Lawyers Serving Individuals and businesses

Our Successes

  a summary of our successes....

The Commissioners for Her Majesty’s Revenue & Customs –V- Smart Price Midlands Limited & Hare Wines Limited [2017] UKUT 0465 (TCC)

Hare Wines Limited instructed Rainer Hughes to file an appeal to the First Tier Tribunal Tax Chamber (FTT) regarding their application for an Alcohol Wholesaler Registration Scheme (AWRS) licence which had been refused

After the appeal was issued the FTT directed that HMRC disclose all material that was considered by the decision making officer. HMRC sought to vary this direction by way of an application. HMRC argued that it should only be required to provide the documents that it wishes to rely upon (which is the starting point under the Tribunal rules). Hare Wines Limited (and five other Appellants) submitted that HMRC ought to be required to disclose all material that was considered by the decision making officer. The FTT Judge Sinfield refused to vary the directions.

HMRC appealed Judge Sinfield’s decision to the Upper Tribunal Tax & Chancery Chamber, and the other cases before the FTT were stayed pending the outcome of the Upper Tribunal’s decision.

The Upper Tribunal heard the appeal on 25 October 2017 and Rainer Hughes instructed Counsel, David Bedenham from 11 KBW to represent Hare Wines Limited at the hearing.

The Upper Tribunal dismissed HMRC’s appeal. The Upper Tribunal agreed with the FTT that the interests of justice required HMRC to provide all material that was considered by the decision maker (unless HMRC can show that the documents are especially sensitive or the provision would be disproportionate).

This is an important decision because it means that the Appellants in the FTT can now see everything that HMRC’s decision making officer saw when s/he refused their application. This will now assist the Appellants in advancing arguments that HMRC took into account irrelevant factors or failed to take into account relevant factors. The case will likely have ramifications for HMRC’s disclosure obligations in other AWRS (and WOWGR) cases.

A full copy of the judgment can be found here

Brandon Barnes v Eastenders Cash & Carry plc & Others v Crown Prosecution Service [2012] EW Misc 6 (CCrimC)

It has long been considered trite law that a Court appointed receiver will take his or her costs from the assets in the receivership. In the recent case of Brandon Barnes v Eastenders Cash & Carry, the Court (Underhill J) determined that, as an exception to the established rule, it would be a breach of a company's human rights if it had to bear the burden of a receiver's costs and expenses.

The applicant statutory receiver (R) applied for a consequential order for remuneration and expenses that had been incurred during his receivership over the first respondent parent company (E), which had lasted for c.2 months. . E had a turnover of c.£140M/annum and the sum in issue amounted to c.£1M. In earlier proceedings, without notice restraint orders and a receivership order had been made which encompassed all the assets held by E, in which two alleged offenders each held a 20 per cent shareholding. On appeal in those earlier proceedings the orders were quashed on the basis that no arguable case had been shown that E's assets were held by the alleged offenders (see: Windsor v CPS [2011] 1 W.L.R 1519, and the following link. However, it remained that R's remuneration and expenses were ordered to be paid out of receivership property by the lower court.

The issues in the present decision were whether (i) E's European Convention on Human Rights 1950 art.1 rights would be breached if E were to be held liable for R's remuneration and expenses; (ii) the Crown Prosecution Service was the party who ought to, and could, bear R's costs directly. E submitted that as the Court of Appeal had held that the restraint and receivership orders should never have been made, it could not be right that it, as an innocent third-party, should be liable for R's costs and expenses in any event. The Court found that it was able to "put to one side the preconception based on a century of practice", and find in favour of E on the novel human rights argument advanced.

The decision offers an excellent example of a case in which a rule or practice perceived as being set in stone, can be successfully argued against, or refined. Please see for example the recent Court of Appeal decision in Eastenders v HMRC [2012] EWCA Civ 15

Eastenders Cash & Carry & Ors and HMRC (Court of Appeal) Elias LJ, Mummery LJ and Davies LJ January [2012] EWCA Civ689, LTL 20/01/2012
Also referred to in the Convenience Magazine (enclosed article) and "pending" publication within "The Times" and Tax Journal.

Landmark judgment in relation to Vat & Excise Litigation in which a challenge was made as to the statutory interpretation of S.139 (1) of Customs and Excise Management Act 1979. Property rights of wholesalers and retailers being re-defined in which the Court held that "liable to forfeiture" is to be interpreted in its strictest sense and that HMRC can only detain alcoholic goods if they can demonstrate as an objective fact that duty had not been paid. The previous position being that HMRC needed to have "reasonable grounds to believe that duty may not have been paid", whilst detaining alcoholic goods.

Since 1979, there have been substantial challenges made by way of Judicial Review applications at the Administrative Court, Royal Courts of Justice in order to seek much needed clarification. As a result of the landmark judgment, the scope for any "abusive" detentions undertaken by HMRC will be halted significantly as the actions of HMRC will be subject to further accountability and scrutiny.

Media interest in relation to this leading judgment has been vast.

Click Here to learn more about this judgement.

Romasave (Property Services) Limited - Insolvency (Rolls Building) (2012) (pending substantive Trial)

The firm successfully obtaining a general/specific validation order against HMRC, whereby it is submitted that the company is a solvent company. The substantive Trial has been listed for February 2012, whereby the firm will be applying to set aside the Petition issued against the company, on technical grounds.

R (on the application of (1) Superbrew (Europe) Limited & Ors and (2) Bristol Crown Court and (3) HMRC [2011] EWHC 1899 (Admin), [2011] S.T.I 2376, LTL 17/8/2011

The firm challenging the successful application to vary a final order, in relation to a very large case handling a £50 million Vat and Excise fraud. The above case being a leading authority in this area.

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G S Wines Limited and HMRC (Administrative Court, Royal Courts of Justice) (2011) Wyn Williams J (CO/12109/2011) (pending substantive Trial, interim relief granted)

The Court finding that whereby there is an alternative statutory remedy in which the Claimant can apply for the re-instatement of a WOWGR licence (Ware-house Keepers and Owners of Warehoused Goods), and in the above matters, the First Tier Tribunal having the usual jurisdiction, the Administrative Court has the discretion to determine the matter, otherwise, if "exceptional circumstances" do exist. Such judgments provide a critical tool in which the Claimant is able to obtain prompt and effective relief, whereby the statutory remedy mechanism can be delayed and this case provided further authority for the case of R v HMRC ex parte Bosworth Beverages Limited (CO/3948/99)

Eastenders Cash & Carry Plc and HMRC (First Tier Tribunal - London) Judge Brannan (2011) [TC/2011/1851]

Significant and leading judgment obtained on appeal, whereby the firm successfully challenged the decision of HMRC to revoke a WOWGR licence (Ware-house Keepers and Owners of Warehoused Goods) upon the basis of previous "spent convictions". The Tribunal held that HMRC's decision was not reasonable nor proportionate in the circumstances. It was held that HMRC did not exercise its proper discretion of its review powers. This decision re-defined the "fit and proper" person's test, the underlying threshold test in which a WOWGR (Ware-house Keepers and Owners of Warehoused Goods) licence is granted.

The Governor and Company of the Bank of Ireland and Jaffrey and Gill (Third Party Disclosure (Chancery Division, 2011, Briggs J, HC11CO1448)

This was an application made by the Bank for seeking wide-ranging disclosure from a third party.

This was not a typical Norwich Pharmacal case where the Claimant could not identify the wrongdoer or therefore sue or otherwise vindicate his rights without disclosure of his identity. Nor is it a case like P v. T Ltd [1997] 1WLR 1309 where the Claimant does not know whether he has a cause of action without third party disclosure. Rather, the Bank claimed that the third party disclosure was in this case necessary (i) to identify the benefits wrongly received by the Defendant from the third party and others so that it can plead a detailed case and quantify its claim, and (ii) in aid of its freezing order against the defendant due to what the Bank describes as defendants non-compliance with a freezing order and search order.

Windsor and Ors and CPS (2011) (Court of Appeal) (Hooper LJ, Openshaw J and Sir Geoffrey Grigson) [2011] EWCA Crim 143, [2011] 1 WLR. 1519; [2011] 2 Cr. App R 7;2011] Lloyds's Rep. F.C 204; LTL 23/2/2011, Times, March 3, 2011 Please refer to article printed by Mr. Jonathan Fisher Q.C (Devereux Chambers) "Analysis Eastenders Cash & Carry: Lessons Learnt), 10 June 2011 in the tax journal).

The firm successfully obtaining a quashing order against a management receiver order obtained ex parte at the Central Criminal Court, on appeal at the Court of Appeal (Criminal Division). Orders set aside against alleged offenders in relation to a £50 million fraud. The Judgment formulated a leading case in Restraint. Media interest has been vast.

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Windsor and Ors and CPS (2011) Central Criminal Court Mackay J [2011]

The firm successfully resisting an application made by the Crown Prosecution Service for a Restraint Order against alleged offenders surrounding an alleged £50 million fraud. A highly sensitive case in which a compensation claim is contemplated by the alleged offenders.

Windsor and Ors and HMRC (2011) Administrative Court (Divisional Court) (President of the Administrative Court and Kenneth Parker J) [2011] EWHC 411 (Admin)

Please refer to article printed by Mr. Jonathan Fisher Q.C (Devereux Chambers) "Analysis Eastenders Cash & Carry: Lessons Learnt), article enclosed, 10 June 2011 in the tax journal).

