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Status: Positive or Neutral Judicial Treatment

Mohammed Butt v HM Customs & Excise

CO/2460/2001
High Court of Justice Queen's Bench Division Divisional Court
12 December 2001

Neutral Citation Number: [2001] EWHC Admin 1066

2001 WL 1560844
Before: Lord Justice Kennedy and Mrs Justice Hallett DBE
Wednesday 12th December, 2001

Representation
0 Mr T Owen QC (instructed by Hughmans, 59 Britton Street, London, EC1M 5UU)
appeared on behalf of the appellant.
0 Mr A Bird (instructed by Her Majesty's Customs & Excise Solicitor's Office, 6th
Floor, New King's Beam House, 22 Upper Ground, London, SE1 9PJ) appeared on
behalf of the respondent.

JUDGMENT

MRS JUSTICE HALLETT:

1. On 3rd December 1997 a man called Ayub, the appellant's nephew, was travelling
from London to Amsterdam on a coach and was stopped at Dover by officers of HM
Customs & Excise. He was carrying US$695,000 (about £410,000 sterling) wrapped in
brown paper packages in a locked bag. Ayub said that he was travelling to Amsterdam
on a single ticket to visit his family. He had a number in Amsterdam to contact a man
called Wazir. He said that someone called Habib had sent him to Victoria Coach Station
where he collected the cash and the bag from an unknown man. He was to deliver it to
another unknown man at the coach station in Amsterdam. He said the money belonged
to Habib who was a money exchanger. He made no mention of the present appellant, Mr
Butt. The money was seized on the basis that it was money involved in drug trafficking
and therefore subject to forfeiture under section 43 of the Drug Trafficking Act.
2. On 5th December 1997 the Dover Magistrates' Court authorised the detention of the
money. On 19th January 1998 solicitors acting for Ayub informed HM Customs & Excise
that Mr Butt claimed ownership of the money. He was interviewed and put forward a
wholly different account from that given by his nephew. He said he lived in Holland and
had a partner called Wazir in a legitimate export/import business with offices in
Amsterdam. He said he also had a business partner called Habib. The money that was
found in his nephew's possession, he said, was part of a business deal he had with
someone called Maivand in Moscow. This was Mr Maivand's first order. He wished to buy
provisions from Holland for delivery within 45 days of 12th November 1997 to Moscow.
3. The appellant said that he had flown to Dubai to collect the money in cash, namely
dirhams. In Dubai he exchanged the money into US dollars before leaving the country.
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He said that he declared the money, it seems unnecessarily, to Dubai customs before he
left and had a document to prove it. He produced a number of other documents which he
claimed proved the transaction was genuine. He said he always dealt in cash. On this
occasion he had asked his nephew to take the money to give to his partner because he
himself was too ill to travel. He personally gave Ayub the money.
4. When Ayub's account was put to him that he obtained the money from Habib he said
that Ayub must have been “pissed” to get things so wrong. Although it took him some
time to make his claim to Customs & Excise to the money he said he was under
considerable pressure from his customer to provide the goods in accordance with the
delivery date.
5. Scientific examination of the money revealed traces of drugs but in no greater
quantity than that which is found on bank notes in general circulation.
6. On 18th May 2000 the Dover Magistrates' Court, having heard the applicant and a
witness called on his behalf give evidence on oath, ordered forfeiture of the money under
section 43. The section provides that the magistrates' court may order forfeiture of cash
if it is satisfied on the balance of probabilities (a) that the cash directly or indirectly
represents any person's proceeds of drug trafficking and/or (b) the cash was intended by
any person for use in drug trafficking.

7. The claimant appealed to the Crown Court at Canterbury. On 4th December 2000 Her
Honour Judge Adele Williams, sitting with Justices, was invited to rule on a number of
preliminary matters. Those originally relevant to these proceedings were whether or not
forfeiture proceedings under section 43 are criminal or civil in nature and whether or not
they contravene Article 6 of the European Convention on Human Rights and also Article
1 of the First Protocol to the Convention. The court ruled against the appellant on both
those points. The court found that forfeiture proceedings under section 43 of the 1994
Act are classified as civil in domestic law. Other than the seizure of the money no charge
or penalty is involved or imposed. The learned judge went on to say this:
“Here in our judgment, having concluded that these proceedings are civil
proceedings and that therefore the civil standard applies, we consider that
any court before it was satisfied that approximately £400,000 was to be
forfeit because it concluded that it was cash directly or indirectly the
proceeds of drug trafficking, or was intended by any person for the use in
drug trafficking would want to exercise great care in determining whether or
not the evidence and the inferences which could properly be drawn from that
evidence justified such a conclusion; in considering that matter consider the
consequences of the order if the order was found to be made.”

