The Commissioners for HMRC & Anor, R (on the application of) v John Charles Parsons & Ors

A statutory referee’s determination under paragraph 17(4) of Schedule 3 to the Customs and Excise Management Act 1979 remains amenable to judicial review despite wording that it is “final and conclusive”. The referee’s jurisdiction is confined to goods delivered up, sold or destroyed under paragraph 16. Where non-perishable goods are destroyed in error, paragraph 17 does not apply. Market value means the value established by lawful transactions. For personally imported tobacco goods seized and destroyed in the United Kingdom, the relevant value is the retail price of equivalent goods in the country of purchase, not the UK duty-paid retail price. Travel costs are not part of market value because paragraph 17 confers a right to an amount equal to market value, rather than common-law damages.

HMRC sought judicial review of two determinations made by Raymond Machell QC under paragraph 17(4) of Schedule 3 to the Customs and Excise Management Act 1979. The determinations valued tobacco and alcoholic goods seized from personal importers and destroyed by Customs. The referee had valued the tobacco by reference to UK duty-paid retail prices and had also valued spirits destroyed in error.

The court was asked whether “final and conclusive” excluded judicial review, whether the referee had jurisdiction over goods destroyed otherwise than under paragraph 16, and how “market value” and travel costs were to be treated under paragraph 17.

1. The court held that a determination described as “final and conclusive” was amenable to judicial review. “Final” meant that there was no appeal, and “conclusive” meant that the determination was binding between the parties. Those words did not unambiguously exclude the supervisory jurisdiction of the court. The court also considered declaratory guidance appropriate because different referees had reached conflicting conclusions on an issue of continuing practical importance.

2. The power in paragraph 16(b) of Schedule 3 was confined to goods which, in the Commissioners’ opinion, were perishable, apart from living creatures. Paragraph 17 applied only to things delivered up, sold or destroyed under paragraph 16. The referee therefore had no jurisdiction to determine the market value of spirits destroyed in error when they were not perishable.

3. “Market value” referred to a price established by lawful transactions. The UK duty-paid retail price was not the value of the imported tobacco, because the imported goods had not borne the required fiscal mark and could not lawfully be bought or sold in the UK. Equivalent tobacco could lawfully be bought in the country of purchase, so its retail price there was the appropriate market value.

4. Paragraph 17 did not confer common-law damages. Common-law authorities could guide what was fair and just, but had to yield to the statutory language. Travel costs were therefore not recoverable as part of market value. The court made declarations that personally imported tobacco destroyed under paragraph 16(b) was to be valued at its retail price in the country of purchase at the time of seizure, and that the referee lacked jurisdiction over non-perishable goods destroyed otherwise than under paragraph 16.

First-instance judicial review proceedings. No earlier decision is stated in the judgment.