Kingpin European Ltd v Customs and Excise [2004] UKVAT V18695 (16 July 2004)

18695

PROCEDURE – Application to allow appeal – Commissioners’ application for further extension of time to lodge witness statements made three days after time for lodging had expired – Whether resulting delay sufficiently prejudicial to Appellant to warrant appeal being allowed – No – VAT Tribunal rules r.19(4)

LONDON TRIBUNAL CENTRE

	KINGPIN EUROPEAN LTD	Appellant

-	and –

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	STEPHEN OLIVER QC   (Chairman)

Sitting in private in London on 6 July 2004

Eamon McNicholas, counsel, instructed by Matthews Consulting, consultants, for the Appellant 

Kieran Beal, counsel, instructed by Shepherd & Wedderburn, solicitors, for the Respondents

© CROWN COPYRIGHT 2004

DECISION

1.    By a Notice of Application dated 7 January 2004, the Appellant (“Kingpin”) has applied for a direction under rules 18(2) and/or 19(4) of the VAT Tribunal Rules 1986, as amended, that its appeal be allowed without a full hearing on the merits.  Essentially the grounds of the appeal in relation to both directions is that the Commissioners have failed to comply with a direction of the Tribunal, given by Dr Avery Jones, on 22 October 2002.  The other ground for appeal is that there has been inordinate and inexcusable delay by the Commissioners in the conduct of the appeal and that this has caused prejudice to Kingpin.  

2.    To the extent that the application asked for a direction under rule 18(2), it is recognized by both parties that this cannot proceed.  Rule 18(2) enables the Tribunal to dismiss an appeal for want of prosecution where “the appellant or the person to whom the interest or liability of the appellant has been assigned or transmitted … has been guilty of inordinate and inexcusable delay”.  That provision does not empower the tribunal to allow an appeal on the grounds of inordinate and inexcusable delay by the Commissioners.  

Procedural history

3.   What follows is drawn from a document headed “Respondents’ Notice of Objection to Appellant’s Application for the Appeal to be Allowed”.  Mr Eamon McNicholas for Kingpin challenges the inferences and conclusions to be drawn from the summary as set out in the Respondents’ Notice.  Nonetheless, the facts, as set out below, are not in dispute.

4.	On or about 25 October 2000 Kingpin submitted a VAT return in respect of the period 7/97 in which it sought to reclaim VAT in the sum of £280,405.98.  The return was therefore filed three years after the events to which it related.  It was received by the Commissioners on or about 2 November 2000.

5.     As a consequence of the receipt by the Commissioners of the said Return a pre-payment credibility query was issued to the local VAT Office at Colchester.  This query was received by Colchester local VAT Office in December 2000.  On 8 December 2000, Mr Tatum, an Officer of HM Customs and Excise wrote to the Appellant at its address at that time, namely Kings Avenue, Holland-on-Sea, Clacton and confirmed that the VAT Return submitted by Kingpin for the period 7/97 had been referred to him for consideration.  Mr Tatum advised that under the provisions of the Finance Act 1996 claims for repayment more than three years old were generally out of time.  Mr Tatum requested that Kingpin provide further information relating to the claim and reasons why the Commissioners should release the repayment.

6.	No response was received by the Commissioners to that letter and accordingly on 18 January 2001, Mr Tatum contacted Kingpin’s representative to discuss the matter by telephone.  Mr Tatum was advised that further information would be sent to the Commissioners the following week.  On 6 February 2001, a further telephone call was made by Mr Tatum to Kingpin’s representative and a message was left.  On 7 February 2001, Kingpin’s representative advised Mr Tatum that the information would be provided to the Commissioners by the end of that week.

7.	No information was received by the Commissioners and Mr Tatum wrote to Kingpin’s representative on 23 February 2001 to advise that unless the information was provided by 9 March 2001, the claim would be refused.  By letter dated 2 April 2002 Kingpin’s representative Matthews Consulting wrote to Mr Tatum and advised that they were not at that time in a position to provide the information that was required but indicated that it was likely that the information would be available by the third week of that month.

