United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2005/E00919.html
Cite as: [2005] UKVAT(Excise) E919, [2005] UKVAT(Excise) E00919

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Amanda McKarnon v Her Majesty's Revenue and Customs [2005] UKVAT(Excise) E00919 (30 September 2005)

EO00919

EXCISE DUTIES – interception of vehicle - driven by Appellant's husband vehicle found to contain 80,000 cigarettes in respect of which duty had not been paid - seizure of vehicle - request by Appellant for restoration - application of restoration policy - whether Appellant sole owner of vehicle - whether vehicle jointly owned - Appellant without involvement in any offence – Appellant an innocent party – Whether reasonable not to restore vehicle – Whether decision not to restore based upon correct findings as to ownership of the vehicle – Appeal allowed

BELFAST TRIBUNAL CENTRE

AMANDA McLARNON Appellant

and –

THE COMMISSIONERS OF REVENUE AND CUSTOMS Respondents

Tribunal: Alistair Devlin (Chairman)

John Adrain FCA

Sitting in public in Belfast on 17 and 18 May 2005

David McBrien of counsel, instructed by Breslin McCormick & Co., Solicitors, for the Appellant

James Puzzy of counsel, instructed by the Solicitor for the Commissioners of Revenue and Customs, for the Respondents

DECISION

The appeal

This is a appeal by Mrs Amanda McLarnon against the Commissioner's decision of 14 May 2004 not to restore to her a Mercedes vehicle registration number BJZ 3707 ["the vehicle"] seized by them on 16 October 2002.

Mrs McLarnon ["the Appellant"] is a housewife with six children ranging in ages from 8 to 22 years of age as at the date of hearing of this appeal. In April 1982 the Appellant married her husband, Gerald McLarnon, a roofing contractor. The essential facts of this matter are not in dispute. They follow in paragraphs 3 to 5 inclusive.

On 16 October 2002 Gerald McLarnon was stopped by police whilst he was driving the vehicle. A search of the vehicle revealed 80,000.00 cigarettes which had been imported into Northern Ireland without payment of duty. When questioned by the Respondents' officer, Mr McLarnon claimed that he had been asked by a man to go and lift a few cigarettes for him as a favour; it was he said the first time he had done it, there was no question of payment, it was just to be a favour. Mr McLarnon admitted having been stopped by police just past Belfast International Airport; the cigarettes had been found inside a number of black plastic bags. When asked by police what was in the bags, Mr McLarnon had replied that it was just rubbish.

Mr McLarnon claimed that he had run into the man just that morning. His instructions had been to go to Ballymena and there to meet a lad in a red Transit van, and bring them down to the town. He claimed that he had not thought it unusual or that it was a big deal whenever a man out of the blue approached him and asked that he collect cigarettes; he said that he had no interest in what the man was going to do with them. Mr McLarnon went on to describe how he had collected the cigarettes as instructed; he did not know how many cigarettes he had been given, some were in boxes and some were loose. They were all contained in a number of black rubbish bags. He stated that whenever he told police that there was only rubbish in the bags he knew then that he was in trouble. Mr McLarnon claimed that he did not consider what he was doing to be clandestine; it was just a few cigarettes; it did not strike him as odd, he just did it. Mr McLarnon went on to state that he was not a smoker, and that he was not aware of the costs of or duty on cigarettes. He was simply being asked to do a favour, and was now aware of the duty which the government charged on cigarettes.

So far as ownership of the vehicle was concerned, Mr McLarnon stated that the vehicle belonged to his wife. He claimed that it was about two years old, and that it had been bought brand new for about £30,000, paid for by cheque. The vehicle was subsequently seized by the Respondents' officers. On 21 October 2003 at Antrim Magistrate's Court, Mr McLarnon pleaded guilty to the charge of being in possession of 80,000 unmarked cigarettes. He was fined in the sum of £2,500. The revenue evaded was £13,434. No charges were brought against the Appellant.

By letter dated 17 October 2002 the Appellant by her solicitor requested restoration of the vehicle. The Appellant subsequently attended at an interview on 28 October 2002 at which in response to questions from the Respondents' officers, she stated as follows.

