First Stop Wholesale Ltd. R (on the application of) v Revenue & Customs

This is a claim for judicial review of various seizure notices issued by the defendants in July 2011. Permission was granted to bring this claim for judicial review by Cranston J on 3 February 2012. I heard a related case in March of this year and gave judgment in that case on 27 March 2012.

The background to this case can be seen from my earlier judgment of 27 March at paragraphs 1 to 7. It is not therefore necessary to set it out in full. As I said, between 22 June and 24 June 2011 quantities of alcohol were detained and removed by the defendants from the claimant's warehouse at Unit 15, Cousins Street, Wolverhampton and also six retail premises in the Wolverhampton and South Staffordshire area. The retail businesses are owned by the claimant's director, Mr Tajinder Singh, trading as a sole proprietor.

The goods concerned can be divided into three categories, as I said at paragraph 22 of my earlier judgment. The first category is those goods which were seized before 4 November 2011. That is the date on which Sales J granted permission in the previous case. It was common ground before me on that occasion that those goods were not in issue in those proceedings because they were not covered by the scope of the permission granted by Sales J which applied only to those goods which had been detained but not seized by 4 November 2011. The present case does concern the first category of the goods concerned.

It is not necessary for present purposes to refer to all of the notices which are under challenge in this case. It will suffice, by way of example, to refer to one such notice of seizure which was issued on 28 July 2011. That is in the bundle at page 15. The notice so far as material states:

As I said in my earlier judgment, the principal statute which governs this area is the Customs and Excise Management Act 1979. Section 139 provides:

It is not necessary to refer to all of the statutory provisions upon which the defendants purported to rely when they issued the notices under challenge. It will suffice to make reference for present purposes to the main provision relied upon for example in the notice of 28 July 2011 which I have already cited. Section 49 of the 1979 Act provides:

Paragraph 1 of schedule 3 to the 1979 Act provides:

Finally, it is necessary to refer to section 154(2) of the 1979 Act which provides:

It is common ground before me that the effect of that provision is to place the legal burden of proof on a person such as the present claimant in proceedings for forfeiture brought by the defendants in the magistrates' court. There are such proceedings pending in the magistrates' court in the present case. I have been informed that those proceedings have been adjourned in order for this court to be able to determine this claim for judicial review.

The claimant submits that the notices of seizure in this case were defective in law. The claimant submits that the defendants misdirected themselves in law when they issued, for example, the notice of 28 July 2011 at page 15 of the bundle. This is said to be because the defendants gave as a ground for seizure (and therefore liability of goods to seizure) a ground which is not in law a relevant one under the governing legislation. In particular, the claimant submits that the only lawful ground potentially relevant in this context in the list of grounds to be found in section 49 of the 1979 Act would have been that the defendants averred that the goods in question were goods on which duty had not been paid when it should have been. The claimant submits that the notices do not in fact make that averment; rather, it is submitted they say only "that no evidence of UK duty payment has been provided".

In support of its submission, the claimant relies on the judgment of the Court of Appeal in Eastenders [2012] EWCA Civ 15, to which I have made reference at length in my earlier judgment. In particular, the claimant relies upon the judgment of Elias LJ at paragraph 78. That judgment was the main judgment for the majority in the Court of Appeal in that case. Elias LJ there said:

The claimant also relies on my earlier judgment at paragraph 28 where I sought to summarise the principal submissions on behalf of the claimant, and paragraph 35 where I said this:

For their part, the defendants submit that the issue has to be approached with realism and a dose of common sense. They submit that the notices of seizure should not be construed as if they were statutes, contracts or pleadings. The defendants submit that it would have been perfectly clear and apparent to the claimant in the circumstances of this case why it was that the goods were being seized, namely that Customs' view was that the relevant duty had not been paid on the goods concerned.

The defendants submit that there is an analogy to be drawn with Christie v Leachinsky [1947] AC 573, to which I have made reference, in the speech of Viscount Simon at page 587 where he set out certain propositions of principle in relation to what is required of a police officer when making an arrest. In particular, the defendants drew my attention to proposition 3:

Although the present case concerns interference with rights of private property rather than the right of the personal liberty, nevertheless it is submitted that an analogy can be drawn, and emphasis is particularly placed on what Viscount Simon said as to the requirement of "substance"; in other words, this is not a matter of mere form.

