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On appeal from: [2017] EWCA Civ 956

This appeal considered whether HMRC have the power to allow an alcohol wholesaler, who HMRC have identified as unfit to operate in the industry, to continue to trade lawfully on a temporary basis while the wholesaler is awaiting the outcome of their appeal against HMRC’s decision. It also considered whether the High Court is entitled to grant interim relief to enable such an alcohol wholesaler to continue to trade lawfully while they are awaiting the outcome of their appeal against HMRC’s decision.

The Supreme Court unanimously allowed HMRC’s appeal against the Court of Appeal’s conclusion that HMRC has the power to permit temporary trading under the Alcoholic Liquor Duties Act 1979, s 88C. This was because HMRC concluded that the wholesalers were not fit and proper, regardless of any conditions that could be imposed, including a time limit on the approval, and therefore HMRC did not have the power to grant temporary approval pending appeal.

The Court unanimously dismissed the wholesalers’ appeal against the Court of Appeal’s determination that HMRC does not have that power under the Commissioners for Revenue and Customs Act 2005, s 9. This was because   the Court considered that recourse could not be had to s 9 to provide an alternative route to time limited approval, supplementing s 88C in the way that the wholesalers suggest, as this would result in HMRC appearing to hold out as fit and proper a person in relation to whom they have formed the opposite view.

The Court considered what form the High Court’s order could legitimately take, where a case for injunctive relief was made out. The Court determined that the High Court’s power to order a mandatory injunction is exercisable for the purpose of making a person do something that he has it within his powers to do. However in this case, there is nothing HMRC could properly do in the exercise of their statutory functions. As  the case for relief was not made out in the present case, the Court  concluded it was undesirable to make a definitive pronouncement on this matter.

For judgment, please download: [2019] UKSC 30
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (12 Jul 2018 morning session) (12 Jul 2018 afternoon session)