Seabrook Warehousing Ltd, R (On the Application Of) v Revenue And Customs

Where a specialist statutory tribunal has jurisdiction substantially overlapping with judicial review, the High Court should ordinarily refuse permission for judicial review unless there is good reason to intervene. The tribunal may consider the underlying lawfulness of the statutory scheme where that issue bears on whether the administrative decision could reasonably have been reached. Interim injunctive relief may remain available even after permission for judicial review is refused, but it is exceptional. The applicant must provide compelling, preferably independent and documentary, evidence that the statutory appeal would otherwise be ineffective. The court must then balance the applicant’s threatened harm against the public consequences of interim relief.

The claimants were authorised warehousekeepers and duty representatives under the Warehousekeepers and Owners of Warehoused Goods Regulations 1999. HMRC revoked their duty representative registration after concerns about their due diligence and compliance with Excise Notice 196.

The claimants sought permission for judicial review, declarations concerning the lawfulness of the regulatory regime and Excise Notice 196, and an interim injunction restoring their position pending a statutory appeal to the First-tier Tax Tribunal under section 16 of the Finance Act 1994. The central issues were whether the tribunal was the appropriate forum for the legality challenges and whether interim relief was justified despite the refusal of permission.

1. Judicial review. Permission was refused. The claimants’ grounds were assumed to be reasonably arguable, but there was substantial overlap between the proposed judicial review and the jurisdiction conferred on the First-tier Tax Tribunal by section 16 of the Finance Act 1994. In that area of overlap, the tribunal’s jurisdiction should prevail. The court agreed with the approach in HT & Co (Drinks) Ltd v the Commissioners for HM Revenue and Customs [2015] EWHC 659 (Admin).
2. The tribunal’s power to direct that HMRC’s decision cease to have effect where the Commissioners could not reasonably have arrived at it was wide enough to permit consideration of the underlying legality of the regulations and Excise Notice 196. If the regime were unlawful, it could not reasonably have been relied upon to justify HMRC’s decision.
3. Interim injunction. Refusal of permission did not exhaust the High Court’s power to grant ancillary relief in support of the statutory appeal. The court followed the guidance in ABC Ltd v The Commissioners for HM Revenue and Customs [2017] EWCA Civ 956. The applicant must provide compelling evidence, supported by documentary financial material and independent professional assessment, that the appeal would otherwise be rendered ineffective. The court must also balance the consequences for the applicant against the potential loss to the Revenue.
4. The claimants’ evidence was insufficiently independent and compelling. Even if it had met the evidential threshold, the asserted risk to the business was outweighed by the substantial and continuing risk of excise-duty loss. The interim injunction was therefore refused.
5. The claimants were ordered to pay HMRC’s costs of and incidental to the judicial review claim, subject to detailed assessment if not agreed.