The defendants further submit that the factual context in which the notices were issued is also important here. They remind the court of the lengthy witness statement which has been filed on behalf of the defendants by Simon Hewitt, an officer in Her Majesty's Revenue and Customs. It is not necessary for present purposes to rehearse the detail of that lengthy witness statement, suffice to say the defendants submit that Mr Hewitt sets out in some detail a description of the investigation that was conducted after the notices of seizure were issued in the present case for approximately one month. He describes the enquiries which culminated in the issue of the notices of seizure from 28 July 2011 onwards. Particular attention was drawn to paragraph 66 of Mr Hewitt's witness statement:

The defendants also submit that it is clear that as part of the investigation by Customs over that month-long period, the claimant itself played an active part. For example, the claimant provided the schedule which appears at page 27 of the bundle. It is not necessary for present purposes to rehearse its details.

I accept the submissions which have been made on behalf of the defendants in this case. The matter has to be looked at as a matter of substance and not form or technicality. The claimant invoked in support of its submissions a suggested analogy with the well-known decision in the immigration detention context in Khawaja v Secretary of State for the Home Department [1984] AC 74. In particular, my attention was drawn to the speech of Lord Fraser of Tullybelton at page 97 D to F, where he said:

The claimant submits that in the context of immigration detention in the light of the principle established by the House of Lords in Khawaja, it would not be acceptable, for example, for a notice of detention to say to a person "no evidence has been provided that you are not an illegal entrant". The claimant submits that in that context it must undoubtedly be the case, in accordance with the principle established in Khawaja, that any notice of detention would have to say that the detaining authority positively averred that the detainee was indeed an illegal entrant, not merely that no evidence had been provided that he was not.

However, it must be recalled that in the context of immigration detention, as the House of Lords made clear in Khawaja itself (for example at page 112 A to B in the speech of Lord Scarman) the burden of proof is placed by law on the detaining authorities to prove that the detainee is in fact an illegal entrant. In the present context, as I have already indicated by reference to section 154(2) of the 1979 Act, the legal burden of proof is placed upon the owner of the goods in question and not upon Customs and Excise.

The claimant also sought to support its submission by way of a suggested analogy with a hypothetical example. Take, for example, a customer from a retailer, such as a supermarket, who has just bought some beer or wine and is served with a notice of seizure by Customs. The claimant submits that it would not suffice for the defendants there to serve a notice saying only that no evidence has been provided that UK duty has been paid. The claimant submits that the requirement imposed on the defendants would surely be to aver positively that duty has not in fact been paid. I do not accept that the analogy is an exact one. In the present case, there were investigations which lasted about a month, as described in detail in Mr Hewitt's witness statement. It was those enquiries that led to the issue of the notices of seizure in the present case. In my judgment, in the circumstances of the present case there can have been no doubt, and certainly should not have been any doubt, that what the defendants were saying was that they believed the duty was owed on the goods in question. Their investigations, including enquiries made not only of third parties but assisted by the present claimant, had not led them to find any evidence establishing that duty had in fact been paid, and it was in that context that the notices were issued and expressed in the terms which I have already indicated. Accordingly, I reject the ground of challenge advanced on behalf of the claimant.

Even if I were wrong in my conclusion on the point of substance in this case, I would refuse to grant any remedy in the exercise of the court's discretion. In my judgment, there was no real prejudice to the claimant, which knows from the factual history (which I have outlined and which is set out in more detail in particular in Mr Hewitt's witness statement) exactly what the defendants are contending, namely that the relevant duty has not been paid on the goods which were seized. The claimant bears the legal burden of proof on that issue and will have the opportunity to discharge that burden in the proceedings which are pending in the magistrates' court and which stand adjourned. If it can discharge that burden, it will succeed; if it cannot discharge that burden, it will fail, but that will not be because of any alleged defect in the form of the notices under challenge. That will be because that will be in accordance with the will of Parliament which, whatever the evidential difficulties in practice may or may not be for the citizen, has thought it right to impose the legal burden of proof on the owner of the goods in question in proceedings of this sort. That is, of course, the provision to be found in section 154(2) of the 1979 Act.

