England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 February 2008

MR JUSTICE WARREN:

1. This is an appeal from the decision of the VAT and Duties Tribunal, which I will call the second decision and the second tribunal for reasons that will become apparent. Mr Ley appears for the Appellant and Mr Beal appears for Her Majesty's Revenue and Customs, who I will call HMRC. The second decision was given on 19 March 2007, the Tribunal consisting of Miss Calder and Mrs Johnson. It is the most recent event in this long running dispute between the Appellant and HMRC.
2. In summary the case concerns the forfeiture of the Appellant's Mercedes motorcar following its use for smuggling of cigarettes, not by the Appellant herself, but a Mr Tanecki(?), although he had possession of the car with her consent.
3. The Appellant has sought return of the car pursuant to the relevant statutory provisions. The Commissioners refused her application. She appealed their decision, which came before a differently constituted tribunal in 2005, who gave their decision on 20 May 2006. I will refer to them the first tribunal and to their decision as the first decision.
4. The first tribunal made a number of findings of fact, some of which I will need to turn to in due course. One of these findings was that the Appellant had known of Mr Tanecki's intention to use the car for smuggling. The Appellant appealed the first decision. Laddie J dismissed the appeal.
5. The Appellant then appealed to the Court of Appeal, having obtained permission from that court to do so. Her appeal had a limited measure of success. She was given permission to appeal the finding that she had known of Mr Tanecki's intention to use the car for smuggling, the basis of that permission being that the first Tribunal had not given adequate reasons for reaching the conclusion which it did.
6. The factual issue was remitted for re-hearing before a differently constituted tribunal, in the event the second tribunal. The question in issue before the second tribunal was whether the Appellant knew or ought to have known of Mr Tanecki's intention to use her car for smuggling.
7. At the hearing, which as I have said, took place on 19 March 2007, the Appellant gave evidence. She was examined in chief by her then counsel Miss Calder and cross-examined by Mr Beal. In more detail the first tribunal made the following findings which the Court of Appeal did not give permission to challenge. First of all Mr Tanecki had used the car for smuggling although he had sought to deny this before the first tribunal. Mr Tanecki had borrowed the car from the Appellant for the purposes of smuggling cigarettes into the United Kingdom. The Appellant had known Mr Tanecki for about five years. She had made a previous trip to the United Kingdom with him and another man in her car in December 1999. They were on terms of close friendship.
8. The next findings relate to certain adaptations to the fuel supply of the car, converting it from petrol to LPG. The Appellant commissioned the changes, so the first tribunal held, to the fuel tanks in the car on the advice of Mr Tanecki. The first installation of one 90 LPG tank took place on 4 January 2000. The Appellant and Mr Tanecki agreed to have two separate LPG tanks installed, one of 70 litres and one of 40 litres. The remaining petrol tank was reduced in size by 70 per cent with the work not being done in a workmanlike manner. There had been a hole created in rough fashion in the back seat which permitted easy access to the petrol gauge censor in the petrol tank. The Appellant's purpose in commissioning the conversion of the car to one running on LPG was not to release space for smuggling, but to achieve the economic advantages of LPG fuelling. Mr Tanecki of his own initiative had made the hole in the back seat in order to facilitate smuggling. Mr Tanecki had made the hole without the knowledge of the Appellant. The Appellant was not aware that the purpose of the change to the petrol tank was to release space for smuggling. The conversion works to the petrol tank had been carried out in an amateurish and even unsafe fashion and the Appellant needed her car for work.
9. Mr Tanecki gave evidence to the first tribunal although not to the second tribunal. The chairman's notes of his examination in-chief record the following question, "When did he see Mrs G before leaving Poland?" A: "I saw Mrs G before I loaded car with cigs. She knew that I was going on a short trip as she told me she was going to attend a funeral she would need car and I would not have the car for any length of time. I did not see Mrs G after I loaded the car." Mrs G, of course, is the Appellant.
10. The note records, and this must be a note of something said by Mr Mackay, counsel then acting for HMRC: "Not part of C's" that is the Commissioner's "case that Mrs G knew that there were cigs in car." I shall refer to this as the concession, although how much of a concession it was is something I will need to deal with later.
11. The grounds of the appeal in the Appellant's notice raised three matters. Mr Ley has dealt with those in turn, making additional points without, I think, thereby extending the scope of the appeal in an impermissible way. He has not in all respects pursued the appeal by relying on the grounds in quite the way they are put in the grounds of appeal. I propose to deal with the case as Mr Lay actually put it.
12. The grounds in summary are these: Ground 1: the second tribunal was not entitled to hear evidence about the conversion of the car for smuggling and then to take that evidence into account in reaching its decision. The first tribunal had decided that the Appellant did not know the purposes of the conversion, although I remark that she certainly knew of the fact of the conversion having commissioned it. The conversion of the car was not, therefore, an issue in the case and the second tribunal should not have received evidence about it. In any case, having received that evidence they should not have taken it into account, again because the issue had been decided by the first tribunal in a way binding on the second tribunal. Mr Ley also says that no tribunal properly directed and having the evidence which it did could have reached the conclusion which it did in the light of this error.
13. The second ground: The length of time which had passed since the events in question meant that the Appellant could not have a fair hearing of an issue which depended so critically on her own evidence. Further, she had come to the hearing before the second tribunal prepared only for questions about one issue, namely whether she knew that Mr Tanecki intended to use the car for smuggling, whereas the actual question went much wider in a way which it is said was unfair to her.
14. The third ground: in the notice of appeal this ground is put on the basis that the second tribunal erred in law in not holding HMRC to the concession it had made namely, "That it was not their case that the Appellant knew about the cigarettes," i.e. Mr Tanecki was smuggling cigarettes. That is a quote from the grounds of the appeal. That is not an accurate identification of the concession, which was as I have set it out already.
15. Mr Ley identifies the concession correctly in the way he puts the third ground in his skeleton argument, but says that the second tribunal erred in admitting any evidence which went against the concession. Quite apart from that Mr Ley admits that there were two strands to this ground as he now puts it. First, he says that the concession is a killer point in that it is impossible to conclude both that the Appellant knew that Mr Tanecki intended to use the car for smuggling and, at the same time, that she did not know that there were cigarettes in the car. I think this is what he is getting at in his skeleton argument where he says that, absent a request to resile from the concession, the second tribunal should not have made any findings contrary to that concession and should have held that the Appellant did not know of the car's use for smuggling. Secondly, Mr Ley says that the concession makes it all the more clear that no reasonable tribunal could reach the decision which the second tribunal did, which is really an aspect of the first ground and I accordingly propose to deal with the concession first.
16. I have already set out the terms of the concession as recorded by the chairman. It is, I consider, important not to read into it more than is justified. The context in which the concession was made, assuming that the note accurately records its full nuances, was in the line of questioning seeking to identify when Mr Tanecki last saw the Appellant before setting off on his journey, the obvious purpose being to show that the Appellant could not have known what was in the car because, when they last met or spoke, the cigarettes had not been put into the car.
17. Mr Mackay, no doubt in the spirit of helpfulness, said that it was not his client's case that the Appellant did know that the cigarettes were in the car. She could have not have known it, given that she had not had any contact with Mr Tanecki since he actually loaded the car. It does not follow from that that she did not know that he was going to use the car for smuggling. There is, in my view, nothing inconsistent with the Appellant lending her car to Mr Tanecki knowing that he was intending to use it for smuggling without knowing that he had actually loaded it with cigarettes.
18. The second tribunal themselves dealt with the concession in paragraph 41 of the second decision. They felt bound to accept that there was a concession. They set out the short passage in the transcript from the Court of Appeal which I should repeat. This occurred in this interchange between Ward LJ and Mr O'Connor, who then represented HMRC:

