OWD Ltd trading as Birmingham Cash and Carry (In Liquidation) and another v Commissioners for Her Majesty’s Revenue and Customs

OWD Ltd trading as Birmingham Cash and Carry (In Liquidation) and another v Commissioners for Her Majesty’s Revenue and Customs

HMRC does not have power under section 88C of ALDA or section 9 of the 2005 Act to grant temporary approval to a wholesaler to trade pending appeal if HMRC is not satisfied that the person is fit and proper, even for a limited period or subject to conditions. The High Court may, in exceptional circumstances, grant injunctive relief to protect Article 6 ECHR rights, but only where the appeal would otherwise be rendered nugatory, and only if the evidence meets a high threshold.

Parties
Appellant/respondent: OWD Ltd trading as Birmingham Cash and Carry (In Liquidation) and another; Respondent/appellant: Commissioners for Her Majesty’s Revenue and Customs
Jurisdiction
England and Wales
Judgment Date
19 June 2019
Procedural Posture
Appeal (from Court of Appeal, England and Wales) / Supreme Court Judgment
Outcome
HMRC's appeal allowed; wholesalers' appeal dismissed.
Legal Topics
Statutory Interpretation, Judicial Review, Injunctive Relief, Fit and Proper Person Test, Alcohol Wholesaler Registration Scheme, Article 6 ECHR (right to Fair Trial)
Administrative Law Tax Law Regulatory Law Human Rights Statutory Interpretation Judicial Review Injunctive Relief Fit and Proper Person Test +2 more

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Parties

OWD Ltd trading as Birmingham Cash and Carry (In Liquidation) and another

Appellant/respondent

Commissioners for Her Majesty’s Revenue and Customs

Respondent/appellant

Procedural Posture

Appeal (from Court of Appeal, England and Wales) / Supreme Court Judgment

Legal Issues

  1. 1 Whether HMRC has power under section 88C of the Alcoholic Liquor Duties Act 1979 to grant temporary approval to trade pending appeal to the FTT
  2. 2 Whether HMRC has power under section 9 of the Commissioners for Revenue and Customs Act 2005 to grant such temporary approval
  3. 3 Whether the High Court can grant interim relief to preserve the effectiveness of an appeal to the FTT

Ratio Decidendi

HMRC does not have power under section 88C of ALDA or section 9 of the 2005 Act to grant temporary approval to a wholesaler to trade pending appeal if HMRC is not satisfied that the person is fit and proper, even for a limited period or subject to conditions. The High Court may, in exceptional circumstances, grant injunctive relief to protect Article 6 ECHR rights, but only where the appeal would otherwise be rendered nugatory, and only if the evidence meets a high threshold.

Court Disposition

HMRC's appeal allowed; wholesalers' appeal dismissed.

Orders

  • Court of Appeal's order remitting the question of temporary approval to HMRC quashed.
  • Declaration that HMRC has no power under section 88C or section 9 to grant temporary approval in these circumstances.