For the reasons I have given, this claim for judicial review is dismissed.

Yes, Mr Puzey.

MR PUZEY: The defendants apply for their costs in the sum of £19,434, the costs schedule having been served on Wednesday.

MR JUSTICE SINGH: Yes. What do you say about that?

MR GLOVER: My Lord, the claimants oppose the application for costs. It is a slightly novel basis on which I oppose it, but nonetheless I must advanced it in this court first of all. The opposition that we take is premised primarily on the costs decision in Eastenders. My Lord, I am not certain that you have a copy of that. I believe it was made available for the last --

MR JUSTICE SINGH: I think it is in this bundle. Tab five.

MR GLOVER: Yes, my Lord, you have it. My Lord, the point that is being advanced by the claimant is that there is a discretion to costs available to the court, and were the court in the circumstances of this case to exercise the discretion in favour of the Revenue, it would amount to the breach of my client's Article 6 rights.

My Lord, I would ask you to the turn to the decision of Elias LJ in Eastenders, and in particular starting at paragraph 40. My Lord may recall that the claimant in that case, Eastenders, relied on the Polish decision in Stankiewicz, relying on that case to support the proposition that where the State is given an advantage of a cost shield, it is a breach of Article 6. Elias LJ says this at paragraph 40:

He goes on to note:

It goes on at paragraph 41:

Paragraph 42 says:

Then the final paragraph at 43 summed up part of the claimant's proposition, although it did not actually apply directly in Eastenders, and it was:

Now in this case, we find ourselves in the situation where HMRC is asking for its costs and there is no statutory shield for the claimant who loses. If your judgment had been in the favour of the claimant today, we would have had a submission from HMRC that costs could not be ordered against it because it has a statutory shield. We say that gives rise to the obviously uneven and unlevel playing field, which restricts parties' access to justice. So in determining in the matter of your discretion whether you should make a costs order in favour of the Revenue today, you should decline to make that costs order.

MR JUSTICE SINGH: But is this not exactly the submission which was rejected by the Court of Appeal in Eastenders?

MR GLOVER: With respect, my Lord, it was subtly different (Inaudible) because in Eastenders we had won and we were asking for our costs, and the Court of Appeal in Eastenders were saying there is a statutory costs shield -- and we of course disagree, the claimants in that case are taking it to the Supreme Court -- but the Court of Appeal in Eastenders said that the statutory costs shield does give the Revenue protection, it says it gives them in certain circumstances, because there is no requirement under European legislation to have costs shifted. That is what is the authority for that proposition.

What I am advancing Eastenders for is the proposition that you must have a level playing field, and we are now on the opposite side of that coin, where we have lost and we are suddenly in the situation of having to pay the Revenue's costs. What we are saying, or the claimant is advancing, is that cannot be a fair situation under Article 6 in circumstances where, if we had won, we would not have got our costs back.

MR JUSTICE SINGH: But you would not accept that you could not have got your costs if you had won.

MR GLOVER: The claimant would have accepted that proposition from the bar, but in reliance on the decision of Eastenders the Revenue were saying that is the position today. Whether this court would follow that or not is another matter, we do not know, because we have not won today and we have not (Inaudible). But the proposition today that would be put by the Revenue had they met an application for costs by the claimant that Eastenders positively supports their assertion that there is a costs shield against the claimant. What we are saying is in exercising your discretion today we would respectfully submit that to order us to pay the Revenue's costs in circumstances where had we won it would seek to raise and seeks to raise in the earlier decisions the section 144 shield would be a breach of Article 6. The principle that came across in Stankiewicz was that where you have uneven costs rules, it in effect restricts parties' access to the court system because it prevents people feeling able to pursue grievances through the court system.

MR JUSTICE SINGH: But does it follow that there must be no order as to costs in this kind of case whatever the outcome is?

MR GLOVER: My submission is that in this case today the right costs order is no order as to costs.

MR JUSTICE SINGH: But in order to get equality of arms, do you have to have a regime which says no order as to costs in every case? Because if you had won and you had got your costs, whatever the objections of the Revenue might have been and that is a hypothetical scenario, but you would undoubtedly have asked for your costs; or are you accepting that you would have been content with no order as to costs?

