IN THE COURT OF APPEAL

OF TURKS AND CAICOS ISLANDS

Case number: CL 30A/07

BETWEEN

THE GOVERNMENT OF TURKS AND CAICOS ISLANDS

AND

THE CROWN

Applicants

AND

CYRIL ARCHIBOLD CAPRON

Respondent

D Ramdhani for respondents/applicants

J Rutley for appellant/respondent

Hearing: 7 December 2007

Ruling: 11 December2007

Ruling

The applicants were the successful party in a case heard by Martin AC J in the Supreme Court but the learned trial judge awarded costs against them on an indemnity basis. The plaintiff has filed notice of appeal against the substantive judgment and the defendants now seek leave to appeal the costs order. Mr Ramdhani, for the applicants, contends that he has applied in time but, in the light of a challenge by the plaintiff, also seeks leave to appeal out of time ex abundanti cautela.

The respondent opposes both applications.

An appeal against an order for costs will only lie if the Supreme Court or the Court of Appeal has given leave under section 5 (e) of the Court of Appeal Act. By section 19(1) (a), the power to extend time may be exercised by a single Judge of Appeal but, in addition, section 20 provides that, when there is no Judge of Appeal present in the Islands, the power may be exercised by a judge of the Supreme Court.

Leave to appeal out of time

The judgment on costs was made on 25 October 2007 and the present applicants filed notice of appeal on 26 November 2007. Mr Rutley, for the respondents, relies on the provisions of section 15 (1) of the Act to demonstrate that the appeal is out of time:

“15. (1) In the case of an appeal from any judgment, decree or order of the Supreme Court in the exercise of its civil jurisdiction, the appeal shall be brought by the appellant giving notice in writing, within twenty-eight days of the judgment, decree or order from which the appeal is made ...”

However, by rule 4 (1) of the Court of Appeal (Practice and Procedure) Rules 1975, the Court of Appeal Rules of the Bahama Islands shall apply mutatis mutandis to appeals in this jurisdiction. Rule 13 of those Rules provides:

“13. Every notice of appeal shall be filed ... within the following periods ... that is to say:-

(a)           in the case of an appeal from an interlocutory order, fourteen days;

(b)           in any other case, six weeks.”

The rules of statutory interpretation provide that, when such a conflict arises, the statutory provision will prevail over a conflicting provision in subsidiary legislation made under the Act. On that basis, this notice was filed out of time. However, I accept the applicants were misled by the Rules and, noting the short period the notice was out of time, I grant leave to appeal out of time.

Leave to appeal

The trial judge has a wide discretion over the award of costs and an appellate court will be reluctant to interfere unless he has clearly erred in principle or the decision is so unreasonable that a reasonable tribunal could not have made it. An award of costs may be made against the successful party but only in exceptional circumstances. An award of indemnity costs will only be appropriate in any case where the judge is satisfied the successful party’s conduct had been unconscionable. There can be little doubt from his judgment that Martin ACJ took the view the applicant had behaved in such a manner. In those circumstances, Mr Rutley suggests the appeal cannot succeed and so, to grant leave would be little more than an exercise in futility.

In support of the application, Mr Ramdhani has sought to raise a number of arguments that will no doubt be pressed before the Court should leave be granted. It is not for me to determine those issues save to the extent that they may raise an arguable ground of appeal. The question for the Court, at this stage is whether the appeal raises a question of sufficient significance to justify the grant of leave.

Martin ACJ described this as “an exceptional case where the successful defendant should be made to pay the plaintiff's costs”. His order that they be on an indemnity basis was made because of “the manner in which this whole matter has been conducted” and his earlier comments show that the phrase “the whole manner” was a reference to the actions of the defendants over a long period of time and not simply their conduct of the proceedings in court.

Despite the Court’s reluctance to interfere with the judge’s discretion, this was a sufficiently unusual order for the applicants to be given an opportunity to take it on appeal. It is a matter upon which the Court may also consider it appropriate to give some guidance. In addition, the respondents have appealed the principal finding of the learned judge and it may create a somewhat artificial situation if the Court should be precluded from passing on to consider the costs aspect of the case. If it is to be considered, the Court is entitled to expect properly researched and presented submissions which can now be prepared.

The application is granted.

Leave to appeal the costs order and to appeal out of time. Notice and grounds of appeal to be filed within 3 days.

No order for costs.

11 December 2007

Gordon Ward

Acting Chief Justice