R (WG White Ltd) v Secretary of State for the Environment, Transport and the Regions
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE FORBES,‘MR JUSTICE FORBES’ |
| Judgment Date | 30 November 2001 |
| Neutral Citation | [2001] EWHC 1151 (Admin) |
| Docket Number | 2001 Folio No CO/2178/01 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 November 2001 |
[2001] EWHC 1151 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
The Strand
London WC2 A2U
Mr Justice Forbes
2001 Folio No CO/2178/01
MR D KOLINSKY and MISS KILROY (instructed by Brookstreet Des Roches, 1 Des Roches Square, Witney, Oxon) appeared on behalf of the Claimant.
MR T WARD (instructed by the Treasury Solicitor) appeared on behalf of the Defendant.
Friday 30 November 2001
Introduction
1. The claimant in these proceedings, WG White Ltd (“Whites”) is a company whose business includes the importation of caviar from the Russian Federation. The first defendant, the Secretary of State for the Department of Environment, Food and Rural Affairs (to give it its current title) is the UK's managing authority for the purpose of ensuring compliance with the Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”), in succession to the Department of Environment, Transport and the Regions (“DETR”). The UK is a signatory to CITES. Hereafter I will refer to the first defendant as “the Secretary of State”. The second defendants, HM Commissioners of Customs and Excise, are responsible for enforcement action including the seizure and destruction of goods imported in breach of various enactments including CITES, which is given effect in European Union law by means of Council Regulation (EC) 338/97 and Commission Regulation (EC) 939/97 (as to which regulations, see below).
2. In these proceedings Whites seek appropriate relief by way of judicial review of the decisions by the Secretary of State, through his duly authorised department officials, contained in letters dated 1 March 2001 and 4 May 2001 whereby he refused to grant Whites a retrospective permit to import 87.995 kg of Oscietra caviar from the Russian Federation.
The factual background
3. On 22 December 2000 Whites were issued with importation licenses for the following quantities of caviar: Oscietra—308.055 kg, Sevruga—430.8 kg and Beluga—99.84 kg, which quantities corresponded with those given in the export permit which had already been issued to Whites by the Russian export authorities in respect of that particular consignment of caviar. However, when the consignment of caviar arrived in the United Kingdom, Whites discovered that the quantities actually delivered were: Oscietra—396.05 kg, Sevruga—354.70 kg and Beluga—96.35 kg. Accordingly the consignment contained an excess of 87.995 kg of Oscietra caviar above the amount stipulated in the export and import permits and there was a deficiency of 76.10 kg and 3.49 kg respectively with regard to the Sevruga and Beluga caviar. Overall there was a total excess of 8.405 kg of caviar.
4. It is not possible to say with any degree of certainty how the wrong quantities of caviar came to be exported from Russia. However, it is common ground that, whatever the reason, no fault attaches to Whites. Furthermore, it is accepted that Whites have behaved responsibly throughout. As soon as the discrepancies were discovered, Whites reported the matter to the authorities on 15 January 2001. On 17 January 2001 Whites sent a letter by fax to the DETR as follows:
“Dear Mr Thrift.
I refer to a recent shipment of Russian caviar which we received against the import licences No. 233647/01-06, issued on the 22nd December, against the Russian export permit 0198/2000.
On receipt of the shipment, we diligently checked each and every case for contents and quality of the caviar. During the course of this we found discrepancies with regard to the type of caviar and weight that had been declared on entry into the UK.
In view of the fact that these goods were entered under bond, and in consideration of our responsibilities in this regard, and also of CITES regulations, we informed both your office and our customs officials of these discrepancies, which are noted below ….
As can be seen from the above, we were short delivered on the Sevruga caviar by 76.10 kg, short on Beluga by 3.49 kg and over delivered on Oscietra by 87.995 kg. In comparison to the total of all six licenses, we received 8.405 kg in excess of the declared weights.
The suppliers in Russia have admitted the errors, and have issued us with an amended invoice, a copy of which is attached, for which payment in full has now been made by us.
I am sure that you will accept that if we had not openly declared these discrepancies to both Customs and CITES officials, it is unlikely that they would have come to their attention.