"Ward LJ: 'It may be appropriate for you to reconsider the concession that seems to have been made in the course of the cross-examination.' Mr O'Connor: 'It will undoubtedly be the case that it will be appropriate to reconsider the whole matter.' Ward LJ: 'She did not appreciate that this car had been adapted for this purpose and yet she knew that he was going off with a stash of cigarettes.' Mr O'Connor: 'Indeed, my Lord.' Ward LJ: 'Is it worth yet another round of litigation?'"

And he goes on with a passage that I do not need to set out again.

19. The second tribunal then say this:

"In our view it is not open to us to look beyond this passage from that transcript of the Court of Appeal hearing that the concession was no more than that stated by Ward LJ."

That is not without its own difficulty. Ward LJ did not identify the concession in the passage which I have just quoted. Indeed, the only material which indicates what the concession was is the chairman's note. There was no evidence before the second tribunal from anyone actually present when the concession before the first tribunal was made and, whatever any judges may have said about the concession, they had no other material either. So, I must take it that the concession, whatever his note actually means, is as recorded by the chairman and that is the concession which I take it the second tribunal considered themselves bound to accept. Presumably the second observation of Ward LJ in the passage I have just quoted is that this would summarise HMRC's position if the concession were indeed withdrawn. It does not in any way record what the concession actually was.

20. In the light of that I turn to the third ground of appeal. Given that the second tribunal regarded themselves as bound by the concession, it is difficult to see that there is anything in the third ground as it appears in the grounds of appeal, since HMRC never said that it was not their case that the Appellant knew that Mr Tanecki was smuggling cigarettes. Indeed, they have consistently maintained that the Appellant did know that Mr Tanecki was intending to use the car for smuggling and it is unlikely that they would maintain that whilst conceding that she did not know that he was smuggling cigarettes rather than anything else.
21. Addressing the way in which Mr Ley now puts the third ground, I do not detect that the second tribunal actually did receive any evidence that went to the concession, but that does not really matter because they clearly did not make a finding that the Appellant did know that the cigarettes were in the car. Mr Ley's case and what he calls the killer point really rests solely on the submission that it is simply inconsistent to accept that the Appellant did not know that there were cigarettes in the car and yet hold that she knew Mr Tanecki intended to use the car for smuggling.
22. If my analysis of the concession is correct then the inconsistency which Mr Ley seeks to identify simply does not exist. Of course, if the concession is to be read as one to the effect that the Appellant did not know that the cigarette were in the car or that Mr Tanecki might load cigarettes or any other illicit material in the car before setting off for the United Kingdom, the position would be different, but that was not what the concession was so that disposes, in my judgment, of the first strand of Mr Ley's argument.
23. I will deal with the second strand as part of my consideration of the first ground to which I will turn in a moment. But before I do so and before leaving this aspect of the case, I should note for the record that Mr Beal addressed submissions to me about whether it was now open in any case to the Appellant to take any point about the concession since, by the time the matter came to the second tribunal the Appellant had had every opportunity to take a point which, according to Mr Ley, is a killer point against HMRC.
24. The point, according to Mr Beal, has never been properly taken before and should not be allowed to be taken now. Given that the second tribunal regarded itself as bound by the concession and since there is no cross-appeal against that, the decision is based on a concession which HMRC do not, in fact, seek to go behind. HMRC do not seek to say that the second tribunal should have found that the Appellant did know or must have known that there were cigarettes in the car. They were not invited to do so and it is not easy to see how they could have done so. Further, Mr Beal submits that the Appellant could not raise this point anyway since it goes beyond the scope of the permission to appeal, which the Court of Appeal granted. I do not need to say anything more about these submissions in the light of what I have already decided.
25. The first ground of appeal: the first complaint is that the second tribunal should not have heard any evidence concerning the adaptation of the car, because that was irrelevant to the issue of whether the Appellant knew that Mr Tanecki's purpose was to use the car for smuggling. It had already been decided that she did not know that it had been adapted for that purpose, so it is said nothing could arise in relation to that issue. I reject that submission for three reasons, each of which by itself would be sufficient, but cumulatively are overwhelming. First, that evidence was, in fact, relevant to the issues in question. The second tribunal themselves stated as much in recognising that the factual background to the adaptations was relevant to what the Appellant knew about Mr Tanecki's intended use of the car and to whether she would be able to discharge the onus on her to show that she did not know of that intended use.
26. There were factual disputes about aspects of the delivery and collection of the car from the garage and about the extent of the works done and who gave what instructions about that work, the resolution of which would throw light on relevant matters. In that regard it was not a question of why the adaptation was done (it has to be accepted that the Appellant thought that it was being done for genuine fuel economy reasons) but what the car was to be used for.
27. Mr Beal tells me and I have no reason to doubt this and it was not challenged by Mr Ley, that he carefully avoided asking questions in cross-examination which could be taken as a challenge to the finding that the Appellant did not know of the purpose of the adaptation to assist Mr Tanecki's smuggling activities. Secondly, it was the Appellant's own counsel who asked questions in examination in chief about the adaptations to the car. The Appellant cannot now possibly complain, subject to the second ground, that the second tribunal listened to that evidence and took it into account. Nor can she complain that Mr Beal then cross-examined the Appellant on it.
28. I agree with the second tribunal in what they say in paragraph 40 and I quote from the decision:

