1
ANGUILLA
IN THE COURT OF APPEAL
MAGISTERIAL CIVIL APPEAL NO. 7 OF 2002
BETWEEN:
CAROLINE DAVIES
Appellant
and
MAUNDAYS BAY MANAGEMENT LIMITED
Respondent
Before:
The Hon. Mr. Adrian D. Saunders Justice of Appeal

On written submissions:

2003: June 25;
October 20.

JUDGMENT
[1] SAUNDERS, J.A.: 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
[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 the appellant’s response to it. Given that this matter is being
dealt with only on paper, I prefer to decide it on the substantive issue because I
consider that in any event this appeal should fail.
[4] The learned Magistrate in his reasons for his decision stated that he denied the
application for costs on three different grounds. First of all he stated that although
counsel for Mrs. Davies succeeded in having MBM’s claim dismissed, the
dismissal was not grounded upon the arguments advanced by counsel. Secondly,
the Magistrate hinted that the matter of any costs thrown away could be addressed
in the extant High Court proceedings. Thirdly, the Magistrate said that there was
no bad faith on the part of MBM in bringing the claim.
[5] I cannot agree that in declining to make an order for costs, what the learned
Magistrate did was unreasonable or arbitrary. Nor can it be said that the 3
Magistrate failed to exercise his discretion. From an examination of the reasons for
his decision the Magistrate clearly weighed in his mind the matter of whether or
not to award costs. He declined so to do. I entirely disagree with the view of
counsel for Mrs. Davies’ that, in choosing not to award costs, the Magistrate did
what “no reasonable Magistrate properly directing himself in law would have
done”. Another Magistrate may have come to a different conclusion. It is well
established law however that the function of an appellate tribunal is not to
substitute its own discretion for that of the court below. See: Eagil Trust v
Piggott-Brown (1985) 3 A.E.R. 120.
[6] In all the circumstances, if at all there is a valid appeal before this court, I would
dismiss it with costs to the respondent. I hope that the parties can resolve all the
outstanding issues between them in the extant proceedings in the High Court.
[7] On the matter of costs in this court, I must confess to some difficulty in quantifying
the proper amount. I have been unable to discern the amount that was claimed by
MBM in the Magistrate’s court. Given that this matter was dealt with on paper and
it is an appeal from a Magisterial action, I would order the appellant to pay the
costs of this appeal which I fix in the sum of EC$750.00.
Adrian Saunders
Justice of Appeal