Bennett v Customs & Excise

Where appellate proceedings become moot because of a respondent’s concession, the court should make the just order as to the costs of the now-unnecessary hearing. It should not attempt to predict the outcome of satellite litigation if doing so would require the substantive hearing that has become moot. An existing costs order below cannot be disturbed in the absence of agreement, although it remains a relevant circumstance when deciding the costs of the appeal.

The claimant sought permission to appeal and pursued an appeal from an order of the Chancery Division, made by Mr Justice Patten, requiring him to pay £6,000 costs. The proceedings became moot following a concession by the Commissioners of Customs and Excise. The central issue before the Court of Appeal was the just order to make concerning the costs of the moot hearing and the existing costs order below.

1. Appeal rendered moot. The proceedings had become moot because of the concession made by the Commissioners. The court declined to predict with confidence the outcome of the underlying satellite litigation, since doing so would require the substantive hearing that had become unnecessary.
2. Existing costs order. The £6,000 costs order made below could not be disturbed in the absence of agreement. The court nevertheless took that order into account in determining the just order to make in the present proceedings.
3. Costs of the appeal. The just order was that the applicant should have the costs of the Court of Appeal hearing, which had become unnecessary because of the respondent’s concession. Lord Justice Mummery and Lord Justice Tuckey agreed with Lord Phillips MR.

• Court of Appeal (Civil Division). On 7 November 2001, the court considered the costs consequences of proceedings rendered moot by a respondent’s concession and awarded the applicant the costs of the hearing: [2001] EWCA Civ 1727 .
• Chancery Division. Mr Justice Patten had made an order requiring the applicant to pay £6,000 costs. No citation for that order was stated in the judgment.