Tanfield Chambers in the Supreme Court
15th November 2013
Marc Glover and Niraj Modha are set to appear in the Supreme Court on 27-28 November 2013.
Marc Glover and Niraj Modha are instructed by the Respondents in R (on the application of Eastenders Cash and Carry plc and others (Respondents) v The Commissioners for Her Majesty’s Revenue and Customs (Appellant) (“Eastenders”) – UKSC 2012/0163.
Marc Glover and Niraj Modha, led by James Pickup QC, are instructed by the Appellant in R (on the application of First Stop Wholesale Limited) (Appellant) v The Commissioners of Her Majesty’s Revenue and Customs (Respondent) (“First Stop”) – UKSC 2013/0094.
The first appeal, Eastenders, concerns the interpretation of s.139(1) Customs and Excise Management Act 1979 (“CEMA 1979”). Section 139(1) – before it was amended – provided the Commissioners of Her Majesty’s Revenue and Customs (“HMRC”) with a statutory power to detain and seize goods that are “liable to forfeiture”. Goods are liable to forfeiture in a number of circumstances.
The Court of Appeal ( EWCA Civ 15), reversing the judgment at first instance, held that the term “liable to forfeiture” (which is not defined in CEMA 1979) meant that there had to have been a breach of a relevant obligation (for example the obligation to pay duty) before the goods could be detained or seized. It is insufficient if HMRC only reasonably believed or suspected that a breach of the relevant obligation had occurred, and it was not for the courts to fill any lacuna created by the legislation. Section 139 CEMA 1979 has since been amended by s.226 Finance Act 2013.
The second appeal, First Stop, concerns both the interpretation of s.139(1) CEMA 1979 as well as two further issues: the application of public law principles to the exercise of HMRC’s statutory powers, and the operation of the “costs shield” in s.144 CEMA 1979.
The Court of Appeal ( EWCA Civ 183), reversing the judgments at first instance, held that whilst public law principles are applicable to decisions to detain and seize goods that are liable to forfeiture, HMRC is not under a duty to provide reasons for detaining the goods at the time of detention. Furthermore, where proceedings are brought against HMRC by the owner of goods detained by HMRC, s.144(2) CEMA 1979 is a statutory bar on the court ordering HMRC to pay the owner’s costs of the proceedings, where the reason for detention is found to have been unlawful but the court is satisfied that there were reasonable grounds to detain the goods.
Click on the following Lawtel links for the judgments of the Court of Appeal in Eastenders  EWCA Civ 15 and First Stop  EWCA Civ 183.
The two appeals will be streamed online. Click here to find out more on the Supreme Court web site. Further information will be available on the Tanfield Chambers web site following the conclusion of the hearings.