E00870
	PROCEDURE  — extension of time for service of notice of appeal — seizure of excise goods and borrowed car — restoration refused — review requested but not carried out within 45-day period — companions successful in challenging seizure in magistrates’ court — Respondents’ refusal to reconsider seizure of Appellants’ property — whether reasonable to extend time for service of notice of appeal — interests of justice — extension granted in particular circumstances of the case

MANCHESTER TRIBUNAL CENTRE

 
 	
	TONI COLLINS and LESLIE BUTE	Appellants

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	 Colin Bishopp  (Chairman)

Sitting in private in North Shields on 16 March 2005

Simon Goldberg, counsel, instructed by James E Baird, Solicitor, for the Appellants

Vincent Ward, counsel, instructed by the Solicitor’s office for HM Customs and Excise for the Respondents 

	© CROWN COPYRIGHT 2005

REASONS FOR DIRECTION

1.	On 13 May 2001, the Appellant Leslie Bute and his wife arrived at the French entrance to the Channel Tunnel at Coquelles in a Chrysler Voyager car, belonging to their daughter, the Appellant Toni Collins.  The car contained substantial quantities of excise goods.  Mr and Mrs Bute were not able to satisfy the Customs officer who intercepted them – I do not know the reason for the interception – that the goods were for their own use and the officer proceeded to seize the goods and the car.  Travelling with Mr and Mrs Bute, though in their own car, were a Mr and Mrs Leng; Mr Leng is, I understand, Mr Bute’s cousin.  They too were intercepted and were found to have excise goods in their car and for the same reason their goods and car were seized.
2.	On 24 May 2001, Mrs Collins wrote to the Commissioners, requesting the restoration of her car.  She did not keep a copy of her letter and for some unaccountable reason Customs, although they accept that they received it, cannot find the original.  There is some dispute whether the letter, in addition to seeking restoration, also put the Commissioners on notice of a challenge to the validity of the seizure which, if made, would have required the Commissioners to institute condemnation proceedings in the magistrates’ court.  They did not institute such proceedings but instead wrote to Mrs Collins asking for evidence that she was the owner of the car.  At this stage, Mrs Collins and Mr Bute instructed solicitors.  The solicitors provided the evidence but restoration of both goods and car were refused.  A review was requested, but it was not carried out within the requisite 45 days and accordingly the refusal to restore was deemed to be upheld.  However, that fact was not communicated to the solicitors, as it should have been when, or shortly after, the 45 day period expired in September 2001.  In fact, the solicitors were not informed of the outcome of the review until they made further enquiries; the Commissioners’ letter stating that the decision was deemed to be upheld was dated 25 January 2002.  
3.	In the meantime, Mr and Mrs Leng had effectively challenged the seizure of their car and goods and the Commissioners had brought condemnation proceedings.  They were heard in the appropriate magistrates’ court on 2 May 2002.   I deduce that in January 2002, Mrs Collins’ and Mr Bute’s then solicitors were aware of the condemnation proceedings since, as I was told, they advised them to take no further action in their own case until the outcome of those proceedings was known.  In any event they could not then afford to pay the solicitors to take the matter any further.
4.	In fact, the solicitors should have advised them to lodge notice of appeal with this tribunal, and to do so within 30 days after 25 January 2002.  Notice of appeal was not served until November 2003 and, because of the lengthy delay, Mrs Collins and Mr Bute need a direction from the tribunal extending their time for lodging notice of appeal.  The Commissioners oppose the granting of any such extension.
5.	Vincent Ward, who appeared for the Commissioners before me, argued that, notwithstanding the solicitors’ advice, the Appellants should have lodged notice of appeal and, if they could not afford to pay the solicitors, they should have pursued the appeal themselves, as many others in their position do.  Certainly some criticism of the solicitors is warranted and if, by reason of their incorrect advice, Mrs Collins and Mr Bute have suffered loss, they may feel it appropriate to take the matter up with the solicitors; but the criticism of them for following the advice they were given seems to me entirely misplaced.  Unless it is obvious that a solicitor has made a mistake, his client cannot, in my view, be criticised for following his advice.
6.	The condemnation proceedings instigated by Mr and Mrs Leng were decided by the magistrates in Customs’ favour but Mr and Mrs Leng appealed that decision to the Maidstone Crown Court which, on 18 June 2003, allowed their appeal in part; the seizure of the car was determined to have been unwarranted and, it appears, the court declined to condemn some of the goods.  At that this point, or soon after, Mr Bute and Mrs Collins consulted their present solicitor, Mr Baird (who had represented Mr and Mrs Leng), and he corresponded on their behalf with Customs.  He pointed out that Mr and Mrs Bute’s circumstances were similar, if not identical, to those of Mr and Mrs Leng and he reminded them that Mrs Collins, who had not been present at the time of seizure, was the owner of the vehicle.  Mr Baird was persistent in the face of replies which I can describe only as stonewalling.  Mr Ward again said that he should have lodged notice of appeal, even if only as a protective measure, while he carried on the correspondence.  In that I agree with him and, if it were not for the factors to which I will shortly come, I would not have thought it appropriate to excuse the additional delay, and permit the lodging of an appeal about 21 months out of time.   I decided, however, that in the interests of justice I should grant the extension in this particular case.  
