Expert Witness Institute v Commissioners of Customs and Excise
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CHADWICK,Lord Justice Longmore |
| Judgment Date | 12 December 2001 |
| Neutral Citation | [2001] EWCA Civ 1882 |
| Docket Number | Case No: A3/2001/0506 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 December 2001 |
[2001] EWCA Civ 1882
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(Mr Justice Lloyd)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Chadwick
Lord Justice Longmore and
Mr Justice Harrison
Case No: A3/2001/0506
Mr Richard Drabble QC (instructed by KLegal, London for the Respondent)
Mr Michael Patchett-Joyce & Miss R. Haynes(instructed by Commissioners of Customs & Excise for the Appellants)
This is an appeal against an order made on 15 February 2001 by Mr Justice Lloyd on an appeal by The Expert Witness Institute against a decision of the London VAT and Duties Tribunal (Dr A N Brice, chairman, Mr Bernard Coode FFA and Mr A Khan) released on 22 September 2000. The Tribunal had confirmed the decision of the Commissioners of Customs and Excise, contained in a letter dated 12 July 1999, that supplies of goods and services made by the Institute were not exempt supplies for the purposes of value added tax. The judge allowed the appeal, on the grounds that the Institute was a non-profit making organisation with aims of a civic nature; and so within paragraph ( l) of Article 13A(1) of EC Council Directive 77/388/EEC. The Commissioners appeal with the permission of this Court (Lord Justice Aldous) granted on 29 March 2001. The applicable provisions in Community and domestic law
EC Council Directive 77/388/EEC – the Sixth Council Directive on the harmonisation of the laws of Member States relating to turnover tax was issued on 17 May 1977. Article 1 of the Sixth Directive required Member States to give effect to the provisions of the directive in their own domestic legislation. The United Kingdom legislation is now contained in the Value Added Tax Act 1994. 3. Section 4(1) of the 1994 Act provides that value added tax shall be charged on any supply of goods and services made in the United Kingdom, where it is a taxable supply made by a taxable person in the course or furtherance of any business carried on by him. Section 4(2) defines “taxable supply” as a supply of goods or services made in the United Kingdom other than an exempt supply. A supply of goods or services is an “exempt supply” if it is of a description for the time being specified in Schedule 9 of the Act – see section 31(1).
It is not in dispute that Schedule 9 to the 1994 Act was enacted in order to give effect to the requirement in article 13A(1) of the Sixth Directive that, without prejudice to other Community provisions, “Member States shall exempt the following under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of such exemptions and of preventing any possible evasion, avoidance or abuse: …” There follow seventeen paragraphs which, as the cross-heading to Article 13A suggests, describe “certain activities in the public interest”. Paragraph ( l) is in these terms:
“supply of services and goods closely linked thereto for the benefit of their members in return for a subscription fixed in accordance with their rules by non-profit making organisations with aims of a political, trade union, religious, patriotic, philosophical, philanthropic or civic nature, provided that this exemption is not likely to cause distortion of competition;”
There are set out in Schedule 9 to the 1994 Act, grouped under fifteen heads, a large number of activities in relation to which the supply of goods or services are to be treated as exempt supplies for the purposes of the Act. Group 9 in Schedule 9 is in these terms (so far as material):
“GROUP 9 – SUBSCRIPTIONS TO TRADE UNIONS, PROFESSIONAL AND OTHER PUBLIC INTEREST BODIES
Item No.
1. The supply to its members of such services and, in connection with such services, of such goods as are both referable only to its aims and available without payment other than a membership subscription by any of the following non-profit-making organisations –
(a)a trade union or other organisation of persons having as its main object the negotiation on behalf of its members of the terms and conditions of their employment;
(b)a professional association, membership of which is wholly or mainly restricted to individuals who have or are seeking a qualification appropriate to the practice of the profession concerned;
(c)an association, the primary purpose of which is the advancement of a particular branch of knowledge, or the fostering of professional expertise, connected with the past or present professions or employments of its members;
(d)an association, the primary purpose of which is to make representations to the Government on legislation or other public matters which affect the business or professional interests of its members.
(e)a body which has objects which are in the public domain and are of a political, religious, patriotic, philosophical, philanthropic or civic nature.
Notes
…
(3)Item 1 shall include organisations and associations the membership of which consists wholly or mainly of constituent or affiliated associations which as individual associations would be comprised in the item; and “member” shall be construed as including such an association and “membership subscription” shall include an affiliation fee or similar levy.
(4) Paragraph (c) does not apply unless the association restricts its membership wholly or mainly to individuals whose present or previous professions or employments are directly connected with the purposes of the association.
