Fengate Developments v Customs & Excise

1. LORD JUSTICE MUMMERY: For the reasons which have been given in the draft judgments which have been made available to counsel, this appeal is dismissed.

2. The court has received submissions in writing from the parties on two points affecting the order. The first point concerns the order for costs. Submissions have been made on behalf of the appellant against the making of the normal order that an unsuccessful appellant should pay the costs. It was submitted that the proper order in this case should be that the appellant should only have to pay 50% of the respondent's costs.

3. Having considered the submissions in writing, the court has concluded that the proper order is the normal one. So the appellant will be ordered to pay the costs of and occasioned by the appeal, and the order for costs made in the High Court in favour of the Commissioners of Customs and Excise will remain undisturbed and there will be a detailed assessment if the parties are unable to agree the costs.

4. The court has also received written submissions on the application of the appellant for permission to appeal to the House of Lords. The application is opposed by the respondent.

5. In our judgment this is not an appropriate case for granting permission to appeal to the House of Lords. It does not raise a point of general public importance. The arguments advanced by the appellant involved challenges to findings of fact by the Tribunal, and the history of this litigation to date is that the appellant has lost at every stage.

6. The order which will be made in those circumstances is as follows: (1) the appeal be dismissed; (2) the appellant do pay the respondent's their costs of and occasioned by the appeal and their costs of and occasioned by the appellant's appeal to the High Court, such costs to be the subject of a detailed assessment if not agreed; and (3) permission to appeal to the House of Lords is refused. ______________________________