Thomas Holdings Limited & Ors, R (on the application of) v The Commissioners for HMRC
| Judgment Date | 08 July 2025 |
| Neutral Citation | [2025] EWHC 1660 (Admin) |
| Date | 08 July 2025 |
| Year | 2025 |
| Court | King's Bench Division (Administrative Court) |
Case No: AC-2008-LON-005741
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Tuesday 8th July 2025
Neutral citation: [2025] EWHC 1660 (Admin)
Before :
MRS JUSTICE EADY DBE
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Between :
THE KING on the application of
(1) THOMAS HOLDINGS LIMITED
(2) THOMAS ESTATES LIMITED
(3) MECHANISED PROJECT MANAGEMENT
(4) MPM INVESTMENTS
(5) WM NOBLE (AUTOMATICS) LIMITED
(6) SUMMIT LEISURE (CLAYTON) LIMITED
(7) BJ’S LEISURE LIMITED
(8) SUMMIT LEISURE (NORTHUMBERLAND) LIMITED
Claimants
- and -
THE COMMISSIONERS FOR HIS MAJESTY’S
REVENUE AND CUSTOMS
Defendants
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KIERON BEAL KC, RHYS JONES (instructed by PricewaterhouseCoopers LLP) for the
Claimants
ELENI MITROPHANOUS KC, JOANNA VICARY, JAMES ABERNETHY (instructed by the
General Counsel and Solicitor to His Majesty’s Revenue and Customs) for the Defendant
Hearing dates: 10-12 June 2025
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Approved Judgment
This judgment was handed down remotely at 11am on [Tuesday 8th July 2025] by circulation
to the parties or their representatives by e-mail and by release to the National Archives.
.............................
MRS JUSTICE EADY
Judgment Approved by the court for handing down.
R (oao Thomas Holdings and ors) v HMRC
2
Mrs Justice Eady DBE:
Contents
Heading
Paragraphs
Introduction
1-4
The Background Facts
Relevant statutory provisions
Whether the disputed machines were “gaming machines” – the decision in Rank
The evolution of the disputed machines
HMRC’s interactions with BACTA and the letters of 18 August and 3 September 2004
The BACTA Code of Practice and Factsheet October 2004
The Noble claimants and HMRC’s letter of 26 October 2004
The Thomas claimants and HMRC’s letter of 13 May 2005
HMRC’s position going into 2005
BACTA’s revised guidance, October 2005
The configuration of disputed machines operated by the claimants
Linneweber and legislative changes –HMRC’s position in late 2005
2006 and the Vale report
Retrospective licences and VAT assessments
5-62
The Extra-Statutory Concessions and Decisions Under Challenge
The extra-statutory concessions
The Thomas claimants
The Noble claimants
63-76
The Legal Framework and My Approach
77-83
The Claim and the Parties’ Submissions
The claimants’ case
HMRC’s position
84-91
Analysis and Conclusions
Preliminary observations
HMRC’s position – introductory observations
HMRC statements made in the O’Kane letters of 18 August and 3 September 2004
HMRC’s position to July 2006
The Thomas claimants –HMRC’s letter 13 May 2005
The Thomas claimants –HMRC’s 26 June 2006 refusal of input tax claim
The Noble claimants –HMRC’s letter of 26 October 2004
92-135
Judgment Approved by the court for handing down.
R (oao Thomas Holdings and ors) v HMRC
3
Ground 1: the misdirection ESC
The misunderstanding ESC – general observations
Ground 2 – the misunderstanding ESC – Thomas claimants
Ground 2 – the misunderstanding ESC – Noble claimants
Disposal
136
Introduction
1.This is my judgment on the claimants’ claims for judicial review of decisions of the
Commissioners for His Majesty’s Revenue and Customs (“HMRC”) to refuse to apply extra-
statutory concessions in respect of assessments of Amusement Machine Licence Duty
(“AMLD”) relating to a category of machines (“the disputed machines”) operated by the
claimants in amusement arcades and bingo halls. It is not in dispute that the assessments were
correct, because the disputed machines were properly to be treated as “gaming machines” as
defined by section 25(1A) of the Betting and Gaming Duties Act 1981, where “the outcome of
the game is inherent in the action of the machine”. It is the claimants’ case, however, that, in
relation to each assessment, an extra-statutory concession (“ESC”), in the form of the
misdirection ESC or the misunderstanding ESC (both in force at the relevant time), ought to
have been applied such that the AMLD liabilities in question would not be enforced.
2.The claimants fall into two groups: the first and second claimants are companies formerly
owned by the Thomas family (they were sold to Riva Gaming Limited on 12 August 2006); the
third to eighth claimants are part of what is known as the Noble group of businesses. Both
groups of claimants have operated bingo halls and amusement centres in the United Kingdom
since the 1960s; they are also involved in the development and provision of gaming equipment.
Where necessary to distinguish between the two groups of claimants in this judgment, I refer
to them as the “Thomas claimants” or the “Noble claimants”.
3.The relevant period of assessment for the first and second claimants was from December 2004
to July 2006; that for the remaining claimants, from January 2005 to July 2006. Until 18 April
2005, the relevant defendants would have been the Commissioners of HM Customs and Excise;
for ease of reference, however, throughout this judgment I have simply used the title “HMRC”.
4.For the hearing, a large amount of documentation was introduced through statements from the
following witnesses:(1) for the claimants: (a) Mr James Simon Thomas, formerly managing
director of the Thomas claimants between 1989 and August 2006, and a member of the national
council of the trade association, the British Amusement and Catering Trades Association
(“BACTA”); (b) Mr David Harmon Biesterfield, group legal and development director for the
Noble claimants, where he has largely worked since February 1986; (c) Mr Nicholas Harding,
chief executive officer of various (non-claimant) companies operating amusement and/or bingo
premises in the UK; (d) Mr Stephen Whitelaw, co-founder and managing director of a business
providing hardware, software and game design for various sections of the machine-gaming
industry worldwide; (e) Mr Leslie MacLeod-Miller, solicitor and formerly BACTA’s general
counsel (2004-2007) and chief executive (2007-2014); (f) Mr Anthony Dennis Boulton, part of
a business involved in the design and manufacture of amusement machines in the UK at the
relevant time; (g) Mr Andrew Glennon, group chief financial officer in a group of companies
involved in the amusement/leisure industry (now including certain of the Noble claimant
companies); and (h) Mr Victor Mark Cramer, director and solicitor at PwC, with the
management and day-to-day conduct of these proceedings for the claimants; and (2) for HMRC:
(a) Mr Philip John Levy, HMRC anti-avoidance; (b) Ms Emma Cox, HMRC anti-avoidance;
(c) Mr Brian O’Kane, HMRC gambling duties policy team; and (d) Ms Louise Burt, HMRC
compliance (large business section).
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