However, we have now been informed by the CITES officials at Heathrow that it is their intention to seize the excess weight of Oscietra (87.995 kg) with the view of destroying the product, at a loss to this company of US$ 43,997.50.
On reflection, I am sure that you will appreciate that we are the innocent party in this matter, and to penalize us to the extent which is intended for our diligence in following the letter of the law in this regard, would seem somewhat unjust.
I therefore seek your help in the matter, and ask that you kindly consider this appeal against the proposed action of seizure and needless destruction of this valuable product.”
5. Section 49(1) of the Customs and Excise Management Act 1979 (“the 1979 Act”) provides that where any goods are imported contrary to any relevant prohibition or are found not to correspond with the entry made thereof they are liable to forfeiture. Section 141(1)(b) of the 1979 Act renders any other thing mixed, packed or found with such a thing liability to forfeiture. Section 139(1) of the 1979 Act provides to an officer of the Commissioners of Customs and Excise (the second defendants in this case) power to seize or detain any thing liable to forfeiture.
6. So it was that on 18 January 2001 the second defendants detained the caviar as liable to forfeiture pursuant to section 139 of the 1979 Act. Whites were duly advised by the DETR that it would be necessary for them to apply for a retrospective import licence in order to regularise and make lawful the importation in question.
7. In the meantime, on 2 February 2001, the DETR wrote by fax to the relevant Russian authorities in the following terms:
“Dear Mrs Semianova
W G White—Import of Caviar—Russian Export Permit No. 0198/2000
Please see the attached copies of the Russian CITES Export Permit, a fax from W G White and a copy of an invoice from JSC ‘Expo-em’ to W G White, the UK importer. I understand that you are familiar with this case.
As will see, from the Russian CITES Export Permit, a total of 308.055 kg of Acipenser gueldenstaedti [that is the Sevruga caviar] was allowed for export to W G White. However, the Russian exporter being unable to provide the full amounts of other caviar on order, substituted an extra amount of 87.99 kg of Acipenser gueldenstaedi to make up the short fall.
Because the excess amount of caviar is not covered by a Russian Export Permit and the UK Import Permit, the UK Customs have detained the consignment.
We accept that an error was made and are prepared to either re-issue an amended Import Permit or a new one, but we need prior sight of the Russian Export Permit. I understand W G White are applying for another CITES Export permit to cover the change in the consignment and the extra 87.995 kg of caviar.
I understand from W G White that you are unable to issue another Export Permit for the caviar until your quotas for the year 2001 have been agreed. However, as this caviar was exported at the end of December 2000, it would appear that the excess caviar should be deducted from the Russian quota for the year 2000. As such this should not cause any hindrance to you issuing the necessary Export Permit.
Please advise me when you will be issuing the permit and fax a copy to me at the above address and fax number.”
8. However, on 28 February 2001 the Russian authorities replied to the DETR by fax in the following terms:
“The CITES Sturgeon MA of Russia studied your faxes relating export from Russia to Great Britain of the sturgeon caviar.
In accordance with the appliance and presented documents by the exporter confirmed the legality in origin of the caviar, the export permit was issued to JSC ‘Expo-Em’:
Acipenser Gueldenstaedtii-N72-244,055 kg/133 tinsp; N71-6400 kg/128 tins.
The Company JSC ‘Expo-Em’ presented to our office the copies of the export permit, the licence of the Ministry of Economic development and trade and the customs declaration with the customs office's stamp verifying crossing the border by the consignment according to the export permit N 0198/2000 of Nov 20, 2000, security stamp RU 9127286.
The issuing of the export retrospective permit for caviar of Acipenser gueldenstaedtii in quantity of 87,995 kg is impossible, as the necessary documents to obtain the permit were not presented.”
9. Having regard to the contents of the Russian authorities’ fax of 28 February which indicated that an appropriate export permit for the excess of caviar would not be issued, Mr John Hounslow, the duly authorised official in the DETR who was in charge of dealing with the matter, took the view that the conditions laid down in the relevant European Community regulations for the issue of a retrospective import licence (as to which see below) had not been satisfied. He therefore authorised the refusal of Whites’ application for a retrospective import licence. That refusal, which is the first decision under challenge in these proceedings, was communicated by letter dated 1 March 2001 as follows:
“I refer to your application which I received on 19 January 2001, for a...
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