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Cite as: [2005] EWHC 1173 (Admin)

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		Neutral Citation Number: [2005] EWHC 1173 (Admin)
		CO/4799/2004

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

Royal Courts of Justice
Strand
London WC2

2nd February 2005

B e f o r e :

MR JUSTICE MOSES
____________________

	Application for Permission
	TEBBUT

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Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)

____________________

MR M TEBBUT & MR J REID appeared in person
____________________

HTML VERSION OF JUDGMENT
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MR JUSTICE MOSES: This is an application by two claimants for judicial review. I pause to say that the sentence ends there because it is not wholly clear what it is these two claimants are seeking judicial review of. The best that can be identified is that it is a course of conduct of Customs and Excise in which, it is contended, they failed to acknowledge that these two claimants, who had previously been traders, had made a payment of £10,000 towards VAT tax liability which had not been properly credited and which had been lost. The claimants say that when they sued, the judge, although not allowing them to sue, suggested that Customs and Excise should come to an amicable settlement, but ever since then that Customs and Excise have been obdurate and refused to settle. It is in that context that they renew their application for judicial review following refusal by Bennett J on the papers.

It appears that the claimants contend that back in 1991 they paid two cheques of £5,000 each on account of one or more VAT assessments.

The best that can be identified in relation to their VAT liability is that which can be ascertained from a determination of a VAT Tribunal sitting on 10th March 1994 and 14th May 1996. That was a determination on appeal from an assessment made by Mr Palmer. The appeal was dated 20th February 1993 and was against an assessment for VAT dated 14th April 1992 in an aggregate amount of £20,292.94 in respect of nine successive quarters ending on 30th November 1991 and two serious misdeclaration penalties for quarters in 1990, adding to that sum by reason of penalties and default interest. There were then adjournments.

The Tribunal chairman records that the appellants were registered in August 1983, deregistered in 1985 and then required to re-register with backdating, which included a liability in the sum of £13,000. The Tribunal ruled that an original assessment of 30th November 1990 was not made to the best of judgment, but that others were and there remained, therefore, a liability of undeclared tax totalling £4,316 with default interest of £581.03.

The claimants sought to sue the Commissioners of Customs and Excise in a private law action in respect of the two cheques of £5,000 which they said they had paid and which Customs and Excise had either lost or otherwise failed to allow as a set-off of their liability.

I have before me a note of a judgment of District Judge Smith of 9th December 1998, in which she identifies the single issue as being an allegation of the Customs and Excise's failure to credit the VAT account with that amount. She ruled that there was no cause of action.

The claimants then appealed to His Honour Judge Ticehurst, who also recorded that there was no cause of action, although it appears that the appeal was abandoned. What he said, as it is noted, is: "Your only hope is that the Customs and Excise take action against you. You can then counterclaim, but I feel that it may embarrass them to take such action and the better course would be negotiation, with Customs and Excise taking a sympathetic view of your situation".

The claim today, apparently, is that Customs and Excise have not taken a sympathetic view and that they have never made an apology or reimbursed the sum and generally have not followed their own policy of acknowledging mistakes and paying compensation for the business which the claimants say was ruined as a result of Customs and Excise's attitude and behaviour.

The only other document to which I ought to draw attention is a letter, about which neither of the claimants have sought to make any specific comment, dated 16th August 1999, in which, under the heading "Without Prejudice", Customs and Excise point out that they have been able to acknowledge receipt of the two payments of £5,000, record an amount owing of £13,425.28, the belief of the claimants that they have paid £10,000 towards it, and a liability of legal costs of £4,900 which the claimants are liable for as a result of the action that was struck out in the Yeovil County Court. Customs and Excise record that they met on 4th February 1999 and a suggestion was made, without prejudice, where effectively all the liabilities both way were to be foregone and both sides were to call it quits. There is no evidence that was ever accepted. The claimants sought to complain through their Member of Parliament to the Ombudsman. The Ombudsman could not deal with it and did not deal with it and the matter now comes before this court.

It can be seen from my recitation of the facts that any conduct of Customs and Excise, if any, that was susceptible to judicial review took place many, many years ago. True it is that the Commissioners of Customs and Excise have done nothing since their offer of settlement back in 1999, but their continued failure, as it appears to the claimants to be, does not mean that there is any recent decision or conduct susceptible to judicial review. In other words, the complaints are way out of time, and in view of that delay there is no possible ground upon which judicial review can be bought.

But the matter is not just a question of time. When one looks at the facts of this matter, there is no possible basis for saying that the conduct of the Commissioners of Customs and Excise amounts to maladministration such as would found an application for judicial review. The claimants have been quite unable to identify any possible complaint in law that would allow this court to have jurisdiction or to act. What has happened is that these claimants assert that they have paid £10,000 towards a tax liability. They have never sought to deny that they had that liability; the only dispute has been as to whether they satisfied it. Customs and Excise have not acknowledged that they have and the claimants assert, on the other hand, that Customs and Excise have lost that money. None of that matters. Customs and Excise have been prepared to call it quits and have acted on that proposal, even though it does not appear to have been accepted by the claimants. They have not sued for the money. They have not sought to recover any unrecovered tax liability or any costs of the action that was struck out. It is quite hopeless to suggest that this court can be of any assistance.

Both claimants feel desperately aggrieved about this. They say they have tried every avenue to vindicate their claims and they come to this court as a last resort. This reveals a commonly misunderstood misapprehension about the function of this court. True it is that it is a court of last resort, but that only means that, where there is a complaint susceptible to judicial review, other remedies have to be exhausted before the protection of this court can be sought. In this matter there is nothing this court can do or has power to do. In those circumstances, permission is refused.