"It is incorrect to submit, as Miss Calder did, that she was prevented from asking questions about the arrangements that Mrs Golobiewska had made with Mr Tanecki concerning the alterations to her car. She gave specific evidence in chief about just this matter and she was not prevented in re-examination from exploring the matter further following the cross-examination. We do not accept that there was any abuse of process by the Respondent asking questions relating to alterations to the car and we do not accept that those representing her were in any way prejudiced by this. By examining the precise circumstances of the conversion to the car Mr Beal was exploring the extent to which Mrs Golobiewska must have known of Mr Tanecki's intention, not her actual knowledge and also her credibility. We consider that Mr Beal was fully entitled to examine the evidence in the light of the previous findings of the tribunal, but bear in mind that we are not entitled to make new findings on those issues."

In my judgment, that is a perfectly proper approach. Moreover, in her written submissions after the hearing before the second tribunal Miss Calder, who then appeared for the Appellant, wrote this:

"It was obviously necessary to ask her [that is the Appellant] relevant questions in-chief about the nature of their relationship. It was obviously necessary to ask her questions in chief about how he came to be in possession of her car."

29. Thirdly, the evidence went to the credibility of the Appellant. There can surely have been no objection, in my view, to a line of questioning surrounding the adaptation work which tested the Appellant's evidence, at least if it did not challenge the finding which was binding on the second tribunal.
30. It is perhaps ironic to note that one element of the evidence which the second tribunal did rely on to form the adverse view of the Appellant, which they did, was her own evidence, volunteered or given in response to a question from the tribunal rather than from Mr Beal, to the effect that it was the manufacturer of the car which had created the hole in the seat in order to permit the carrying of skis. Mr Tanecki had admitted before the first tribunal that he himself had made the hole and that was a specific finding of the first tribunal. At least Mr Ley has not submitted that the second tribunal should not have taken that into account on the basis that it was not relevant to any issue in the light of the first tribunal's finding.
31. In any case, the second tribunal on a number of occasions reminded themselves that they were bound by the finding that the Appellant did not know of the purpose of the adaptation and were careful not to say anything which cut across that. It is impossible to think that the second tribunal failed properly to take that finding into account in reaching their decision. Accordingly, I reject any suggestion that the second tribunal should not have received the evidence which it did concerning the adaptations to the car or, that having received it, they should not have taken it into account.
32. Mr Ley then says that no tribunal properly directed could, on the evidence before it, have concluded that the Appellant had failed to prove that the Appellant knew (or indeed ought to have known - the alternative findings of the second tribunal in case they were wrong to find that she actually knew) of the intended use of the car for smuggling. She relies on the findings binding on the second tribunal (a) that the Appellant's purpose in commissioning the conversion works to run the car on LPG was not to release space for smuggling but to achieve the economic advantages of LPG fuelling (b) that Mr Tanecki had made the hole in the back seat without the knowledge of the Appellant and (c) that the Appellant was not aware that the purpose of the change to the petrol tank was to release space for smuggling or that adaptations to the car were for the purpose of smuggling. Further, either cumulatively or in the alternative, he relies on the concession.
33. Those factors are, of course, part of the material which the second tribunal should have taken into account. They did so. They were well aware, having referred to them all, of their existence. In terms of actual inconsistency with their ultimate decision, I do not consider that there is any. I have already addressed that aspect in the context of the concession when considering the first limb of the third ground of appeal. For similar reasons I do not think that there is any inconsistency between the findings of the first tribunal binding on the second tribunal which I have just mentioned, (that is to say in essence the purpose of the conversion works being unknown to the Appellant) and an inability on her part to discharge the burden on her to show that she did not know Mr Tanecki's intended use of the car for smuggling.
34. Of course, if all of these features stood alone Mr Ley's argument would be a powerful one, but they do not stand alone. Instead, there was ample material on which the second tribunal could reach the conclusion which they did. Having considered the evidence before them and the party's submissions, the reasons for the decision are to be found in paragraphs 35 to 43 of the second decision. The second tribunal found the Appellant to be an unreliable witness. They found her evidence to be inconsistent in many respects, as they explain in paragraph 39. I do not see how that conclusion could possibly be open to challenge and Mr Ley has not suggested that it is.
35. The tribunal were impressed, if that is the right word, by her attempts to distance herself from Mr Tanecki and to paint their relationship as one of acquaintanceship rather than the close friendship which the first tribunal had held to be the fact, a finding binding on the second tribunal in any event.
36. The critical passage of the second decision comes at paragraphs 42 and 43 and I should read them into this judgment:

"42. Whilst we accept there is no direct evidence of Mrs Golobiewska's knowledge of Mr Tanecki's purpose, there was considerable indirect evidence, not least Mr Golobiewska's lack of credibility and lack of consistency as a witness. We do not find the whole circumstances of her relationship with Mr Tanecki and the circumstances in which the car was adapted, taking account of the cost and the strange business of the early visit to the United Kingdom, to be inconsistent with her evidence that she and Mr Tanecki were merely acquaintances. We consider the only reason for her attempting to show that they were merely acquaintances rather than close friends was to distance herself from his smuggling activities.

Her financial circumstances, including the fact that she apparently made no charge to Mr Tanecki for the loan of the car; her need for a car to get herself to work; the fact that she does not appear to have been a friend of Mr Tanecki's wife or family; her initial attempt to show that it was only Mr Tanecki who took the car to the garage when documentary evidence showed that she herself had been to the garage; the fact that Mr Tanecki asked for the personal belongings in the car to be returned to her all point to a very different relationship between her and Mr Tanecki from that which she attempted to convey. We can see no reason for lack of truthfulness other than that she was seeking to persuade us that she did not or could not have known of Mr Tanecki's intention.

In all the circumstances she has not satisfied us, the burden of proof being upon her, that she did not know or if we are wrong as to that, that she did not turn a blind eye to Mr Tanecki's intentions with regard to the car and his visit to England and we find that Mrs Golobiewska did turn a blind eye to the circumstances as to Mr Tanecki's purpose.

However, it having been conceded by the Commissioners that the review decision was flawed, this matter was referred back to the Respondents for a further review to be conducted on the basis the facts found by the first tribunal as set out above and those found by us."

