Coppard v HM Customs & Excise

An appeal may be dismissed while decisions on leave to appeal and costs are reserved. The court may defer costs where the proposed order depends on unresolved public-funding liabilities or raises fairness concerns because the appeal resulted from departmental error. Where one member of the appellate court is unavailable, a decision on leave to appeal may be adjourned until the full court has considered the written submissions.

This was an appeal to the Court of Appeal (Civil Division) from the Queen’s Bench Division of the High Court, before His Honour Judge Richard Seymour QC sitting as a High Court judge. The supplied judgment does not state the underlying dispute or the substantive reasons for the appeal. The Court of Appeal dismissed the appeal, leaving decisions on leave to appeal to the House of Lords and costs outstanding.

The immediate issues concerned the proposed costs order and whether the court should determine leave while Lord Justice Mance was on leave.

The Court of Appeal, comprising Lord Justice Thorpe, Lord Justice Sedley and Lord Justice Mance, dismissed the appeal for the reasons given in writing. The supplied judgment records the consequential procedural decisions but does not reproduce the substantive reasons for dismissal.

1. Leave to appeal. The parties had made written submissions and were content for the issue to be decided without further oral argument. Because Lord Justice Mance was on leave, the court considered that the decision on leave to appeal should be made by the whole court. The decision was therefore adjourned until all three members had considered the arguments, with a decision to be given as soon as possible in the new term.
2. Costs. An agreed draft order proposed that the appellant pay the Commissioners of Customs & Excise’s costs of the appeal, subject to enforcement by set-off against any damages recovered following a new trial or pursuant to an application under section 11 of the Access to Justice Act 1999. The draft order also proposed permission to apply to a Queen’s Bench Master concerning the wording of the relevant paragraph.
3. Deferred costs decision. The court declined at that stage to make the draft costs order in that form. It had arrived too late for all three members to consider it, and at least two members were concerned that the appellant or the Legal Services Fund might bear costs arising from an error within the department, particularly since the intervening department had carried the principal weight of the successful argument. Provision for costs was accordingly adjourned pending clarification of the contingent liabilities and the Commissioners’ decision whether to press for an order.

• Court of Appeal (Civil Division): Appeal dismissed. Decisions on leave to appeal to the House of Lords and costs were adjourned. [2003] EWCA Civ 631.
• High Court, Queen’s Bench Division: Appeal stage identified in the judgment as arising from a decision of His Honour Judge Richard Seymour QC sitting as a High Court judge. The citation and result of that decision are not stated in the judgment.