8.	A further letter was sent by Kingpin’s representative to HM Customs and Excise on 16 May 2001 when they advised that the files which they required to view were held by the National Taxing Team and that they were endeavouring to review those files rather than having to await the return of the files.  Kingpin’s representative also advised that they requested the Commissioners’ Debt management Unit to provide information and requested that Mr Tatum ask that Department to provide a reply.

9.	No further information was received by the Commissioners and accordingly on 6 June 2001, Mr Tatum wrote to Kingpin’s representative to advise that as six months had elapsed since his first letter, he was not prepared to keep the case open any longer and was proceeding to reduce the claim to nil.  A second letter dated 6 June 2001 was issued by HM Customs and Excise to Kingpin in which the Commissioners confirmed that the Commissioners considered the amounts reclaimed as input tax in respect of the period 7/97 should be amended to nil (‘the first Decision’).  The basis for this decision was that no evidence had been adduced to support the claim for input tax.

10.	On 2 July 2001 Kingpin submitted a Notice of Appeal to the Tribunal.  Kingpin contended in the said Notice of Appeal that it had been unable to submit a VAT return until after its records had been returned by the Commissioners following the discontinuance of a prosecution against Kingpin’s directors.  It also alleged that it awaited the return of certain solicitors’ files before it would be able to provide the supporting information for the input tax claim.  Kingpin also alleged that the Commissioners had failed to reply to a letter from its representative dated 15 January 2001.

11.	By a letter dated 11 July 2001, the Appeals and Complaints Team of the Commissioners wrote to Kingpin’s representative stating that a reply had been sent to Kingpin’s representative’s letter of 15 January 2001 on 23 January 2001 and that the letter of 5 June 2001 from the Commissioners therefore considered that the request had been dealt with.

12.	Thereafter, by a letter dated 29 August 2001, Mrs Dunn, senior lawyer at the Commissioners’ Solicitor’s Office wrote to Kingpin’s representative informing them that she had spoken to the Senior Investigating Officer from the prosecution case (against Kingpin’s directors) and that she had not been able to identify any further retained papers relating to Kingpin.  The letter stated:

“Please could you advise me, as a matter of urgency, when your client received the papers referred to in your fax of 22 June, and what papers were included which did not belong to Kingpin … .  In any event, it is to be assumed that you, or your client, are currently in possession of the relevant paperwork concerning the return, since this would have been required in order to complete the relevant return. Accordingly please could you advise as to exactly what papers you are instructed remain in the possession of the Commissioners.  Please note, this information is needed urgently in order that I can obtain instructions as to whether or not your application for a 60 day extension is opposed.”

13.	The Commissioners’ solicitors are not aware of any response having been received to this letter. The Commissioners filed a Statement of Case with the Tribunal on or about 8 October 2001.

14.	On or about 12 February 2002, Kingpin filed an Amended Notice of Appeal with the Tribunal. The Amended Notice of Appeal confirmed that the files sought from the National Taxing Team had been made available to Kingpin and its advisers. No other evidence in support of the claim for input tax was adduced.  The position at this stage was therefore that Kingpin had sought to file a VAT return three years after the correct prescribed accounting period on the basis of information or evidence which it was, in fact, unable to substantiate. 

15.	On or about 18 March 2002, the Commissioners filed with the Tribunal an application for directions.  The Commissioners made clear that they no longer intended to rely upon the fact that the VAT return had been filed three years after the prescribed accounting period to which it related as a reason for declining to meet the claim for input tax.  Nonetheless, the Commissioners requested that Kingpin provide them with further and better particulars of its grounds of appeal and any documentary evidence to be adduced in support.  By order dated 4 April 2002, the Tribunal directed that Kingpin should provide further and better particulars of the appeal within 28 days: that is, by 2 May 2002.  Messrs Shepherd & Wedderburn wrote to the Appellant’s representative by letter dated 10 April 2002, indicating that they expected to receive the further and better particulars by 2 May 2002.