7.	The law in this area is extraordinarily complicated.  To understand it, one needs some familiarity with a European Directive, at least three Acts of Parliament (depending on the nature of the case) and several statutory instruments.  There is an increasing body of decisions, not only of this tribunal but of the higher courts.  The Court of Appeal admits to some difficulty with parts of the law (see particularly the comments of Buxton LJ and of Carnwath LJ in Gascoyne v Customs and Excise Commissioners [2005] 2 WLR 222).  The relationship between condemnation proceedings and restoration requests, and the extent of this tribunal’s jurisdiction, are particularly troublesome matters.  It is in my view quite understandable that a solicitor in private, general practice finds the legislation difficult.  It is virtually impossible for a layman without any legal training to understand it fully.  
8.	In some cases, Customs officers dealing with correspondence from persons aggrieved by the seizure of their goods, even if they refuse restoration, are at least helpful in steering them to the correct channels for challenging the decision.  In other cases, of which this is an example, they are not.  It is surprising that the first letter was lost, though I accept it is no more than an accident.  I recognise that in the summer of 2001, the Commissioners were required to carry out an unexpectedly large number of reviews, and I view it as unfortunate rather than worse that the review was not carried out in this case before the time limit expired.  But it is extraordinary and, in my view, difficult to excuse, that Customs simply failed to tell the Appellants or their solicitors that no review had been carried out until the solicitors made further enquiries some months later.  When Mr Baird took up the matter on the Appellants’ behalf, the response was, as I have already said, stonewalling.  Although Mr Baird did not, in terms, seek a further review (as to which see Finance Act 1994, section 14(5)), that is the effect of what he was doing; yet it is quite clear that the officers responding to his correspondence took the view that because there had been no appeal against the deemed review decision upholding the refusal to restore, the matter was irrevocably closed.  
9.	I recognise that it is necessary to achieve finality of claims for restoration of goods and vehicles and even unrepresented claimants cannot expect exemption from time limits.  Had the Commissioners behaved in an exemplary fashion in this case, there would be no basis on which the Appellants could realistically have expected an extension of time for lodging the notice of appeal, at least of the length which they are in fact seeking.  But when one takes into account the complications of the legislation and the manner in which the Commissioners conducted themselves in this case, it seems to me that justice demands that there should be an extension.  Not only did the Commissioners fail to carry out the review within the requisite timescale (a fact which of itself weakens their position) but they did not advise the solicitors then acting of their failure until some months later.  I am aware of the scale of illicit importations of excise goods which the Commissioners are required to combat and I quite understand that the task imposed upon them is difficult.  The remedies available to them, and of which they avail themselves, are, however, draconian.  It may well be necessary for remedies of such severity to be applied but they must, not least because of their severity, be applied fairly and even-handedly.   Here, Mrs Collins has had her vehicle seized, in her absence, and her protests, whatever their merits, have been barely considered; indeed, one could fairly say they have been simply brushed aside.  The Commissioners have applied, or must at least be assumed to have applied, the law as they understood it to be in 2001 but, as the Court of Appeal has indicated, particularly in Lindsay v Customs and Excise Commissioners [2002] 1 WLR 1766 and R (Hoverspeed) v Customs and Excise Commissioners [2003] QB 1041, the law was not as they then understood it to be, and their practice at the time was to exclude, as immaterial, factors which they should have taken into account, in particular proportionality.  Mr and Mrs Leng, in circumstances I have to assume for present purposes to be similar to those of Mr and Mrs Bute, were successful in overturning the seizure of their car yet the Commissioners refused even to consider the possibility that they should, in consequence, revisit the seizure of Mrs Collins’ car.  I acknowledge that the delay is long, and it is entirely the responsibility of the Appellants and their solicitors, but it seems to me that it would be manifestly unjust, in the circumstances of this case, to exclude them altogether from any remedy.
10.	For those reasons I direct that the time for notice of the service of the notice of appeal shall be extended to 14 November 2003, the date on which it was in fact received by the tribunal.  The Commissioners are to serve the statement of case and their list of documents by 20 May 2005.  
11.	Simon Goldberg, counsel for the Appellants, sought a direction in respect of costs.  The Appellants have, of course, succeeded in their application, but they were seeking relief from the consequences of their own failings and there are no grounds upon which I could properly make a direction for costs in their favour.
12.	Finally, I observe that the letter from the Commissioners to the Appellants’ then solicitors, informing them that a review had not been carried out within the allotted time, refers only to a review of the decision not to restore Mrs Collins’ car.  It may be that the review of the refusal to restore Mr Bute’s goods was dealt with separately.  I merely comment that he will be required to demonstrate that he did seek a review since it is not within the tribunal’s power to excuse that requirement, nor can it extend the time within which the review must be requested, which has long since expired.
13.	The parties agreed that these reasons might be made public, and so I direct.

COLIN BISHOPP
CHAIRMAN
Release Date: 22 March 2005
MAN/03/8182

££Collins & Anor v Customs and Excise [2004] UKVAT(Excise) E00870 (22 March 2005)