THE ADVOCATE GENERAL FOR SCOTLAND AGAINST (FIRST) JOHN GUNN AND SONS LIMITED AND (SECOND) JOHN GUNN AND SONS HOLDINGS LIMITED [2018] ScotCS CSOH_39 (13 April 2018)

THE ADVOCATE GENERAL FOR SCOTLAND AGAINST (FIRST) JOHN GUNN AND SONS LIMITED AND (SECOND) JOHN GUNN AND SONS HOLDINGS LIMITED [2018] ScotCS CSOH_39 (13 April 2018)

The amount to be recovered from the first defender is the sum equal to the Aggregates Levy not paid as a result of the unlawful exemption, plus interest, as required by the Final Commission Decision. The passing on of the advantage to customers is irrelevant. The Human Rights Act 1998 does not prevent recovery due to statutory obligations under the European Communities Act 1972. There is no relevant basis for joint and several liability of the second defender or for a claim of unjust enrichment at common law.

Citation
[2018] ScotCS CSOH_39
Parties
Pursuer: The Advocate General for Scotland; First Defender: John Gunn and Sons Limited; Second Defender: John Gunn and Sons Holdings Limited
Jurisdiction
Scotland
Judgment Date
13 April 2018
Procedural Posture
Civil Recovery of Unlawful State Aid / Procedure Roll Hearing on Relevancy Pleas
Outcome
Defenders' pleas on quantum, human rights, unjust enrichment, and joint and several liability rejected. Action proceeds against the first defender for recovery of unlawful State aid as quantified by the pursuer.
Legal Topics
State Aid Recovery, Aggregates Levy, Unlawful Exemptions, Human Rights Act 1998, Joint and Several Liability, Unjust Enrichment
European Union Law Tax Law Administrative Law Human Rights Law State Aid Recovery Aggregates Levy Unlawful Exemptions Human Rights Act 1998 +2 more

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Parties

The Advocate General for Scotland

Pursuer

John Gunn and Sons Limited

First Defender

John Gunn and Sons Holdings Limited

Second Defender

Procedural Posture

Civil Recovery of Unlawful State Aid / Procedure Roll Hearing on Relevancy Pleas

Legal Issues

  1. 1 What is the correct quantification of unlawful State aid to be recovered from the defenders?
  2. 2 Does the passing on of the advantage to customers affect the amount recoverable?
  3. 3 Is the recovery of the full amount compatible with the Human Rights Act 1998?

Ratio Decidendi

The amount to be recovered from the first defender is the sum equal to the Aggregates Levy not paid as a result of the unlawful exemption, plus interest, as required by the Final Commission Decision. The passing on of the advantage to customers is irrelevant. The Human Rights Act 1998 does not prevent recovery due to statutory obligations under the European Communities Act 1972. There is no relevant basis for joint and several liability of the second defender or for a claim of unjust enrichment at common law.

Court Disposition

Defenders' pleas on quantum, human rights, unjust enrichment, and joint and several liability rejected. Action proceeds against the first defender for recovery of unlawful State aid as quantified by the pursuer.

Orders

  • The defenders' challenge on quantum fails; the amount to be recovered is the unpaid Aggregates Levy plus interest.
  • The Human Rights Act 1998 does not bar recovery in these circumstances.