8. The court also declared that it was satisfied that the proceedings brought under
section 43 did not contravene either Article 6 or Protocol 1 as I have indicated.
9. The court then considered the evidence. It was dealt with on the basis of written
statements. The claimant did not give or call any evidence. No submission was made
that the evidence taken at its highest did not justify the conclusion that this was drugs
money. In the course of submissions on Article 6, however, counsel then acting for the
appellant did argue that there was no objective or independent evidence that the money
represented drugs money. His primary contention at that time, however, was that the
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approach of the courts in applications of this kind was, he submitted, to reverse the
burden of proof, requiring someone in the position of this appellant to establish that the
money was not drugs money.
10. The Crown Court, having considered the evidence, rejected Mr Butt's account to HM
Customs & Excise as wholly unbelievable. It was totally inconsistent with the account
given by Ayub. Although it was the appellant's right to remain silent at the Crown Court
hearing, Mr Butt had chosen not to give evidence which left the court with no
satisfactory or plausible explanation for the movement of this money. The court found
that the documents produced by him were unsatisfactory and failed to establish that the
money was being used for a legitimate business transaction. Not surprisingly, the court
questioned why the appellant moved large sums in cash from country to country rather
than use normal banking facilities. The court also found the quantity of cash significant.
In the result, the Crown Court found the money was intended to buy drugs in
Amsterdam, where there is easy access to drugs and drugs traffickers or was to be used
there to further drug trafficking.

11. On 22nd December 2000 solicitors acting for Mr Butt asked the court to state a case.
A month later they made a formal application, giving the alleged violation of Article 6
and Protocol 1 as the grounds for attacking the court's decision. In July the appellant
applied to add a new ground, namely:
“The Court's conclusion that the cash seized represented (directly or
indirectly) the proceeds of drugs trafficking or was intended for use in drug
trafficking was irrational in that the evidence before the Court could not in
law justify that conclusion.”

12. On 5th September 2001 Collins J, believing that the Convention grounds were still to
be advanced and on the basis that all matters in dispute should be considered together,
granted the application to amend. Mr Owen QC, on behalf of the appellant, has not
pursued before us the argument that a forfeiture scheme under section 43 which enables
a public authority to confiscate money which has been shown to a high civil standard to
be drugs money violates Article 1 of Protocol 1.
13. The issue of whether or not section 43 engages Article 6 of the Convention is, we are
told, due to be determined in the near future. Mr Owen said that unless and until the
case of Butler v United Kingdom is determined in the appellant's favour, he recognised
that in the light of a number of post-Human Rights Act authorities the Article 6 argument
is doomed to fail.
14. Thus, the matter comes before this court by way of case stated on an application to
quash the decision of the Crown Court on just one ground, the ground not advanced
before the Magistrates or the Crown Court, namely that the evidence failed to establish
to the requisite standard that the money represented the proceeds of drug trafficking or
were intended for use in drugs trafficking. Although we have not been invited to decide
the Convention points and have not heard argument upon them, for my part I am
satisfied the concessions made for the purposes of these proceedings were properly
made by Mr Owen.

15. Mr Owen referred this court to the decision in B v Chief Constable of Avon and
Somerset Constabulary [2001] 1 WLR 340. The court was there considering the nature
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of restriction order proceedings taken under section 2 of the Crime and Disorder Act
1998in relation to a convicted sex offender. Lord Bingham, Lord Chief Justice, found that
the proceedings were civil in nature but said this about the standard of proof:
“It should … be clearly recognised, as the justices did expressly recognise,
that the civil standard of proof does not invariably mean a bare balance of
probability, and does not so mean in the present case. The civil standard is a
flexible standard to be applied with greater or lesser strictness according to
the seriousness of what has to be proved and the implications of proving
those matters …
In a serious case … the difference between the two standards is, in truth,
largely illusory.”

