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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> HM Revenue and Customs v First Stop Wholesale Ltd & Anor [2013] EWCA Civ 183 (12 March 2013) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/183.html Cite as: [2013] EWCA Civ 183 |
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ON APPEAL FROM the Queen's Bench Division, Administrative Court
The Hon. Mr Justice Singh
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LEWISON
and
LORD JUSTICE BEATSON
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Commissioners for Her Majesty's Revenue and Customs |
Appellant |
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- and - |
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First Stop Wholesale Ltd First Stop Wholesale Ltd - and - Commissioners for Her Majesty's Revenue and Customs |
Respondent C1/2012/2759 Appellant Respondent |
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Hearing date : 22 February 2013
Further submissions: 27 February and 6 March 2013
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Crown Copyright ©
Lord Justice Beatson :
Introduction
Eastenders No 1
"if reasonable suspicion that goods are liable for forfeiture is the test for determining the legality of detention, HMRC may be liable on the basis that any suspicions are not reasonable, even though it turns out that the goods are in fact liable to forfeiture. Conversely, if the test is whether goods are in fact liable to forfeiture, detention will be lawful even if it was not in fact reasonable for HMRC to suspect that they were at the time of detention, and indeed even if HMRC justifies forfeiture on some basis not known at the time of detention."
"… there are wide ranging grounds for forfeiture in the legislation, not confined to non-payment of duty; and it would seem that HMRC could invoke any such ground, whether or not suspected at the time, when subsequently saying that the goods were (in fact) liable to forfeiture: quite apart from relying on the protection given in s.144."
Eastenders No 2
"The only condition stipulated by s.144(2) is the objective one that there were reasonable grounds for detaining the goods. That stipulation assumes that the detention was unlawful, as, if the detention was lawful, there would be no occasion for HMRC to invoke s.144(2) . Nothing is said in the section about whether the reason relied on at the time of detention is a potentially lawful reason or a reason which is unlawful per se. In any event, it is difficult to see what difference in substance there is between the existence or non-existence of reasonable grounds for detention of the goods and the different kinds of reason for the detention of the goods. The reasonable grounds in this case were the reason for detention."
First Stop No 1: 27 March 2012
"35. In the present context it seems to me that what the Court of Appeal has decided in Eastenders is that a condition precedent for the power to detain goods is that they are in fact liable to forfeiture, the same condition as for the power of seizure. But that is not necessarily a sufficient condition for the lawful exercise of the power to detain goods. Just as in the context of false imprisonment, either in the context of immigration detention which was considered in Lumba or in the context of the power of arrest which was considered in Christie v Leachinsky, the existence of a power does not necessarily mean that it must be exercised. It follows from well known principles of administrative law - Wednesbury principles as Lord Dyson referred to them in Lumba - that a discretionary power must be exercised lawfully. If it turns out that it was exercised unlawfully, as it seems to me, it would not matter, by way of analogy with false imprisonment cases, that the defendants could have exercised the power lawfully on some other basis.
36. In the present case, in my judgment, the claimant has succeeded in establishing on the basis of the decision of the Court of Appeal in Eastenders that the purported exercise of the power to detain goods was flawed by an error of public law. And, in principle, it would be right that a declaration should be granted to reflect that success."
First Stop No 2: 16 July 2012
First Stop No 3: 5 October 2012
Discussion
Lord Justice Lewison:
Lord Justice Jackson: