Davies v Maundays Bay Management Ltd

• Jurisdiction: Anguilla
• Judge: Saunders, J.A.
• Judgment Date: 20 October 2003
• Neutral Citation: AI 2003 CA 3
• Docket Number: No. 7 of 2002
• Date: 20 October 2003
• Court: Court of Appeal (Anguilla)

Court of Appeal

Saunders, J.A.

No. 7 of 2002

Davies

and

Maundays Bay Management Limited

Practice and Procedure - Costs — Refusal to make award of costs — Whether there is appeal before the court in absence of order granting leave to appeal — Whether refusal to make award of costs was unreasonable or arbitrary.

Saunders, J.A.

1 On the 29th August, 2002 the learned Magistrate dismissed a civil complaint filed by Maundays Bay Management Limited (MBM) against Ms. Davies. At the hearing, counsel for Ms. Davies had objected to the prosecution of the claim on the ground that it was frivolous and vexatious. After listening to counsel the magistrate refused to entertain the claim on the ground that it raised issues that were then before the High Court in other proceedings between the same parties. The magistrate accordingly dismissed the claim but declined to make any order as to costs against MBM. Ms. Davies is aggrieved about the refusal to make an award of costs in her favour. She has accordingly appealed to the court of appeal on the ground that the learned magistrate's decision “is unreasonable and cannot be supported having regard to the evidence”. The court has directed that the appeal be heard by a single judge of the court on the written submissions of counsel.

2 In their written submissions, counsel for MBM raised a number of preliminary points. Counsel submitted that Ms. Davies ought first to have obtained leave to appeal as this was an appeal only against the discretionary exercise of a costs order. The procedure in the magistrate's court is governed by the Magistrate's Code of Procedure Act (MCPA). An appeal solely on costs is not specifically provided for in the MCPA. Counsel submits that such an appeal is possible only because section 177 of the Act provides that in all matters of procedure not covered by the Act the procedure applicable to the High Court shall apply. Section 29 of the Eastern Caribbean Supreme Court (Anguilla) Act deals, inter alia, with the circumstances of a litigant who seeks to appeal only in respect of an order on costs. Where such costs fall within the discretion of the court, then such an appellant must first seek leave. Counsel suggests that in the absence of an order granting leave to appeal, there is no appeal before this court and the same should be struck out.

3 This is an attractive argument with which I am inclined to agree but I would have liked to have seen...