MR GLOVER: No, because of course we say what you would have said in this case had we won that the statutory shield, although it exists and can be raised by HMRC, cannot be raised in this case for the reasons that my Lord found in First Stop number 1 costs, which was that where the underlying reason given was a reason --

MR JUSTICE SINGH: Exactly. Now, suppose I was right about that, subject to any appeal against that order, but let us assume at least for the moment that I was right about that, then they have no shield if you win. You have lost, so why should you not have to pay their costs? That is equality of arms, is it not?

MR GLOVER: My Lord, the predicament I find myself in today is that of course we are now trying to predict what may happen in the future, in so far if HMRC are successful in their challenge to my Lord's number 1 decision, if I can call it that, that would actually fuel, if we are required to go and challenge the costs decision from today, the submission I have made today. I must make that submission today so it cannot be suggested it was not fairly put before you today.

MR JUSTICE SINGH: I understand why you are making it. Yes, is there anything else?

MR GLOVER: No, my Lord. This is a novel proposition, I accept that, but that is why I am advancing it.

MR JUSTICE SINGH: Thank you very much.

Do you want to say anything?

MR PUZEY: It is a very curious position that my learned friend is in where he says your Lordship was right in March to award them costs, but you would be wrong today to award the Commissioner's costs. It does not make sense. Mummery LJ distinguished Stankiewicz in no uncertain terms in the Eastenders costs decision, and we say that having succeeded in March (Inaudible) there is no reason why the Commissioner should not be treated in the like way today.

MR JUSTICE SINGH: I am going to award the defendants' costs against the claimant. It seems to me that costs should follow the event, as is normal. I do not regard it as being in any way unfair or an infringement of Article 6 of the Convention rights as set out in schedule 1 to the Human Rights Act 1998 for the claimant to have to pay the defendant's costs having brought this challenge and failed in that challenge. That is the normal principle in the Administrative Court.

The claimant's argument is premised on the assumption that I was wrong in the decision about costs which I made after my judgment in March of this year on an earlier claim for judicial review. If I was wrong, it will be a matter for others to say so in due course, but for the time being I proceed on the basis that I was right in that costs order. It would follow that there will be no inequality in the positions of the claimant or the defendants. If the claimant had won today, I have no doubt it would be seeking its costs. That is a hypothetical scenario, but since the claimant has lost it is just, in my view, that it should pay the defendant's costs.

Now, do you want to say anything about the sum?

MR GLOVER: My Lord, we would ask for it to go by way of detailed assessment.

MR JUSTICE SINGH: Why? This has been a relatively short hearing and you have had a summary assessment schedule served on you.

MR GLOVER: We have no summary, I am being told. I certainly have not seen one.

MR PUZEY: My instructions are that it was served.

MR JUSTICE SINGH: I had it before the hearing on Wednesday.

MR PUZEY: I can forward it to my learned friend from my electronic device now.

MR JUSTICE SINGH: Would it be better if I simply say: detailed assessment if not agreed?

MR PUZEY: Yes.

MR JUSTICE SINGH: Very well. I will order the defendants' costs to be paid by the claimant to be the subject of detailed assessment if not agreed. Is there anything else?

MR GLOVER: My Lord, on my feet I will ask for leave to appeal the decision that has just been handed down. My Lord, the application is made on a number of bases, not least dealing with the last issue first: the costs issue. The thrust of the submission is that it is clear, we know, from the last occasion that HMRC are intending with vigour to pursue the number 1 decision of my Lord, and also the costs decision that came slightly later. The outcome of that decision, or whatever the court decides on both number 1 and costs from number 1, may well impact upon the decision you have reached today and it seems sensible, and this is just a global submission, for this matter to also be considered by the Appeal Court if and when, indeed when, my learned friend's appeal comes on. I think the date was given of February.

MR JUSTICE SINGH: Certainly on the substantive point. I am not sure that the costs point is going to be heard at the same time, although speaking for myself it would appear to be sensible if everything should be heard at the same time. It is a little bit unfortunate that the proceedings became separated in this court for reasons that we do not need to go into now.