(5)Paragraph (d) does not apply unless the association restricts its membership wholly or mainly to individuals or corporate bodies whose business or professional interests are directly connected with the purposes of the association.”
The group description (formerly “Trade Unions and Professional Bodies”) was amended, and paragraph (e) was added, by The Value Added Tax (Subscriptions to Trade Unions, Professional and Other Public Interest Bodies) Order 1999 (SI 1999/2834).
The 1999 Order took effect from 1 December 1999. It was not in force at the date (12 July 1999) of the Commissioners' decision letter which has given rise to these appeals. In those circumstances both the Tribunal and, on appeal, the judge took the view that the provisions of article 13A(1)( l) of the Sixth Directive – so far as unimplemented by domestic legislation at the date of the Commissioner's decision letter – should be given direct effect. On this appeal, however, both parties have invited the Court to proceed on the basis that the determinative provision is that now contained in United Kingdom domestic law – that is to say, in paragraph (e) of item 1 of Group 9 in Schedule 9 to the 1994 Act. Whether or not, on a strict analysis, that is, the correct approach in the circumstances, it is obviously sensible that our decision on an appeal for which permission was granted on the basis that it raised an important point of principle should be treated as a decision on the provisions in the 1994 Act. It has not been suggested that the implementation in domestic law of the formerly unimplemented provisions in paragraph ( l) of Article 13A(1) of the Sixth Directive has altered the scope and effect of those provisions. But it is now no longer necessary to give them the effect which they should have by a direct application of Community law. They can be given effect, as the Sixth Directive requires, under domestic law.
The Institute
The Expert Witness Institute was incorporated under the Companies Acts 1985 to 1989 as a company limited by guarantee and not having a share capital. Its objects are set out in clause 3 of the memorandum of association:
“The objective for which the Institute is established is the support of the proper administration of justice and the early resolution of disputes through fair and unbiased expert evidence, and in particular:
a)To provide support to and an organisation for experts of all professional disciplines and other occupations requiring skills and judgement.
b)To provide training for experts whether by way of courses, seminars, conferences or otherwise to maintain and enhance high professional standards in expert witnesses and their status.
c)To act as a voice for expert witnesses, especially in communicating with the media.
d)
To encourage lawyers to make use of experts wherever specialised knowledge is required.
e)To make representations to Government, Governmental Departments, Authorities or to other Professional Bodies and Associations wherever appropriate.
f)To work actively with other Professional Bodies and Associations to ensure that any of their members who wishes to be an expert witness has the necessary education, training, support and ability.
g)To carry on any other trade or business which can, in the opinion of the Board of Directors, be advantageously carried on by the Institute, and to do all such other things as are incidental to, or which the Institute may think conducive to, the achievement of the objects of the Institute.
PROVIDED ALWAYS that the objects set forth in any sub-clause of this Clause shall not, except where the context expressly so requires, be in anywise limited or restricted by reference to or inference from the terms of any other sub-clause or by the name of the Institute. None of such sub-clauses or the objects therein specified or the powers thereby conferred shall be deemed subsidiary or auxiliary to the objects mentioned in the first sub-clause but the Institute shall have full power to exercise all or any of the powers conferred by any parts of this Clause notwithstanding that the business, undertaking, property or acts...
To continue reading
Request your trial
-
The British Association for Shooting & Conservation Ltd v HM Revenue and Customs
...question: Stichting Uitvoering Financiële Acties v Staatssecretaris van Financiën ( Case 348/87) [1989] ECR 1737; Expert Witness Institute v Customs and Excise Commissioners [2002] STC 13 Both Mr Cordara and Mr Chapman took the two exceptions in reverse order; and so will I. I begin, then,......
-
Commissioners of Customs and Excise v Electronic Data Systems Ltd
...his supplier, whereas a purchaser seeking credit from a bank or another lender received an exempted credit." 26 In Expert Witness Institute v. Customs and Excise Commissioners [2002] STC (CA) 42 (" Expert Witness"), the Court of Appeal had to construe the expression 'aims of a civic nature'......
-
London Borough of Merton Council v Nuffield Health
...to a general rule laid down in the legislation are to be strictly construed: see Expert Witness Institute v Customs and Excise Comrs [2001] EWCA Civ 1882, [2002] 1 WLR 1674, paras 16–17. He submitted that section 43(6) was an exception to the general rule that occupied non-residential her......
-
The Commissioners for Her Majesty's Revenue and Customs v Astral Construction Limited
...does not mean that the provisions must be interpreted restrictively (see Expert Witness Institute v Customs and Excise Commissioners [2001] EWCA Civ 1882, [2002] STC 42 at [17] and HM Revenue and Customs v Insurancewide.Com Services Ltd EWCA Civ 422, [2010] STC 1572 at [83]). Was the work t......