16. Mr Owen argues that the Crown Court here failed to apply the requisite high
standard of proof for a case as serious as this. Judge Williams may have indicated that
the court would exercise great care, but, Mr Owen submitted, this failed to apply the test
laid down in Lord Bingham's analysis in B v Chief Constable of Avon and Somerset
Constabulary. The court failed, therefore, to apply a high civil standard of proof
equivalent to the criminal standard, which he contends is appropriate for forfeiture
proceedings.
17. As far as the sufficiency of the evidence before the Crown Court is concerned, he
reminded us that the burden of proof remained on H M Customs & Excise throughout to
establish that the money represented the proceeds of drug trafficking or was intended
for use in trafficking. Mr Owen's point on the evidence is a simple point, if one not
advanced before the lower courts. It is this. On the evidence before them both the
Magistrates and the Crown Court were entitled to reject the appellant's account as
preposterous. There was ample evidence to establish that the money was being used for
some criminal purpose. However, the Crown had to prove that the money represented
drugs money as opposed to money to be used in or derived from other criminal or
disreputable activities. Mr Owen submitted that the court dismissed the appeal against
the forfeiture order on the basis that: (1) Ayub was travelling to Amsterdam — this was
described as highly significant because of the easy access to drugs in that city; (2) Ayub
was carrying a very large sum of money in cash that was more consistent with drug
trafficking than any other activity; (3) the explanations advanced by Ayub and Butt were
inconsistent and untrue.
18. The court, he submits, attached particular significance to the fact that they had
compared and rejected the accounts given by Ayub and Butt in interview and Butt had
chosen to give no evidence at the appeal hearing. Mr Owen submits that a conclusion
that witnesses have given untrue even absurd explanations of their possession of or
connection with a large sum of money cannot possibly be sufficient, on its own, to
establish proof beyond reasonable doubt, or close to that standard, that the money
related to drug trafficking. He argued that, to the extent that the decision in Bassick and
Osborne v Commissioners of Customs and Excise [1993] 161 JPR 377held that justices
are entitled to order forfeiture of cash pursuant to section 43 merely because they
disbelieved the account given, is wrongfully decided. It failed, he contends, to take into
account the reasoning of Lord Bingham that the standard of proof applicable to
proceedings of this type should be that akin to the criminal standard. He accepted that a
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court is entitled to draw an adverse inference where it finds a witness has given a
dishonest account or where the owner of the money has remained silent in interview or
in court. He contended, however, that a person cannot be substantially worse off where
he gives an account which is rejected. The court cannot simply move, he argued, to the
conclusion that the money must have been drugs related. There must be some other
credible evidence which tends to establish the money represented the proceeds of drugs
trafficking or was intended for such use.

19. He referred us to the observations of Sedley J, as he then was, in the decision in

Nevin v Customs & Excise, unreported judgment delivered 3rd November 1995. At page
9 he said this:
“While the prescribed civil standard of proof would not, of course, allow the
Justices to act without satisfactory evidence on the intended use of the
money, they are not required to direct themselves, for example, in relation
to lies told by a defendant, as a judge would direct a jury in a criminal trial.
That is not to say that they should overlook the possibility that lies may have
the purpose of concealing something other than the misconduct presently
alleged. But a suspect who gives an account of his reasons for carrying the
money which the Justices reject as untruthful cannot complain if the Justices
go on to infer from other relevant evidence that by itself might not have
been enough to satisfy them that the true reason was for the use of drug
trafficking.”

