs “follow the event”, does not apply to “costs of and occasioned by extension of time applications.” In such applications, the relevant rule (located in O. 59, r. 3(4)) is that such costs “ shall be borne by the party making the application, unless the Court otherwise orders.” O. 59, r. 3(4) states:

“3(4) The costs of and...