THE TURKS & CAICOS ISLANDS Law and Practice Contributed by: Stephen Wilson KC, Dominique Gardiner and Lovelie Luxama, Wilson Wells
10.6 Powers of the Appellate Court After an Appeal Hearing In the case of an appeal to the Supreme Court from an inferior court, tribunal or person, the court may give any judgment or decision or make any order that ought to have been made by the court, tribunal or person, and may make such further or other order as the case may require, or may remit the matter with the opinion of the court for rehearing and determina- tion by it. The Court of Appeal has jurisdiction to determine appeals against any judgment or order of the Supreme Court given or made in civil proceedings, or to order a new trial if the court thinks fit. For all purposes of and incidental to the hearing and determination of any such appeal and the amendment, execution and enforcement of any judgment or order made thereon, the Court of Appeal shall – subject as aforesaid – have all the powers, authority and jurisdiction of the Supreme Court. The Court of Appeal shall not alter or reverse a judgment or order of the Supreme Court in any case in which the court is satisfied that the effect of the judgment or order is to effect substantial justice between the parties. The relevant appellate court may also, at the time of its decision, make any orders relating to the payment of costs and interest that may have the effect of revers- ing any previous orders made in the course of the litigation. 11. Costs 11.1 Responsibility for Paying the Costs of Litigation The party seeking to bring a claim, make an applica- tion within an action, or file any affidavit to be used as evidence therein is required to pay the applicable court fee. As parties progress through litigation, each party normally pays its own expenses and attorney’s fees. Interlocutory orders may be made during the litigation that order one party or another to pay the other party’s costs associated with the interlocutory application. However, unless the order is made with terms that
the party against whom costs were ordered must pay them “forthwith” (allowing them to seek taxation of the costs then rather than wait until judgment has been issued in the action), the usual order is to preserve the status quo until the end of the litigation. As stated in 4.6 Costs of Interim Applications/ Motions , the usual rule regarding costs is that they follow the event. Costs are usually awarded on the “standard” basis, which means that – when seeking to recover those costs – the party in whose favour the costs award is made must show that the costs claimed were reasonably incurred. Unless the amount of costs to be recovered by the successful party can be agreed with the other party, the party to litigation in the Supreme Court seeking to recover its costs must apply to the court for what is known as “taxation” – essentially a court assessment of the costs claimed. That process allows the paying party to challenge the costs sought to be recovered. In limited circumstances, a party may be ordered to pay costs to be taxed on the indemnity basis. This means the burden of proof moves to the paying party to show that costs claimed were unreasonably incurred. An order for indemnity costs usually allows the beneficiary of such an order to recover close to the full amount expended. 11.2 Factors Considered When Awarding Costs The starting point is that costs follow the event (ie, the winner is normally awarded their costs). However, the court always retains discretion. There are many factors on which a judge can exercise their discretion so as not to give the winner their costs, including: • whether the overall winner won on every issue or lost on some; • the way in which the successful party conducted itself; and • whether the losing party had made any payment into court or settlement offer prior to (or during) the litigation.
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