20. He submitted that such relevant or credible evidence may, for example, be the fact
that the owner of the money has drugs convictions (see the R v Isleworth Crown Court
ex parte Marland [1997] 162 JP 251, and Ali v Best [1995] 161 JP 393). The fact that
significant traces of drugs are found on the notes may also amount to relevant evidence
(see Thomas v HM Customs & Excise [1995] 161 JP 386). Relevant evidence may be
that the individual has previously been found in possession of drugs and been acquitted
of drugs charges (see HM Customs & Excise v T [1996] JP 193).
21. Here, however, Mr Owen submitted, we have the lying account but no additional
credible evidence. There was no evidence of previous drug smuggling against Ayub or
Butt. Scientific examination of the notes showed no significant traces of drugs. There
was no evidence therefore, he contended, to throw any light on Ayub's likely actions in
Amsterdam. There was no evidence to establish a positive case that the money was
drugs related. The amount of money and the fact it was being taken to Amsterdam, even
taken together with the adverse inferences the court was entitled to draw, did not
amount, he argued, to sufficient evidence applying the criminal standard that the money
was drugs money.
22. Mr Bird, on behalf of H M Customs & Excise, in his written submissions, objected to
the course these proceedings have taken in that Collins J gave leave for the present
ground to be added on a false premise. The points now raised, he reminded us, were
never argued before the lower courts. Obliged, however, to argue the case as advanced
on the material before us, he conceded that the standard of proof to be applied
depending on the nature of the proceedings is a flexible one. In B v Chief Constable of
Avon and Somerset Constabulary, where the order sought cast aspersions on the
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character of a respondent and restricted his free movement, the standard applied was
virtually indistinguishable from the criminal standard. He disagreed that such a high
standard should apply to forfeiture proceedings however. He reminded us that
Parliament intended that the standard to be applied was the civil standard and not the
criminal standard. These proceedings involve no aspersions on the character of this
applicant. He reminded us that the court did not even find that the money belonged to
Mr Butt. The court's findings applied to the money and not to Mr Butt. This is, in effect,
an action in rem. The court have only to be satisfied that “any person” within the terms
of section 43 had the money in connection with drugs. In some cases, he argued, there
may be no respondent to forfeiture proceedings at all, for example, where cash is found
in unaccompanied luggage. The accepted innocence of the courier, or indeed the owner
of the money, could not be a bar to forfeiture proceedings under section 43 (see Thomas
v HM Customs & Excise [1995] 161 JP 387).
23. There may be cases, he argued, where the proceedings do involve an assertion by
Customs & Excise that the respondent has committed or is committing an offence, but it
will not necessarily be so. In this case, Mr Butt chose not to give evidence. The question
of his knowledge of any illicit activity did not therefore arise.
24. He reminded us that provision is made in these proceedings which provide for
mutual disclosure of documents and evidence. Mr Butt put forward a positive case about
the origin and intended destination of the money in his interview and his evidence before
the Magistrates and in the documents disclosed to the Crown Court. At the Crown Court
counsel on Mr Butt's behalf did not seek to go back on the case previously advanced.
Thus, he contended there were only two possibilities before the court: either this was
drugs related money, as HM Customs & Excise submitted, or it represented an advance
payment to Mr Butt from an Afghan customer made by a very curious route and rather
curious means.
25. Turning, firstly, to the standard of proof and its application to proceedings of this
kind, it is obviously important to note, as Mr Bird argued, that Parliament specifically
provided that the civil standard of proof should apply to proceedings under section 43. It
would, in my view, defeat Parliament's clearly expressed and enacted intention if the
courts were to find that every case of forfeiture under section 43 involves a finding of
criminal activity and, therefore, the standard to be applied is the criminal standard of
proof.
26. Counsel has been unable to find any direct guidance as to the approach to be
adopted in deciding how the civil standard of proof should be applied in forfeiture
proceedings. We have been referred to examples of cases where the courts have held
that forfeiture has been justified, but not where there has been discussion of the
application of the standard itself. In Bassick & Osbourne v HM Customs & Excise [1993]
161 JP 377the court found not only that the magistrates were entitled to draw
inferences, but also that the combination of the destination of Amsterdam, lack of
legitimate documentation and a lying explanation was sufficient to establish on the
balance of probabilities that the money in question was drugs related.

27. I have obtained considerable guidance from B v Chief Constable of Avon and
Somerset Constabulary referred to us by counsel, but also from the speech of Lord
Nicholls in In Re H (minors), House of Lords1996 at page 586, referred to counsel by my
Lord, Kennedy LJ, during the course of argument. Lord Nicholls said this:
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“The balance of probability standard means that a court is satisfied an event

has occurred if the court considers that, on the evidence, the occurrence of
the event was more likely than not. When assessing the probabilities the
court will have in mind as a factor, to whatever extent is appropriate in the
particular case, that the more serious the allegation the less likely it is that
the event occurred and, hence, the stronger should be the evidence before
the court concludes that the allegation is established on the balance of
probability.”

28. Lord Nicholls in his speech went on to give a number of examples of this, including:
“Fraud is usually less likely than negligence. Deliberate physical injury is
usually less likely than accidental physical injury.”