MR GLOVER: Indeed, my Lord. There is another cog in those works, which is you will be aware of the decision in Wolverhampton, which although the majority is in my client's favour is at the moment the subject to an application for case stated. It may be that that can also, if that moves forward, that that can be linked so that all of these matters (Inaudible) all at the same time and have gone their separate ways.

MR JUSTICE SINGH: That is going to be difficult. That will go to the Divisional Court.

MR GLOVER: Indeed, my Lord. It might be that we would require some of the court's assistance to bring them all together under the same umbrella (Inaudible).

MR JUSTICE SINGH: I cannot really deal with that. Where I might be able to help you is if I gave permission in this case, then at least there is some prospect of this being able to get to the Court of Appeal at the same time as the other cases.

MR GLOVER: I did not mean to confuse the issue today. I thought it was worth mentioning that there is the potential hearing in the Wolverhampton matter as well, trying to bring all the matters back together at some stage (Inaudible).

MR JUSTICE SINGH: So do you want to appeal both against my decision on substance and my decision on costs?

MR GLOVER: My Lord, yes. The costs decision as I was indicating a moment ago in my substantive submissions on costs may be fuelled if your early decision is overturned.

MR JUSTICE SINGH: You say there is a real prospect of success and in any event there is the compelling reason, not least that if there is to be some coherence introduced into this area of law it would be better if all of these things could be aired before the Court of Appeal in one go. Is that the argument?

MR GLOVER: It is that. That is the argument in a nutshell. That is the general argument on the substantive decision as well. I can go through it in detail.

MR JUSTICE SINGH: I understand.

What do you say about permission, Mr Puzey?

MR PUZEY: This case was quite different to the case before you in March for this reason: there the Commissioner conceded that the reasons given were unlawful, so we were starting on the back foot. Here your Lordship has found that those reasons were (a) lawful and (b) if they were not you would not have exercised your discretion in any event. It is quite a different situation and the Commissioner's submission is the claimant in this case should make its application to the Court of Appeal, because there is no real prospect of success on the facts of this case.

MR JUSTICE SINGH: What about there being another compelling reason? In other words, that it would be more sensible for it all to be heard in one go. Because the danger is, if I refuse permission now and they have to go to the Court of Appeal, suppose they get permission at Christmas time it may be too late then for it to be listed in February.

MR PUZEY: One, it is within the claimant's hands to move things along as speedily as they can; two, that assumes that the Court of Appeal would grant leave. As I said, in this case, this particular case, it is quite distinct from the existing issue.

MR JUSTICE SINGH: I understand.

Do you want to say anything in reply?

MR GLOVER: My Lord has heard what I said already. Of course we will be dealing with them to an extent in a separate manner and of course my Lord will understand that the defendant takes issue with the judgment in this decision where it has been found that a common sense approach says that a lawful reason was given: no duty has been paid. You will recall Mr Jones' submissions that even today the officer is not actually making that positive averment, they are equivocal. So we will be seeking to challenge the evidential basis of that finding. We can look at the detail of the grounds of appeal, but the overriding picture is these were all born out of one event, in short, when these goods were taken. There is going to be appeal on this, it is going to be pursued. My learned friend has his appeal already in existence from a very similar case, factually identical almost, certainly the background facts being identical. My Lord, the claimant endorses the view made by this court at the very least there is a compelling reason that it should all move forward at last together.

MR JUSTICE SINGH: I come to the view that there is no real prospect of success, but I am going to grant permission on the basis that there is some other compelling reason. In the circumstances of this case, it seems to me that the Court of Appeal should have the opportunity to consider all the issues arising from what is, in effect, one set of facts in one go. Obviously, matters of listing in the Court of Appeal are not for me, so the mere fact that I have granted permission today does not mean that these matters will necessarily be heard together, but at least it makes that prospect slightly more easy depending on the listing situation in the Court of Appeal. That will be a matter for others and for the parties to investigate.

Is there anything else?

MR GLOVER: No, my Lord.

MR JUSTICE SINGH: Thank you both for your assistance, and could you pass on my thanks to Mr Jones as well.

MR GLOVER: My Lord.