At the interview, the Appellant told the Respondents' officers that the vehicle was hers; she provided a copy of her details as the registered keeper of the vehicle, together with a sales invoice in respect of it. The vehicle had been paid for by Mr McLarnon's father by a cheque for £13,000, with the balance in cash. Mr McLarnon's father had given her the money for the car last year whenever his son had left the Appellant. The Appellant had not been expected to give the money back. The Appellant had sold two properties one of which had belonged to her mother; this had realised £54,000. Shortly afterwards, her husband had met someone else, and had cleared out the bank accounts. Monies had been given by Mr McLarnon to his father following the obtaining of a Mareva injunction. The vehicle had been ordered in advance, and had been part paid for; it was always kept at the Appellant's house. Mr McLarnon had been allowed by the Appellant back into the house the previous year, and he would sometimes have taken the vehicle for use at work; if the Appellant had objected he would not have taken the vehicle and would simply have used his own car. The Appellant owned, maintained and insured the vehicle in her own name, with her husband being named as an additional driver. The Appellant's husband had used her vehicle on 16 October 2002, and she had used his. The Appellant had no idea as to what her husband had intended to use the vehicle for on 16 October.

A decision to refuse the vehicle was communicated to the Appellant by letter dated 11 January 2004. By letter dated 24 February 2003 the Appellant by her solicitor requested a review of that decision. A Review Officer, namely Mr David Harris, confirmed the decision not to restore the vehicle by letter dated 26 March 2003, ["the first review"]. The Appellant appealed to this Tribunal against that decision on first review by means of a Notice of Appeal dated 25 April 2003. That appeal [LON/03/8108] came on for hearing before the Tribunal on 20 February 2004. During the course of the hearing, as a result of evidence presented by the Appellant, counsel for the Respondents agreed with counsel for the Appellant that a further review should be carried out pursuant to section 14[5] of the Finance Act 1994, and this was announced to the Tribunal which subsequently determined appeal LON/03/8108 to have been brought to a conclusion by agreement on that basis. In connection with the further proposed review, the parties formulated an Agreed Statement of Facts, which provided as follows:

Mrs Amanda McLarnon was separated from her husband in and about February-March 2001 prior to the purchase of the Mercedes Jeep in and about April-May 2001.

The monies for the Mercedes Jeep originated in a joint savings account, which was realised and the proceeds given to the father of Mr McLarnon, who then took it upon himself to divide the monies equally between his son and daughter-in-law.

Mrs McLarnon used the monies, which she obtained from her father-in-law to purchase the Mercedes Jeep and to pay the insurance premium in respect of same.

Mrs McLarnon suffered depression as a result of the separation from her husband and received anti-depressants for her condition.

As a result of Mr McLarnon's behaviour, Mrs McLarnon retained the services of Samuel Cumming & Son to obtain a divorce on the grounds of adultery against her husband and she believes that the necessary steps were taken to commence same. The divorce proceedings are not being continued.

Mr McLarnon started to visit the former matrimonial home about 6-8 months later in the autumn-winter of 2001, when Mrs McLarnon's condition was up and down following the death of her mother in June 2001, for whom she had been caring on a long term basis. He returned to live in the premises in and about January-February 2002.

Mrs McLarnon only permitted the return of her husband to the home because of her need to have a father-figure for their six children. The ongoing circumstances are, however, stressful.

Mr McLarnon used his own monies to purchase a separate Mercedes saloon in the autumn-winter of 2001. Following his conviction in Antrim Magistrates' Court, he sold same and obtained a second hand three year old Citroen Xsara, which is the only car now available for either Mr McLarnon or Mrs McLarnon.

Mr McLarnon has, however, continued to support his wife and family to the same extent as prior to the separation. He paid some of the household bills and housekeeping money to supplement her various family and care allowances (in relation to her mother) by about £100-£150 per week. Since their marriage in 1982, Mrs McLarnon has had no source of income. She believes that Mr McLarnon's income as a roofing contractor is fairly good.

Mrs McLarnon was not involved in any way in the offences committed by her husband. Nor was she reckless or blameworthy in respect of same. She was an innocent party.

From October 2000 to May 2001 when the Jeep was purchased, Mrs McLarnon had no vehicle to take the horse and ponies to shows and this was a motivating factor in Mrs McLarnon's choice of vehicle.

As the present family home is about five miles from Ballymena and as Mrs McLarnon has not been able to replace the motor vehicle, this had and continues to have adverse consequences for her daily life in respect of:

(a) Taking her children to school;

(b) Buying groceries and doing other household chores requiring transport;

(c) Collecting her children from school;

(d) Taking her horse and the children's ponies to shows etc;

(e) Other important and essential family commitments.

A second Review Officer, namely Mr Raymond Brenton, in a further decision on review dated 14 May 2004 ["the second review"] upheld the earlier decision not to restore the vehicle. The Appellant now appeals to this Tribunal in respect of that decision on second review. In her Notice of Appeal dated 4 June 2004, the Appellant states:

"The Appellant relies on the information contained in the original disputed decision and the review decision details of which are attached. In addition the Appellant attaches additional grounds of appeal which are attached together with a copy of the agreed statement of facts dated 20 February 2004".

The facts

The Tribunal heard evidence from Mr Harry McLarnon Senior, Mr McLarnon's father, and also from the Appellant herself. Mr Brenton gave evidence on behalf of the Respondent. On the basis of that evidence as adduced before it, the Tribunal finds the following facts to be established. In the period prior to 2001, two houses within the Dunvale part of Ballymena, County Antrim were owned by members of the McLarnon family. The first of these at 30, Dunvale was owned jointly by Mr Gerald McLarnon and the Appellant's mother Mrs Margaret Black. The second house, close by at 31, Dunvale, was owned jointly by the Appellant and her husband. In September 2000, both of these houses were sold to the same purchaser each at the agreed price of £26,500, total sale price £53,000. The net proceeds of sale amounting to £51,380.84 were paid to Mr McLarnon and the Appellant by their solicitors on 27 September 2000. This cheque, although drawn in favour of Mr McLarnon and the Appellant in joint names, was on 10 October 2000 lodged by Mr McLarnon into a bank account in his sole name in the Ballymena branch of the Halifax Building Society. Mr McLarnon subsequently closed this account in February 2001. Before the bank account was closed however, Mr McLarnon on 3 November 2000 transferred out of the account £50,000 into a Halifax Saver Reward account, which he then closed also in February 2001 withdrawing from it the entire £60,814.86 which it then contained. Having taken out of the Saver Reward account the entire £60,814.86 which it contained, Mr McLarnon then in late March 2001 transferred into an account held by his father Mr Henry McLarnon a total of £67,923.23 for the purposes of safekeeping.

At the time of the transfer of £67,923.23 to his father for safekeeping, Gerald McLarnon was engaged in the course of an extra marital liaison. He had told the Appellant in February 2001 that he had met someone else, and that he was leaving the Appellant for her. Subsequently, in March 2001, after he had closed both the Halifax Building Society bank account, and the Saver Reward account, Gerald McLarnon informed the Appellant that he was soon going to be leaving Northern Ireland together with his new girlfriend to go and live in England, and that he had taken all the money.

The Tribunal is completely satisfied on the basis of the evidence which it has heard that the various transactions effected by Gerald McLarnon amounted to a deliberate attempt on his part to appropriate to himself funds in which he was perfectly well aware the Appellant held an interest, and which he was intent upon doing his utmost to deprive her of. The Tribunal finds that the Appellant and her husband were jointly entitled to the £51,380.84 being the net proceeds of sale received in respect of the Dunvale properties, that Gerald McLarnon was not entitled in the circumstances to pay those jointly held net proceeds of sale into an account in his sole name. Moreover, the Tribunal finds that whenever Gerald McLarnon subsequently transferred out to the Halifax Saver Reward account the sum of £50,000 that sum entirely represented the jointly held net proceeds of sale, and that when additionally Gerald McLarnon closed the Saver Reward account, and paid its balance of £60,814.86 together with other monies to his father in the total sum of £67,923.23, that sum again represented as to at least £50,000 thereof the jointly held net proceeds of sale.

In late March 2001, in turmoil from the events surrounding her, the Appellant turned to her father in law Henry McLarnon for support. Seriously disapproving as he did of his son's conduct, when the Appellant informed her father in law that she wished to buy a new Mercedes jeep for herself and her hobbies and those of the children Henry McLarnon handed over to the Appellant £20,000 in cash out of the £67,923.23 given to him by his son for safekeeping, and then gifted her a further £13,000 from the funds held by him so as to enable the vehicle to be paid for. Mr Henry McLarnon in his evidence to the Tribunal made it clear that in informed his son of what he was doing; he stressed that whilst his son was angry with him, Gerald took no steps whatsoever to interfere with the transfer of any of the funds to the Appellant, nor took any steps to attempt to recover those funds or any part thereof. The costs of the vehicle was £31,315.00; this was paid for by means of a cheque made payable by Henry McLarnon to the vehicle supplier Messrs Isaac Agnew in the sum of £13,000 with the balance of £18,300 or thereabouts coming from the Appellant herself in cash out of the £20,000 her father in law had previously given her. The Appellant held back some cash out of the £20,000 so as to enable her to insure the vehicle, which she did in her own name.