29. In B v Chief Constable of Avon and Somerset Constabularythe court was plainly
dealing with very different provisions from those under consideration here. Firstly, in the
Crime and Disorder Act 1988 Parliament, whatever its intention, did not expressly enact
that the civil standard of proof should apply to the making of restriction orders upon
convicted sex offenders. In the Drug trafficking Act 1994 it did. In B the making of the
order in question would have had very severe consequences for the individual
concerned. Before making a restriction order the court must first find that since
conviction the offender has continued to behave in such a way as gives reasonable cause
to believe he poses a risk of serious harm to the public. If such findings are made the
court may then impose restrictions upon the offender's movements, the people he may
contact and where he may live. Breach of the court order may lead to a fine or
imprisonment. Proceedings under section 43, however, lead to the forfeiture of a sum of
money and nothing more. The proceedings here did not render Mr Butt, or indeed
anyone else, liable to imprisonment or a fine. No findings have been made against Mr
Butt to his discredit. No restrictions have been placed upon his life.
30. I reject Mr Owen's submission, therefore, that the court should have applied a
standard of proof akin to the criminal standard. I am not persuaded that proceedings
which relate solely to the forfeiture of even a sum of money as large as this require HM
Customs & Excise to prove the drugs connection to the criminal standard or, as Mr Owen
put it, something very close. Nor am I persuaded that forfeiture proceedings of this kind
fall into the category of case envisaged by Lord Nicholls where the allegation made is so
inherently improbable that more cogent evidence is required than may normally be the
case. I am satisfied that the test properly applied to these proceedings was whether or
not the court was satisfied that it was more probable than not that the money
represented the direct or indirect proceeds of drugs trafficking or was intended for use in
drugs trafficking.
31. I am satisfied that the approach adopted by Judge Adele Williams in this case to the
standard of proof was an eminently sensible and fair one. As she put it, the court would
apply the civil standard but with great care. If any gloss was needed on the words of the
statute — and I, for my part, am not persuaded that on the facts of this case it was —
that gloss must have operated to the benefit of Mr Butt. The court was plainly conscious
of the consequences of a forfeiture order when such a considerable sum of money was at
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stake.
32. I turn therefore to the question whether or not the evidence in this case justified the
court's finding that this was drugs money. Firstly, I am satisfied the court did not reach
its conclusion on the basis of its rejection of the appellant's explanation alone. It was but
one factor of many which they took into account in reaching their conclusions. It was, in
my judgment, highly significant that Ayub failed to mention the appellant, his uncle, at
all when questioned and said the money came from and belonged to Habib. The only
evidence that the money was this appellant's came from his own assertion in interview,
not repeated on oath before the Crown Court. The documents produced by him were
highly unsatisfactory. Having considered them, they seem to me to raise more questions
than they produce answers. I share the Crown Court's considerable reservations about
them. Mr Butt's account was inherently implausible, preposterous may be a better word,
and was, in my view, rightly rejected by the Crown Court. That means, of course, that
Mr Butt did not establish any lawful claim to the money. It also means, however, that
the court found that the appellant had concealed the truth as to the provenance or
intended use of this money. These were drugs trafficking proceedings where, as Mr Bird
succinctly and sensibly put it, the only truth that counts is whether or not drugs were
involved.
33. I turn lastly to consider the extent of the other evidence before the Crown Court in
addition to Mr Butt's lies. In summary, Mr Butt's nephew was found in possession of a
locked holdall, given to him apparently by a stranger, containing a very large sum of
money wrapped in brown paper hidden beneath clothes. Mr Ayub was travelling on a
single ticket from Victoria to Amsterdam by coach. The size of the sum is consistent with
it being related to drugs trafficking. A safe inference, in my judgment, can be drawn that
the money was being smuggled out of the United Kingdom to Amsterdam, where drugs
are freely available. Amsterdam, unfortunately, has an international reputation as a
centre for drugs trafficking. It is a well-established, if sad, fact and needs no evidence to
prove it. It is a major source of supply for drugs brought into this country. Drugs dealers
generally deal in cash. Ayub had no documents upon him to support the appellant's
contention that the money was destined for a legitimate business enterprise. If this was
the appellant's money, his failure to use the normal banking channels and to transport
money in this way, from country to country, would by itself arouse considerable
suspicion. As Mr Owen conceded, the perfectly proper inference to be made on this
evidence was that some criminal activity was afoot.
34. It was open to Mr Butt, as I have indicated, knowing that the only issue before the
court was whether or not drugs were involved, to say that he or Ayub were engaged in
some other activity, be it unlawful or disreputable. He chose not to do so. Thus there
was no evidence before the court to suggest that the money came from or was intended
to be used in any criminal enterprise other than drugs, and I accept Mr Bird's submission
that there remain only two realistic alternatives on the facts of this case: either the
appellant's account was true or the Customs & Excise account was the proper one. Not
surprisingly, in my view, the Crown Court declared it was satisfied that the explanation
offered by HM Customs & Excise was the correct one and the court could draw a safe
and proper inference that this was drugs money. In my judgment, it was overwhelmingly
the most likely explanation.
35. The fact that the court had before it no direct evidence of a drugs connection and
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relied on inference does not, in my view, help this appellant. The provisions of section 43
are a perfectly proper and proportionate attempt by Parliament to suppress the
international evil of the trade in drugs. If the courts held that HM Customs & Excise must
produce evidence of a direct link to drugs smuggling before a forfeiture order could be
made it would have a significant impact upon the effectiveness of this legislation. A
drugs dealer, as Mr Bird submitted, could ensure that no evidence of significant drugs
traces would be found on the money by taking the simple precaution of exchanging the
currency, something that Mr Butt, coincidentally, it seems, did here.
36. In any event, I can see no justification for the proposition that only direct or, as Mr
Owen put it, positive evidence will suffice. As any advocate and trial judge knows,
circumstantial evidence can be equally compelling. I find support for that approach in the
judgment of Watkins LJ in Bassick & Osborne, to which I have referred, and where the
court held that direct evidence was not required.
37. Accordingly, I reject Mr Owen's criticisms of the approach adopted by Judge Adele
Williams and her colleagues in the Crown Court. There was, in my view, ample evidence
before them to justify their finding on the balance of probabilities. For my part, I would
dismiss this appeal.
LORD JUSTICE KENNEDY:
I agree.
MR BIRD: Two matters in my Lady's judgment. Firstly, when dealing with the statute, I
think my lady summarised it and said that section 43 included the words “balance of
probabilities”. In fact, it does not, it is “civil standard”.
MRS JUSTICE HALLETT: I think I was paraphrasing rather than quoting.
MR BIRD: The other matter is my Lady said that the rules provide for usual disclosure, in
fact, there are not any rules, directions are sometimes made, and in this case it was
done by agreement, but there are not in fact any rules.
MRS JUSTICE HALLETT: I am grateful.
MR BIRD: I think that the only other matter is whether the court feels it has to answer
the question in a particular way that has been posed.
LORD JUSTICE KENNEDY: It is rather difficult having regard to the fact that it is not
really the lower court's case.
MR BIRD: Exactly. It may simply be better to say appeal dismissed.
LORD JUSTICE KENNEDY: I think in the curious circumstances of this — let us just have
a look at the question, 127.
MR BIRD: 126 and 127 are the original questions, which my friend accepts the court
should answer in the negative.
MR OWEN: I have set it out in my skeleton argument in fact, which I took from Collins
J's reformulation at the end of his ruling, so I have quoted verbatim from his
reformulation. I have set out 1 and 2 and then at the top of page 2 I have set out the
third point. I accept that it is not a yes/no question.
LORD JUSTICE KENNEDY: I think probably in the unusual circumstances of this case it is
just best left on the basis that my lady has left it. Normally one does seek to answer the
directly but it is not the Crown Court's question, so we will leave it where it lies.
 Page 10

