CC&C Ltd v Revenue & Customs

A statutory appeal concerning the revocation of excise registration is ordinarily the exclusive means of challenging a decision alleged merely to be unreasonable. The High Court cannot supply interim suspension powers which Parliament omitted from that scheme.

The court retains jurisdiction under Senior Courts Act 1981 section 37(1). Judicial review and interim re-registration may exceptionally be available where an arguable challenge rests on a more fundamental ground of unlawfulness, such as abuse of power, impropriety or bad faith. A realistic prospect of succeeding on statutory appeal, even when immediate revocation risks serious and uncompensatable loss, is insufficient.

HMRC revoked the appellant wholesaler’s registration as an owner of duty-suspended goods because it considered the company no longer fit and proper. The appellant appealed to the First-tier Tribunal under the statutory customs and excise appeal scheme. It also sought judicial review and an interim order requiring HMRC to restore its registration pending that appeal.

HH Judge Keyser QC, sitting as a deputy High Court judge in the Administrative Court, refused permission for judicial review and interim relief but granted permission to appeal. The central issue was when the High Court could order interim re-registration despite the statutory scheme’s omission of any power to suspend a revocation pending appeal.

1. The appeal was dismissed. The High Court possessed formal jurisdiction under section 37(1) of the Senior Courts Act 1981 to order interim re-registration. The mandatory character of that relief did not remove the jurisdiction. The decisive question was when the jurisdiction could properly be exercised.

2. Parliament had enacted a self-contained scheme for challenging relevant excise-management decisions. Under section 16(4) of the Finance Act 1994, the First-tier Tribunal could intervene in an ancillary matter only where HMRC could not reasonably have reached its decision. Parliament had carefully limited the available remedies and had conferred no power to suspend a revocation pending appeal. The High Court could not supplement that scheme merely because the statutory process might cause harsh and uncompensatable loss.

3. A challenge alleging only that HMRC could not reasonably have reached its decision fell squarely within section 16 and should proceed through the statutory machinery. A pending appeal with a realistic prospect of success therefore did not justify interim re-registration. Nor was a straightforward balance between the trader’s likely loss and the risk to the revenue sufficient.

4. Judicial review and associated interim relief remained possible where the decision was arguably unlawful on an additional and more fundamental public-law ground outside the statutory regime. Abuse of power, impropriety and bad faith indicated the relevant territory. Mere rhetorical characterisation of an unreasonable decision as capricious was insufficient. The court left open the precise treatment of procedural unfairness.

5. The appellant alleged, at most, that the revocation was unreasonable. It advanced no arguable case of abuse of power, impropriety or bad faith. Withdrawal of the assessment and wrongdoing penalty did not itself establish abuse, particularly where the withdrawal might have followed a later tribunal decision. Interim relief was therefore unavailable.

6. Obiter, because immediate revocation can cause irreversible loss before statutory review, HMRC should ordinarily consider giving a trader prior notice and a short opportunity to respond through a show-cause or minded-to letter. Immediate revocation without notice may nevertheless be justified where the public interest requires it.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the refusal of interim re-registration and permission to seek judicial review, although its detailed reasoning differed from that of the judge below: [2014] EWCA Civ 1653.

2. High Court, Queen’s Bench Division, Administrative Court: HH Judge Keyser QC, sitting as a deputy High Court judge, refused interim relief and permission to apply for judicial review but granted permission to appeal. No neutral citation is stated in the judgment.