The Appellant accepted that a deposit for the vehicle in the sum of £500 had been paid for by her husband on 6 April 2001. The Appellant explained that on that date both she and her husband in the company of each other had visited the premises of Messrs Isaac Agnew, and had there agreed to purchase two vehicles, the vehicle in question for the Appellant, and an entirely different Mercedes vehicle for Mr McLarnon himself. Mr McLarnon had then paid over two deposits totalling £1,000: one in the amount of £500 in respect of the vehicle, and a further £500 in respect of the other vehicle he had intended to purchase for himself. This purchase never proceeded any further., although Gerald McLarnon did purchase another vehicle for himself later in the year, again a Mercedes this time a C class. Whilst the Tribunal does certainly find it somewhat surprising for the Appellant in the circumstances which were facing her in early April 2001 to have nevertheless been prepared to have gone with her husband to the premises of Isaac Agnew in order to view vehicles, and shortly thereafter for deposits totalling £1,000 to have been placed by her husband for the Appellant, this does not adversely impact or take away from the various findings of fact arrived and summarised above.

From March 2001 onwards the Appellant and her husband were separated. Gerald McLarnon was out of the country on a regular basis. After the death of her mother on 23 June 2001 the Appellant became unwell. The children wanted their father back, and the Appellant was encountering severe emotional and practical difficulties running the home in his absence. In early 2002, in or about January or February of that year, the Appellant attempted a reconciliation with her husband at his request. Upon his return to the matrimonial home, Gerald McLarnon was however abusive towards the Appellant, and the atmosphere in the house was frequently tense and strained. The Appellant and her husband separated again in March 2003. In the period between early 2002 and 16 October 2002, the Appellant almost exclusively drive the vehicle. She almost never drove the C class Mercedes. Gerald McLarnon would only have used the vehicle very seldom during this period.

The Review Decision

In his evidence to the Tribunal Mr Brenton explained that he was a Review Officer based at Plymouth. He explained to the Tribunal the policy and other documentation which she stated he had taken into account in arriving at his decision concerning the second review. Mr Brenton stated that he had taken into account the contents of the Statement of Facts agreed between the parties during the course of the previous appeal [LON/03/8108]. In his Review Letter dated 14 may 2004 Mr Brenton set out the relevant parts of the Respondents' policy in respect of which he stated the Appellant's case had been considered:

"The Commissioners' general policy regarding private vehicles used for the improper importation or transportation of excise goods is that they will not be offered for restoration. This policy is designed to be robust in order to protect legitimate UK trade and prevent illicit trade in excise goods.

However, at the discretion of the Commissioners, vehicles may be offered for restoration or restoration on terms in the following circumstances;

Where the excise goods were destined for supply on a "not for profit" basis, for example for reimbursement.

Where the excise goods were destined for supply for profit; providing the quantity of excise goods is small and it is a first offence.

Where the vehicle was owned by a third party who was not present at the time of seizure of the vehicle, and was either blameless or had taken reasonable steps to prevent smuggling in their vehicle".

Mr Brenton based his decision on the second review upon a finding which he arrived to

the effect that the vehicle had as at 16 October 2002 been a family vehicle, jointly owned by the Appellant and her husband, rather than being a vehicle owned by the Appellant alone in her own right. He relied upon the fact that Gerald McLarnon had been involved in paying the deposit for the vehicle, and was an additional named driver on the Appellant's insurance policy. He relied upon the decision in Scott –v- The Commissioners of Customs and Excise [2004] MAN/03/8098. He concluded that Mr and Mrs McLarnon had between them owned two family vehicles which were available for each other's use as and when appropriate. This arrangement was one of shared ownership and shared use, and as such did not fall within the ambit of the Commissioners' criteria for Third party ownership as set out in their policy. To restore the vehicle to the Appellant would be tantamount to restoring it to the perpetrator of the crime.

