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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Feakins & Anor v Department for Environment, Food & Rural Affairs [2006] EWCA Civ 699 (08 June 2006) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2006/699.html Cite as: [2006] EWCA Civ 699 |
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COURT OF APPEAL (CIVIL DIVISION)
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE SMITH
and
LORD JUSTICE MOSES
____________________
(1) KEVIN ANDREW FEAKINS (2) SARAH BRIDGET MERET FEAKINS |
Appellants |
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- and - |
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THE DEPARTMENT FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS (ACTING BY ITS EXECUTIVE AGENCY, THE RURAL PAYMENTS AGENCY, FORMERLY THE INTERVENTION BOARD FOR AGRICULTURAL PRODUCE) |
Respondent |
____________________
Ms Sarah Lee (instructed by the Legal Division of the Rural Payments Agency) for the Respondent
Hearing date : 4 May 2006
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Crown Copyright ©
Lord Justice Moses :
Introduction
The Clawback System
A Taylor v Lawrence Application
"The Court of Appeal….will not re-open a final determination of any appeal unless –
(a) it is necessary to do so in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to re-open the appeal;
(c) there is no alternative effective remedy."
"so grave as to overbear the pressing claims of finality in litigation." (paragraph 21)
It must be shown, not only that there is a real possibility that the result reached in earlier proceedings was erroneous, but that:-
"there exists a powerful probability that such a result has in fact been perpetrated." (paragraph 22)
The court held that although that was a necessary condition, it was not sufficient; the court would also have to consider the extent to which the complaining party was author of his own misfortune and that there was no alternative remedy.
Events leading to hearing of the Court of Appeal in "clawback action" on 9/10 October 2001
"sheep meat exports in previous years incorrectly exempted for clawback.
Exemption arose because the export declaration indicated goods were exempt from clawback but subsequently you did not supply the supporting CES form. If you are able to produce these exemption forms these charges will be deducted from the overall sum."
"they clearly have already received the CES forms from either or both HMCE and MLC."
The hearing before the Court of Appeal on 9/10 October 2001
"It is a very rum suggestion, if I may put it on that basis. Nobody would ever succeed on their exemptions…"
And, shortly after:-
"It is a very remarkable situation if you are really saying here he was, entitled to exemption, exemption was impossible to achieve because the forms were never in his power to produce…"
It is apparent that, on the first day of the appeal, both IBAP's counsel and thus, presumably, IBAP, and the Court of Appeal were wholly unaware of the correct system in place at the time. The Court of Appeal was, as subsequent events show, never disabused.
"The scheme leaflet ET2, paragraph 59, required exporters to cross-refer the C1220 with the unique sequential serial number of the CES3, by entering that serial number into Box 44 of the C1220 form. Other exporters complied with that requirement, Mr Feakins did not." (My emphasis).
This evidence was untrue. During the course of the negligence action before Jack J Mr Basham accepted in cross-examination that none of the other exporters had complied with the requirement. Mr Basham agreed and regretted misleading the court in that respect. There was, in reality, no basis for suggesting to the Court of Appeal that Mr Feakins had behaved in any different way from other exporters.
"The export declaration indicated goods were exempt from clawback."
In fact, he continued in the footnote:-
"No such indication was present on the export declarations. This statement appears to have arisen from an administrative error resulting from a confusion of certain codes on the C1220 declarations."
The effect on the Court of Appeal
"It seems an extraordinary coincidence that neither the MLC copy nor the Customs' copy came back to IBAP."
Simon Brown LJ responded:-
"With regard to other exporters of exempt consignments they do."
Simon Brown LJ concluded the discussion with the suggestion that the court had heard enough about Mr Feakins. He said to counsel for the appellants that IBAP was entitled to lay down its own rules as to how they were to be satisfied of exempt consignments for export. It was subsequently suggested that in every other case:-
"They had at least got such a document as they required. True, it had not been properly signed. How come there were never any others? This is not the position with any other trader who was making exempt exports. How come it justifies to Mr Feakins (sic) and apparently involved not just one body Customs getting it wrong but also the other people getting it wrong?" (My emphasis).
"take one last look at the material now produced on Mr Feakins' behalf and to consider whether or not at this final stage they are prepared to afford some degree of ex gratia concessionary relief." (see paragraph 42)
I am persuaded that the Court of Appeal was misled and that had it known the true position it is highly likely that it would have permitted the Feakins to set aside the summary judgment and defend the counterclaim. It is plain from Simon Brown LJ's approach, from which the other Lord Justices did not dissent, that despite what appeared to him to be the Feakins' inactivity in responding to the counterclaim, he was concerned as to their liability to pay clawback. Had he not been concerned, and was merely interested in the legal point as to the proper construction of the regulation, there would have been no point in suggesting that IBAP should investigate the matter overnight, still less in his reiterated expression of concern at the close of the appeal. The Court of Appeal clearly believed that clawback had been sought because the export documents, the C1220s, contained no indication that the consignments were exempt from clawback. This was simply untrue. As it now turns out, 75 out of 77 of the documents did indicate that the consignments were exempt.
The Response of IBAP
IBAP's review
Damages received as a result of the negligence action
Conclusion
Lady Justice Smith:
Lord Justice Dyson: