Chitolie v Customs & Excise

An appellate court should not interfere with a lower court’s discretionary costs direction where the judge had sufficient material to exercise the discretion and there is no realistic prospect of demonstrating error. A complaint of unfair hearing has no reasonable prospect where the applicant was present, was heard, and there is no reason to doubt that the judge considered the submissions. A decision in separate proceedings provides no assistance on issues which it did not determine.

Mr Chitolie applied for permission to appeal against an order made by Lloyd J in the Chancery Division on 22 July 2002. The order directed that the costs of a dismissal-list hearing be costs in the appeal and refused permission to appeal against that direction.

The papers contained little information about the underlying appeal. Mr Chitolie relied principally on earlier proceedings concerning a VAT assessment, a bankruptcy petition and costs orders made in those proceedings. The Court of Appeal had previously allowed an unopposed appeal in that separate procedural history. The central issue was whether there was any arguable basis for disturbing Lloyd J’s discretionary costs decision, including the applicant’s assertions concerning a fair trial and inhuman or degrading treatment.

1. Application refused. The application was misconceived and had no realistic prospect of success. The only order relevant to the present application was Lloyd J’s direction that the costs of the hearing should be costs in the appeal rather than costs awarded to Mr Chitolie.
2. The earlier Court of Appeal decision concerned different proceedings. It did not adjudicate the matters raised by the present appeal and therefore provided no assistance on the present costs issue.
3. There was a material distinction between the earlier proceedings and the present hearing. In the earlier proceedings Mr Chitolie had not been brought before the court while in custody. At the hearing before Lloyd J he was present and was heard. There was no reason to doubt that the judge had taken account of what he wished to say.
4. Lloyd J was entitled to conclude that there was good reason for the appeal to have been placed in the dismissal list and to direct that the hearing costs be costs in the appeal. That was an exercise of judicial discretion which the Court of Appeal had no prospect of disturbing on the material available.

The application was dismissed and permission to appeal was refused.

• Court of Appeal (Civil Division): On 23 October 2002, Simon Brown LJ refused the application for permission to appeal and dismissed it.
• High Court, Chancery Division: On 22 July 2002, Lloyd J directed that the costs of the dismissal-list hearing be costs in the appeal and refused permission to appeal against that direction.