37. Mr Ley criticises the second tribunal. He asks rhetorically whether it is likely, if she was as close to Mr Tanecki as the first tribunal had held, that the Appellant would not have been told by him that he was converting the car for the improper purpose. Indeed, he says that it is extraordinary that Mr Tanecki could have mentioned the possibility of using the car for smuggling without also telling her about the purpose of the adaptations. The fact that she was not told about the purpose of the adaptations makes it inconceivable, he submits, that she was told about smuggling at all. He says that the second tribunal failed properly to weigh this factor against the other relevant factors. Had they properly taken it into account, they would not have reached the conclusion which they did.
38. Mr Ley also says that the second tribunal failed to take into account the fact that there was nothing in it for the Appellant. I do not think he can make that submission, at least not quite in that way. There was simply no evidence before the first tribunal or the second tribunal about whether the Appellant had anything to gain from it. Evidence was not led on her behalf to that effect and nor did Mr Beal cross-examine her on it. It is hardly surprising that neither tribunal said anything about it. There is absolutely nothing to suggest that either tribunal was proceeding on the basis that she did stand to gain financially. This aspect quite rightly formed no part of either decision. There was simply nothing to be taken into account in the balance either way.
39. However, in reaching their conclusions it is clear that the second tribunal were well aware of the findings which Mr Ley relies on and of the concession. They clearly did not fail to take into account the fact that the Appellant did not know the purpose of the adaptation of the car. They saw no inconsistency between that fact and the possibility that she nonetheless knew the car would be used for smuggling. This point which Mr Ley now seeks to rely on may not be one which the second tribunal expressly mentioned, but perhaps it was one which was made to them by Miss Calder. But even if was mentioned it is only one point in a much larger picture.
40. Having taken all factors into account the second tribunal reached a balanced conclusion. It was not an irrational conclusion. It was not a decision outside the range which a properly directed tribunal could make, but was one in my judgment, which they were entitled to reach from the totality of the evidence before them. Their decision is one which the Appellant does not like, but it is one which they were entitled to make.
41. The second ground of the appeal relates to the impossibility of having a fair hearing. I comment that it is extraordinary that this point is taken at this stage of the proceedings without having been raised before or at the commencement of the hearing before the second tribunal, if not well before that. Mr Ley suggests, I believe even on instructions, that Miss Calder was simply not permitted to address the second tribunal because the chairman had required her to get on with the evidence.
42. That seems to me to be a fanciful suggestion. The idea that counsel was unable to get the second tribunal to listen to a submission which she wished to make to the effect that the proceedings should not continue because there could not be a fair hearing is one I find astonishing. Although Mr Ley, who was not at the hearing, tells me that this is what happened, Mr Beal who was there tells me that that was not the case at all. Rather, Miss Calder opened her case to some extent, but the chairman then indicated that the second tribunal had read enough beforehand and that it would be preferable to get on with the evidence. I have no actual evidence about what happened in contrast with statements from the Bar. In my judgment there is nothing in this aspect of the second ground of appeal.
43. Insofar as the merits of the second ground are concerned, the second tribunal dealt with this at paragraph 36 of the second decision where they said this:

"We accept Miss Calder's submission that it is very difficult for any witness to remember precisely events which happened seven years before. However, it is not as if Mrs Golobiewska was suddenly asked after seven years to recall those events. She had given evidence at the earlier tribunal which took place some two years after the event and in respect of which findings of fact were fully recorded and we find it inconceivable that Mrs Golobiewska was not properly reminded both about the previous tribunal proceedings, the proceedings in 2004 in the High Court and subsequently in the Court of Appeal in 2005. The fact that she did not choose to refresh her memory by looking at her statement of 2000 before appearing before us as we were told is the case, is no indication that prior to setting off for England she had not read any of the relevant papers or been asked to cast her mind back over events. She either knew or ought to have known exactly what this hearing was about and we find it very surprising that those representing her did not properly furnish her with the relevant papers to refresh her memory if that was the situation."

44. The second tribunal clearly considered that a fair hearing was possible. Even if I might have reached a different conclusion myself sitting in their seats, which I hasten to add I would not have done, I can see no possible challenge to the second tribunal proceeding to give its decision notwithstanding the submission of Miss Calder, made for the first time in her written closing submissions after the end of the hearing.
45. In my judgment there is nothing in the third ground of appeal. The fact that I have not mentioned every detail of Mr Beal's helpful submissions or every aspect of the second decision which supports the second tribunal's conclusions should not be taken to mean that I have overlooked them. It seems to me that the material which I have mentioned is more than enough to show that the second tribunal's conclusions in the second decision are not open to attack. Accordingly, this appeal is dismissed.
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