ON APPEAL FROM THE HIGH COURT
QUEENS BENCH DIVISION
(HIS HONOUR JUDGE RICHARD SEYMOUR QC
Sitting as a High Court Judge)
Royal Courts of Justice
Strand
London, WC2
B E F O R E:
LORD JUSTICE THORPE
LORD JUSTICE SEDLEY
and
LORD JUSTICE MANCE
EDGAR JOHN COPPARD
Appellant
-v-
HM CUSTOMS & EXCISE
Respondent
(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR D MACPHERSON (instructed by Messrs Johnson Sillett Bloom of London WC2A 1JE) appeared on behalf of the Appellant
MR M PATCHETT-JOYCE (instructed by Customs & Excise Legal Services of London SE1 9PJ) appeared on behalf of the Respondent
MR P SALES (instructed by Treasury Solicitors of London) appeared for the Lord Chancellor's Department
J U D G M E N T
(As Approved by the Court)
Crown copyright©
Wednesday, 9th April 2003
1. LORD JUSTICE SEDLEY: For the reasons given in writing, this appeal will be dismissed. There remain two issues: appeal to the House of Lords; and costs.
2. The parties have sensibly put their submissions on the first of these in writing and are content that our decision should be given without further oral argument. Mance LJ, however, is now on leave. It is right that the decision on leave to appeal should be a decision of the whole court. We therefore propose to give it when the three of us have considered the arguments.
3. As to costs, a draft order agreed by all three parties is before the court. It provides, among others things, that the appellant pay the respondent's (that is the Commissioners of Customs & Excise's) costs of the appeal, but that the order be not enforced except by way of set-off against the damages claim -- that is, presumably, if a new trial is ultimately secured and produces a new award of damages -- or pursuant to an application by the Commissioners under section 11 of the Access to Justice Act 1999.
4. The reason for the last provision, as I understand it, is that it has only recently been ascertained that the appellant's public funding was restored close to the hearing date of this appeal. The Commissioners want, as I understand it, to be able to go against the appellant or the fund or both, depending on what the ambit of protection conferred by the certificate turns out to be. To this end, the draft order further proposes that there be permission to apply to a Queens Bench Master "as to the wording of paragraph 5". That is the paragraph making the provision to which I have referred.
5. I do not propose at present to make an order in this form. It has reached the court -- and I mean no criticism by this -- too late for all three members to form a view upon it, but at least two of us are not happy that an order which may result in Mr Coppard's paying any of the costs of an appeal resulting entirely from an error within the Department which, as intervener, has carried the principal weight of the successful argument. By parity of reasoning, we are no happier at the Legal Services Fund having to foot the Commissioners' bill.
6. For the present, therefore, and in the absence of the parties, I will make the order in the agreed form sought in the first three paragraphs. I will adjourn provision for costs and for appeal to the House of Lords to await, first, the elucidation of the contingent liabilities of the appellant or the Fund and, second, the Commissioners' consideration of whether they should press for an order.
7. We will give our decision on leave to appeal as soon as possible in the new term and our decision on costs as soon as we have the parties' responses to the foregoing. If an oral hearing is needed on the latter, it will have to be arranged, but it, too, may be able to be dealt with by written submission.