Skye Forecourt Limited v Highland Council Trading Standards

On 27 August 2024 Case Management Directions (“CMD”) were issued giving the Appellant notice that if the Tribunal did not have jurisdiction it must strike out the appeal. The Appellant was given an opportunity to make representations.

The Tobacco and Primary Services (Scotland) Act 2010 (“the Act”) is devolved legislation and under Part 3 the Highland Council Trading Standards, the Respondent has a duty to enforce the Act.

The Appellant is a registered tobacco and nicotine vapour product retail business. Three Fixed Penalty Notices (“FPN”) was issued to the Appellant for offences under the Act which took place on 4 and 5 June 2024. The FPNs relate to a criminal offence committed by the Appellant. The FPN remain outstanding and there is a pending application to the Sheriff Court.

Muhammad Umer Shahbaz, on behalf of the Appellant, in representations submits that the First-tier Tribunal does have jurisdiction under Schedule 10 paragraph 5 of the Consumer Rights Act 2015 (“CRA”).

Schedule 10 concerns the imposition of financial penalties relating to secondary ticketing and is relevant only to a breach of a duty imposed by Chapter 5 of Part 3 of the CRA which has no connection to the Act under which the FPN were issued in this case and provides no jurisdiction for appeal to the First-tier Tribunal.

The Appellant asserts that the Tribunal should issue CMD under the powers contained in Rule 5(3)(k) of the Rules. The Tribunal has no jurisdiction in this matter and it is not appropriate in those circumstances to transfer the proceedings to another court or tribunal. The FPN were issued for a criminal offence for which the Sheriff Court has jurisdiction.

There are grounds to strike out the proceedings because the Tribunal does not have jurisdiction.