Panorama Cash & Carry Ltd (t/a Booze Direct) v Revenue And Customs

Applications to strike out or summarily determine a claim depend on the pleaded case, not on matters that might emerge through disclosure. A claim alleging misfeasance in public office must identify the relevant officer, particularise the unlawful abuse of power, state whether the allegation is targeted or untargeted malice, and plead the required dishonesty or bad faith. Limitation must also be addressed where the claim is plainly out of time.

A claim based on Community law must identify its legal route and plead the essential elements of the alleged right, breach, causation and remedy with precision. Bare reliance on legitimate expectation or proportionality is insufficient. A defective pleading may be amended where there is a realistic prospect that a viable claim can be formulated.

HMRC applied under CPR 3.4(2)(a) and CPR 24.2 to strike out or obtain judgment on a claim brought by a wholesale alcohol trader. The claim followed HMRC’s revocation of the claimant’s registration to deal in duty-suspended alcohol goods, a First-tier Tribunal decision finding the review unlawful and remitting the matter, and the eventual reinstatement of the registration after substantial delay.

The claimant advanced claims for misfeasance in public office and breach of Community law. HMRC argued that the pleadings disclosed no viable cause of action and that any domestic claim was statute-barred. The issues were whether either cause of action was adequately pleaded, whether limitation could be overcome, and whether amendment should be permitted.

HMRC’s application succeeded in relation to the existing statements of case, but the claimant was given an opportunity to plead a revised Community law claim.

1. Applicable procedural standards. Under CPR 3.4(2)(a), HMRC had to show that the claim was bound to fail. Under CPR 24.2, the question was whether the claimant had no real prospect of success and there was no other compelling reason for trial. The court applied the principles stated in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch). Where a defect may be cured by amendment, the court should ordinarily allow an opportunity to amend, as explained in Soo Kim v Youg [2011] EWHC 1781 (QB).
2. Misfeasance in public office. The tort requires an abuse of public power in bad faith. The relevant state of mind is that of the officer concerned, not merely the public authority. The pleaded case failed to identify the officer or officers, particularise the alleged misfeasance, distinguish targeted from untargeted malice, plead dishonesty or bad faith adequately, or explain how the delay constituted an abuse of the Tribunal’s process. The claim was also out of time under section 2 of the Limitation Act 1980, time running from first material damage.
3. Community law claim. The court treated Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 as identifying direct effect and state liability as distinct routes to damages. The claimant clarified that it relied on state liability. The particulars did not identify the essential elements of a viable Community law cause of action. A bare assertion of breach of legitimate expectation or proportionality was inadequate.
4. The claim form and the entire particulars of claim were struck out. The claimant was allowed 28 days to serve draft amended statements of case pleading a Community law claim. The judgment expressed no view on the merits of any application for permission to amend.