Submissions on behalf of the Appellant

The submissions which the Tribunal received on behalf of the Appellant can we believe be summarised as follows. Firstly, it was contended that the decision of Mr Brenton on the second review was procedurally flawed in that the Review Officer had paid little or no attention to the agreed Statement of Facts, and in that his decision had also been based upon other facts and documentation not contained within or referred to in the agreed Statement. Secondly, it was argued that the decision was substantially flawed in that it incorrectly sought to classify the Appellant's case as being other than one involving an innocent and blameless third party. The second review decision was criticised as resting upon a finding made to the effect that the vehicle had been a family car, without clarification being provided as to precisely what this phrase meant or was intended to mean. The term "family car" was, it was argued, a vague and uncertain term, which represented a wholly unsatisfactory basis for the review decision to rest upon. Counsel for the Appellant compared the term family car to the term "family assets" as criticised in such decisions as Pettit –v- Pettit [1969] 2 All E.R. 403, Gissing –v- Gissing [1970] 2 All E.R. 784 and Cowcher –v- Cowcher [1972] 1 All E.R. 942, seeking to describe the term as being one which in some contexts conveniently afforded little or no assistance in determining property rights. He also sought to attack the Respondent's policy together with its application to the facts of the present case, in that the policy contained no reference whatsoever either to family property, or otherwise to jointly owned property.

Submissions on behalf of the Respondents

On behalf of the Respondents it was argued that the terms of the restoration policy insofar as they applied to alleged third party owners had not materially changed since the decision in Hoverspeed Limited –v- Customs and Excise Commissioners [2002] 3 WLR 1219. It was submitted that Mr Brenton had correctly applied the policy in the present case; that his decision had not been procedurally flawed as alleged, and that the evidence demonstrated that he had taken account of all relevant matters, and had not taken into account irrelevant matters. It was submitted that the Appellant did not fall to be dealt with under the policy as a third party owner because her husband had been a joint owner of the vehicle with her, and that he had upon his own admission been involved in large scale cigarette smuggling. Consequently, it was submitted, for the vehicle to have been returned to her as joint owner would amount to restoration to both herself and her husband, and would be tantamount to restoring the vehicle to the perpetrator of the crime. Whilst counsel for the Respondents accepted that the restoration policy relied upon by Mr Brenton did not expressly deal with jointly owned vehicles, that of itself gave no indication to the effect that Mr Brenton had arrived at a decision which could not reasonably have been arrived at, and that that was the test which the Tribunal was required to adopt pursuant to section 16[4] of the Finance Act 1994.

Conclusions

This appeal comes before the Tribunal under section 16[4] of the Finance Act 1994. Under that section, where but only where the Tribunal is satisfied that the Commissioners or other person making the decision which is the subject matter of the appeal could not reasonably have arrived at that decision, the Tribunal has power to do one or more of the following, that is to say –

(a) to direct that the decision, so far as it remains in force, is to cease to have effect from such time as the Tribunal may direct;

(b) to require the Commissioners to conduct, in accordance with the directions of the Tribunal, a further review of the original decision; and

(c) in the case of a decision which has already been acted upon or taken effect and cannot be remedied by a further review, to declare the decision to have been unreasonable and to give directions to the Commissioners as to the steps to be taken for securing the repetitions of the unreasonableness do not occur when comparable circumstances arise in future.

We are satisfied on the evidence before us that Mr Brenton's second review was not procedurally flawed as contended for by the Appellant. In connection with that second review it seems to us that Mr Brenton was required to have regard to all of the evidence, and we are satisfied that that is what he proceeded to do. Mr Brenton had told the Tribunal that he took into account the contents of the Agreed Statement of Facts, and we are satisfied that this is what he did. We agree with counsel for the Respondents that there is nothing in the wording of the Agreed Statement of Facts to indicate that the second review was ever intended to be carried out solely on the basis of its contents alone.

