Palmer Agencies Limited Application for Judicial Review
| Jurisdiction | Northern Ireland |
| Judge | Humphreys J |
| Judgment Date | 23 March 2023 |
| Neutral Citation | [2023] NIKB 35 |
| Date | 23 March 2023 |
| Court | King's Bench Division (Northern Ireland) |
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Neutral Citation No: [2023] NIKB 35
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: HUM12106
Delivered: 23/03/2023
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
KING’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY PALMER AGENCIES LIMITED
FOR JUDICIAL REVIEW
___________
Richard Coghlin KC & Robert McCausland (instructed by McIldowies) for the Applicant
Tony McGleenan KC & Gordon Anthony (instructed by Belfast City Council, Legal
Services) for the Respondent
___________
HUMPHREYS J
Introduction
[1] The applicant company describes itself as an importer and distributor of
‘Hallowe’en and party products’ throughout the United Kingdom, Ireland and
further afield.
[2] Its application for judicial review raises significant points of substance and
procedure in relation to the importation of goods of this nature into
Northern Ireland in the post-Brexit environment. In particular, the applicant seeks
to impugn the decision by the respondent, Belfast City Council, to classify goods
imported as ‘toys’ within the meaning of the Toys (Safety) Regulations 2011 (‘the
2011 Regulations’) and also the consequential decision to detain the goods pursuant
to the powers contained in the Market Surveillance (Northern Ireland) Regulations
2021 (‘the 2021 Regulations’).
Background
[3] In May 2021 part of a consignment of goods imported by the applicant from
the USA was subject to a customs hold, and the respondent later determined that the
products failed to meet the standards of the 2011 Regulations. An August 2021
consignment was subject to a similar partial customs hold.
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[4] However, it is the actions taken in relation to the consignment imported by
the applicant in October 2021 (number 515-00319P) which are the subject of these
judicial review proceedings. This relates to Hallowe’en products emanating from a
USA-based company named Fun World.
[5] On 22 October 2021 Leona Kelly, Senior Environmental Health Officer of the
respondent, emailed the applicant’s freight agent a ‘Market Surveillance Temporary
Suspension Notice’ stating:
“Belfast City Council as the Market Surveillance
Authority has 72 hours within which a decision will be
made as to whether the products can be released from
their temporary suspension.”
[6] On 29 November 2021 the respondent explained that it was notified by the
Office for Product Safety and Standards (‘OPSS’), part of the Department for
Business, Energy and Industrial Strategy, of the consignment and had thereafter
carried out an examination in its capacity as the market surveillance authority. A
number of items had been removed and sent for testing.
[7] On 3 February 2022, following the receipt of a pre-action protocol letter, the
respondent made the following points:
(i) It had acted lawfully at all material times;
(ii) The hold was placed on products not by it but by OPSS and/or by HMRC
acting in conjunction with OPSS;
(iii) The goods being held were ‘toys’ and were not compliant with the provisions
of the 2011 Regulations read in accordance with the relevant guidance.
[8] In an email dated 11 February 2022, Ms Kelly confirmed that all test results
had been received and some of the goods could be released. In respect of the
remainder, she stated:
“The goods detailed in the attached document FA HOLD
will remain subject to a customs hold as they are not
compliant with the requirements of toy safety regulations
and will therefore not be released into free circulation”
[9] The goods the subject of the hold were identified as follows:
(i) 25th Anniversary Movie Mask
(ii) DBD Mask Viper Face Style Only
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