MR BIRD: The only other matter is the question of costs. I would invite the court to
make a summary assessment. May I hand this up.
LORD JUSTICE KENNEDY: Mr Owen, have you had a chance, first of all, to see it and,
secondly, to take instructions on it?
MR OWEN: Yes, I have no submissions to make and I cannot oppose the application.
MR BIRD: It is my fee note plus five hours of the solicitors' time. Collins J reserved costs
on 5th September, so that is why it is approximately double what it would otherwise be.
LORD JUSTICE KENNEDY: So the total sum sought is the sum of £1,762?
MR BIRD: No, £3,750, my Lord.
LORD JUSTICE KENNEDY: I see, yes.
MR BIRD: We would ask for an order in that sum.
MR OWEN: My Lord, I make no submissions.
LORD JUSTICE KENNEDY: Very well. We are prepared to assess costs summarily in the
terms of the document placed before us, and we will order that the appeal be dismissed
with costs in the sum of £3,750.
MR OWEN: My Lord, my Lady, I have discussed with my learned friend, this is not, in our
view, a criminal cause or matter. There would be no need therefore to certify, and if I
wished to get leave I have to seek that from the Court of Appeal direct, because it is a
second tier appeal. That is simply for the record.
LORD JUSTICE KENNEDY: Thank you very much. For what is worth, we do not have to
decide upon it, I agree with you but no more need be said at this stage.
Thank you very much.
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