The firm successfully obtaining a declaration that search warrants obtaining by HMRC were unlawful in relation to an alleged fraud consisting of £50 million. The firm seeking a judicial review application against HMRC and Bristol Crown Court. The Judgement formulating a leading authority within this area of law. Media interest has been vast.

Windsor and Ors and HMRC [2011] EWHC 842 (Admin)

The firm raising an application by Judicial Review (Criminal Division) as to the lawfulness of the police to issue conditions as to bail pursuant to Section 34 of Police and Criminal Evidence Act 1984. This case distinguished earlier cases of Torres [2007] EWHC 3213 (Admin).

Glenn & Co (Essex) Limited and Ors and HMRC (2011) Administrative Court (Laws LJ & Simon J) Administrative Court, November 16, 2011, [2011] EWHC 2998 (Admin)

The firm launching a judicial review application against a raid undertaken by HMRC. The firm attacking the search warrants obtained by HMRC in their ability to uplift material belonging to the Claimants. A highly sensitive case in which Windsor and Ors as an authority was relied upon.

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Glenn & Co (Essex) Ltd), R (on the application of) v HM Revenue & Customs [2010] EWHC 1469 (Admin). Please also refer to enclosed article "A Hard Drive" by Jonathan Levy 11.08.10, referring to this case)

Application made by the firm to consider the statutory interpretation of a "document" in accordance with the Customs and Excise Management Act 1939. This case distinguishing prior cases.

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Regina and Gojra and Ors (Court of Appeal) Gojra & Anor, R v, Court of Appeal - Criminal Division, August 06, 2010, [2010] EWCA Crim 1939

The firm successfully obtaining a re-trial in relation to a kidnapping and "ABH" on appeal against conviction at the Court of Appeal. Re-trial is currently taking place at Snaresbrook Crown Court. The re-trial was of substantial importance given that this re-trials are few and far between.

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Regina and Atwal ex p Barking Magistrates' Court (2009) Administrative Court (Criminal Division) [2009] EWHC 3862 (Admin), LTL 22/10/2010

The firm successfully raising an abuse of process argument against the Barking Magistrates' Court. Declaration obtained that a magistrates' court sitting in civil proceedings has jurisdiction to determine an abuse of process application. An leading authority within this area of law.

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Regina and Randhawa (2011) Snaresbrook Crown Court (Pardow HHJ)

The firm defending the Defendants in relation to criminal proceedings brought under the Proceeds of Crime Act 2002 by the Crown. Abuse of process arguments raised and conducting Confiscation Proceedings. The firm successfully obtaining an extension of time in relation to the Confiscation Proceedings.

Regina and Sandhu (Preston Crown Court) HHJ Russell Q.C. (2011)

The firm successfully having a conspiracy to murder charge dropped against the Defendant upon providing half time submissions in relation to an abuse of process. The firm successfully obtaining bail for the Defendant, prior to the Trial. Given the seriousness of the charge, the powerful arguments of abuse, formulated a leading authority within this area of law.

Regina and Atwal (2010) Snaresbrook Crown Court

The firm successfully raising an abuse of process argument in which a 4 year investigation by HMRC, the Crown and the UKBA had collapsed. Charge of identity fraud was "knocked out". This case had substantial importance for the firm, as the criminal case had a wide ranging impact in relation to pending cases against the client at the First Tier Tribunal.

Mark Hulton t/a Sameday Shipping (First Tier Tribunal -Manchester) 2010

Successful appeal lodged by the firm, whereby the Tribunal held that 9 assessments raised by HMRC were unlawful, upon the basis that alcholic goods were delievered in France and the relevant "duty point" arose in France, UK duty not being payable or due. The decision had significance for the trade in that pending cases at the tribunal were expedited as a result of this case.

Naso Investments v Ramjan & Dawlish 17th June 2010 (CLCC) Appeal, LTL 8/11/2010

The firm dealing with Lease Forfeiture - issue of failure to attend Trial pursuant to CPR 39.3 - Application to set aside final order refused - Lower court's finding that the application was not made promptly was wrong - Lower court's finding as to "good reason" for failure to attend inadequately reasoned - The conduct and failings of a party's legal representative was relevant to determining whether there is a "good reason" for not attending - Decision of Peter Gibson LJ in Training in Compliance Ltd v Dewse [2001] CP Rep 46 distinguished. This was a significant case which distinguished earlier case law.

Union Commodities A/G and Bache Commodities Limited (pending application at the Chancery Division)

The firm recently been instructed by a commodities dealer (in metals) in relation to a multi million pound dispute against a well known and substantial broker. Injunctive relief is contemplated together with arbitration. A city law firm was previously instructed in relation to this matter. The instruction confirms the growing reputation of the firm within commercial litigation.

Rainer Hughes is authorised and regulated by the Solicitors Regulation Authority
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