Secondly, as to the contents of the Respondents' restoration policy, we would make the following observations. We can readily see and understand why it should be the case that where a smuggler has either a legal or equitable interest in a seized vehicle, there should be no restoration of that vehicle even though another innocent party may also have property rights in that same vehicle. We accept that for such a vehicle to be restored would simply amount to the vehicle being handed back to the perpetrator of the crime which had lead directly to its seizure in the first instance. It is of course not for us to determine what should or should not appear in the wording or contents of such a policy as this. Furthermore, we accept the submission put forward by counsel for the Respondents who argued that the mere fact that the policy does not expressly deal with jointly owned property does not inevitably lead to the conclusion that the Review Officer has come to a decision which could not reasonably have been arrived at. However, we nevertheless anticipate that in reality it must not infrequently turn out to be the case that smugglers and innocent third parties are found to hold between themselves the legal or beneficial interest in a particular seized vehicle, and in such circumstances we certainly would have preferred the policy to have given some specific guidance as to how and upon what basis such cases will be approached and determined.

The central issue in this case, it seems to us, is as to whether the Appellant was in reality the sole owner of the seized vehicle, as contended for by her, or as to whether in the alternative the vehicle was at the date of its seizure the jointly owned property of the Appellant and Gerald McLarnon, as contended for by the Respondents. On the evidence before us we are wholly satisfied that as at the date of its seizure on 16 October 2002 the vehicle was solely owned by the Appellant, and we make a finding to that effect. The vehicle was purchased for £31,815.00. Apart from the £500 deposit which had already been paid, the balance monies which paid for the Mercedes came from two sources: the £13,000 cheque written by Harry McLarnon out of the funds previously given to him by his son for safekeeping, and a balance of £18,315 in cash out of those same funds; a total of some £20,000 in cash having been previously given to the Appellant by Harry McLarnon. It is common case that the Appellant already had a significant beneficial interest in the £67,923.23 handed over by Gerald McLarnon to his father on 22 March 2001. The precise extent of that beneficial interest we do not consider we have to determine. We think it important that, as Harry McLarnon made clear in his evidence to the Tribunal, he duly informed his son of what he was doing. He went on to explain to the Tribunal that his son was angry with him, Gerald took no steps whatsoever to interfere with the transfer of any part of the funds to the Appellant, nor took any steps to attempt to recover those funds or any part thereof. We find that in the £31,315.00 paid over by and on behalf of the Appellant in respect of the car, the Appellant already held a substantial beneficial interest, the precise extent of which we do not need to determine. The rest of the beneficial interest in the £31,315.00 would previously have vested in Gerald McLarnon. However, we find that due to the fact that Gerald McLarnon was told by his father what he was doing with £31,315.00 of the monies previously given to him by his son for safekeeping, and due to the fact that upon having been so informed Gerald took no steps whatsoever to interfere with the transfer of any part of those funds to the Appellant, nor took any steps to attempt to recover those funds or any part thereof, the correct interpretation to be placed upon Gerald's actions in this regard is that he as consenting to a release of such beneficial interest as he himself would have held in the said sum of £31,315.00, and the transfer of full ownership in those monies to the Appellant. We find therefore that whenever the said sum of £31,315.00 came to be paid over to Messrs Isaac Agnew in respect of the vehicle, the beneficial interest in those monies was held solely and exclusively by the Appellant, Gerald McLarnon having in our assessment previously divested himself of any such interest in those monies which he might previously have held. The deposit of £500 certainly came from Gerald McLarnon; we construe that payment to have been in the nature of an advancement made by him in favour of the Appellant, and the fact that it was paid by Gerald McLarnon rather than by the Appellant herself does not therefore impact at all upon our findings as outlined above.

The decision of the Review Officer Mr Brenton, on second review, was based upon a false and incorrect premise, namely that the vehicle had at the time of its seizure not been the sole property of the Appellant, and had rather been jointly owned by the Appellant and Gerald McLarnon. In view of our findings and conclusions as outlined above, it seems to us that that decision is wholly unsustainable and cannot stand. In view of our findings and conclusions as outlined above we allow this appeal, and order a further review. We direct that the Respondents conduct a further and third review of the decision to refuse restoration of the vehicle, and serve the same on both the Appellant and the Tribunal within 30 days of the release of this decision.

We direct that the review should be carried out by a Review Officer who has not previously been involved in this matter, and should be based upon the findings of fact which we have made in this decision, and upon the contents of the Agreed Statement of Facts. We direct that the Respondents shall pay to the Appellant the Appellant's costs of this appeal on the standard basis as agreed or taxed in default of agreement.

ALISTAIR F.W. DEVLIIN

CHAIRMAN

RELEASED: 30 September 2005

LON/04/8046

LON/03/8108