16.	Messrs Shepherd & Wedderburn understand that Kingpin filed its further and better particulars (with supporting documentation) with the Tribunal by 1 May 2002.  Unfortunately, this documentation was not then sent on to Shepherd & Wedderburn on behalf of the Commissioners.  On or about 8 May 2002, Kingpin provided the Commissions by fax with a document headed “Replies to a Notice for Directions by the Respondents” dated 29 April 2002, which had been lodged with the Tribunal.  It was clear from the document faxed that the document had been lodged with the Tribunal together with a bundle of photocopies of 53 suppliers’ invoices. Shepherd & Wedderburn wrote to the Tribunal to request that all documents submitted to the Tribunal be sent on to them.  It was not until 31 May that all of the documentation was provided to Shepherd & Wedderburn.  This documentation included 53 invoices from Draykirk Limited which purported to have been used to support the claim for input tax.  The sums set out in the 53 purchase invoices disclosed (‘the Draykirk invoices’) totalled £1,604,781 net of tax and on their face gave rise to a claim for input tax of £280,836.70.  The total sums shown as input tax on the Draykirk invoices therefore tallied substantially with the sums claimed on the VAT return filed by Kingpin for the period 07/97.

17.	The Draykirk invoices cover a range of dates from 9 October 1996 to 5 November 1996, with the vast majority having been raised on 1 November 1996.  Kingpin also indicated that the claim was based on the accompanying invoices and not on any invoices retained by the Commissioners.  Kingpin did not explain why it had taken so long for it to be able to produce the information which had been requested, especially as none of the contested invoices had been retained by the Commissioners.

18.	The Commissioners set out their case in response to Kingpin’s particulars by way of a Reply dated 3 July 2002.  The Commissioners’ Reply stated that, in their view, Kingpin had not demonstrated that it has conducted any trade in the supply of any goods at any material time and Kingpin was required to prove the same to the satisfaction of the Commissioners.  Further, the Commissioners in any event contended that they were entitled to set-off such sums as may validly be reclaimed by Kingpin against an existing and unpaid excise drawback debt incurred by Kingpin on or about 1 April 1997 and amounting to £780,178.09 in diminution or extinction of the sums claimed.

19.	What then happened was that the Commissioners’ officers undertook various investigations to ascertain whether or not the invoices had been raised in the course of genuine onward supplies of lager to customers in other Member States of the European Union. The officers dealing with the VAT appeal were also obliged to investigate the manner in which the excise drawback debt had been incurred.

20.	By letter dated 21 September 2002, Messrs Shepherd & Wedderburn received from the Tribunal a notice that a preliminary hearing would be held on 18 October 2002. This hearing was listed before Dr Avery Jones as Chairman.  The Tribunal directed that, by 29 November 2002, the Commissioners should serve witness statements on Kingpin and on the Tribunal.  After the directions hearing, Counsel for the Commissioners, as I understand the position, discussed with Mr Matthews of Matthews Consulting the question of whether or not Kingpin would be lodging an appeal against the excise debt which was due, as Kingpin did not accept that it was due.  It (at that stage) thought that any such appeal would have to be conjoined with the appeal against the VAT decision.

21.	The Commissioners’ officers with responsibility for the VAT matters were then obliged to liaise with officers dealing with the excise matters.  In addition, the Commissioners’ solicitors and counsel instructed in the excise matter had to be consulted. By a Notice of Application dated 27 November 2002, the Commissioners applied to the Tribunal for an extension of time within which to file the witness statements up until 17 February 2003, to take into account the festive season.  On 28 November 2002, the Proper Office of the Tribunal directed that unless a Notice of Objection was served within 14 days, the application would be allowed unopposed under rule 33(1)(b) of the Tribunal’s rules.

