A3/2002/1709
Neutral Citation Number: [2002] EWCA Civ 1580                                             
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION 
(MR JUSTICE LLOYD)
Royal Courts of Justice 
Strand 
London, WC2 

Wednesday, 23 October 2002
 
B E F O R E:

LORD JUSTICE SIMON BROWN
(Vice President of the Court of Appeal, Civil Division) 

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DICK LUCIEN CHITOLIE
Appellant/Applicant
‑v‑
 
THE COMMISSIONERS OF CUSTOMS AND EXCISE 
Respondents/Respondents 
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(Computer‑Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
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- - - - - -

The Applicant appeared on his own behalf 
The Respondent did not appear and was not represented 

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J U D G M E N T
1.	LORD JUSTICE SIMON BROWN:  This is an application by Mr Chitolie for permission to appeal against an order made by Lloyd J on 22 July 2002.  
2.	That order, made in the Chancery Division in proceedings no CH/2000/APP/257, between Mr Chitolie as the appellant and the Commissioners of Customs and Excise as the defendant, reads as follows:
"Upon a dismissal list hearing being held
and upon hearing the Appellant in person and Counsel for the Respondent 
it is ordered 
(1) that the costs of today be costs in the Appeal 
(2) that the Appellant be refused permission to appeal against paragraph (1) of this order."
That order itself is the only document in the papers filed for this application which relates to this particular appeal no CH/2000/APP/257.  Nothing in the papers tells me anything of the nature of that appeal in the Chancery Division; or the circumstances in which it came to be placed in the dismissal list; or the circumstances in which Lloyd J came to make his order.  The remaining papers before the court are concerned with other proceedings between these parties.  
3.	Briefly, the history that they reveal is this.  On 24 May 1996 the Commissioners of Customs and Excise raised an assessment of VAT upon this applicant of some £412,000.  On 29 August 1996 the VAT Tribunal stood over his appeal against it.  Mr Chitolie was at that time in custody awaiting sentence, having been convicted after a ten‑week trial of an offence of evading excise duty, for which he was on 20 September 1996 sentenced to a term of four years' imprisonment.  On 6 January 1998 the commissioners issued a statutory demand against Mr Chitolie for £468,000‑odd.  On 4 February 1998 they issued a bankruptcy petition against him.  On 13 March 1998 the VAT Tribunal wrote to Mr Chitolie asking when he would be pursuing his outstanding appeal.  On 23 April 1998, on the adjourned hearing of the bankruptcy petition, the commissioners asked for it to be dismissed with no order for costs.  It was plain to them by then that it would be quite improper to pursue the petition.  There remained outstanding an appeal against the original VAT assessment on which the petition and the statutory demand had been based.
4.	On 23 April 1998 the application before the court was heard in Mr Chitolie's absence.  He was apparently in the building, in custody as a prisoner, but unfortunately he had not been brought by his custodians before the relevant court.  The order was made as asked for by the commissioners; namely  the bankruptcy petition was dismissed with no order for costs.  On 12 November 1998 Mr Registrar Baister dismissed the applicant's application for that costs order to be revised.  The applicant was contending that he should have his costs of the hearing, and had put in what was later described by this court as the "absurdly exaggerated" claim of some £8,000 plus.  On 23 February 1999 Judge Boggis QC dismissed Mr Chitolie's appeal against Mr Registrar Baister's order.  On 22 July 1999 this court gave Mr Chitolie permission to appeal against that order, and on 30 November 1999 this court allowed the substantive appeal.  By then it was unopposed and Mr Chitolie was given £180 in respect of his costs below, and £150 as his costs of the appeal.
5.	All that, I repeat, is in relation to other proceedings and forms simply the background to today's application.  In my judgment, it provides Mr Chitolie with effectively no assistance whatever today.  As the respondents pointed out in a letter which they wrote to him on 5 August 2002:
"I have to point out that the matter proceeding in the High Court is your appeal not the Commissioners.  The Commissioners are happy for the appeal to proceed and have been pressing for a hearing for the last two years."
And then, referring back to the earlier Court of Appeal judgment, upon which it appears Mr Chitolie was continuing to seek to rely:
"It did not in anyway adjudicate upon the matters raised by your present appeal to the High Court."
In saying that the commissioners were, in my judgment, indisputably right.
6.	The applicant's notice of appeal to this court asserts that his present application involves both Article 6 with regard to a fair trial and Article 3, and reads:
"(1) The Judge is wrong & out of order not to give the appellant his costs of the day.  
(2) The Judge totally ignored the appellant because he was fully aware of being unlawful.  
(3) The appellant is entitled to his costs because: the respondent failed to dismiss the appellant's appeal on the day ‑‑ in law ‑‑ lost [and that word is twice underlined] on the day, therefore the appellant demand his costs on the day."
7.	I have to say that this application is frankly misconceived and quite hopeless.  As I repeat, I am told nothing as to precisely why Lloyd J came to his decision on 22 July, save only that the order was made on an adjourned hearing of a listing in the dismissal list from 1 July, the proceedings having been commenced some two years earlier.
8.	Unlike the situation in the earlier case, when Mr Chitolie had not been before the court because those guarding him had not brought him to the right place, this time he was before the court and he was heard, and there is no reason to doubt that the judge took account of whatever it was he wanted to say.  It seems to me perfectly clear that the judge regarded there as being good reason for the appeal having been placed in the dismissal list, at least to the extent of deciding that the costs of that hearing before him should be costs in the appeal and not awarded to the appellant, Mr Chitolie.  He was perfectly entitled to reach that conclusion, and there is no prospect whatever of this court disturbing that exercise of his discretion.  
9.	I repeat, this application is hopeless.  It is dismissed. 
ORDER:  Application refused