22.	By letter dated 10 December 2002, Matthews Consulting wrote to Ms Carty of Messrs Shepherd & Wedderburn to complain about the extension which had been sought and also to ask why the Commissioners had not sought to contact Matthews Consulting to arrange a meeting to discuss whether or not the issues in the appeal could be narrowed.  That meeting subsequently took place on or about 14 February 2003.  Officer Tatum visited Kingpin’s representative’s offices, with a view to setting out the nature of the information which he required to be satisfied about the supplies of goods from Draykirk Ltd to Kingpin and about the onward supply to customers in other Member States of the European Union.  A number of items of documentation were produced.  Officer Tatum also asked Kingpin to provide a number of other pieces of documentation.

23.	By a Notice of Application dated 20 February 2003, the Commissioners applied for an extension of time for service of the witness statements up to 18 April 2003. The Commissioners indicated in their notice that they needed to consider the further documentation which had been – and which was to be – produced by Kingpin.  The Commissioners indicated that the further period might enable matters to be resolved without further recourse to the Tribunal.

24.	Thereafter, on or about 17 March 2003, the Tribunal listed a hearing for directions for 3 April 2003, on the stated basis that there had been “non-compliance of directions by Customs and Excise.”  By letter dated 26 March 2003, Messrs Shepherd & Wedderburn wrote to the Proper Officer of the Tribunal pointing out that they had sent an application for an extension on 20 February 2003.  By letter dated 27 March 2003, the Tribunal indicated that they had treated Shepherd & Wedderburn’s letter as an application to postpone the directions’ hearing. The hearing listed for 3 April 2003 was therefore cancelled and the parties advised that a further hearing date would be notified in due course.

25.	By letter dated 3 April 2003, Matthews Consulting wrote to the Commissioners on behalf of the Appellant asking for their refusal to pay the input tax claim to be reconsidered.  They provided the following documentation in support of its claim:

(a)	Copies of bank statements;
(b)	Copies of accounts prepared for the periods ending 31 October 1996, 	31 October 1997, 31 October 1999 and 31 October 2001;
(c)	A reconciliation of the purchases and expenses in the accounts;
(d)	Copies of six purchase invoices, sales invoices and SAD forms.

26.	By letter dated 17 April 2003, the Commissioners applied for a further extension of time within which to file witness statements in support of their defence of the appeal. The accompanying Notice of Application explained that the Commissioners’ officers needed more time within which to consider the documents recently produced; and also needed to confirm the current status of the claim for excise drawback with officers who were not involved in the VAT appeal.  A further application was made on 27 June 2003, for a standover of the appeal until 31 July 2003.

27.	By letter dated 30 June 2003, Matthews Consulting wrote to Shepherd & Wedderburn. They contended that the further application for a standover was unacceptable. On 3 July 2003, Shepherd & Wedderburn wrote to the Tribunal to explain the position being adopted by Kingpin and indicating that they presumed that the Tribunal would now fix a hearing to decide the disputed application.  By a letter to the Tribunal dated 7 July 2003, Matthews Consulting set out their grounds of objection to a further extension being granted. They nonetheless indicated that all previous applications for extensions had been “granted by the Tribunal on an unopposed basis.” Matthews Consulting requested a hearing date “at the earliest possible date” to allow the opposed application to be considered.  On 10 July 2003, Shepherd & Wedderburn wrote again to the Tribunal to indicate that they presumed that a hearing would now be fixed in relation to the Commissioners’ opposed application. A directions hearing was thereafter listed by the Tribunal to take place on 28 August 2003 but on 22 July 2003, this hearing was cancelled by the Tribunal because it had been fixed without reference to the availability of the Commissioners’ counsel. By letter dated 23 September 2003, the Tribunal fixed a hearing on Kingpin’s objections to the Commissioners’ standover application to take place on 5 December 2003.  The date was subsequently changed to 4 December 2003.

28.	At the directions hearing on 4 December 2003 Kingpin applied for its appeal to be allowed.  No prior notice of that application had been given.

29.	Following the retirement of Officer Tatum from the employment of the Commissioners, Senior Officer Joe Baines was appointed to consider the further documentation produced by the Appellant and by officers dealing with the excise claim. By a letter dated 9 January 2004, Senior Officer Baines wrote to Kingpin maintaining the Commissioners’ decision to withhold payment of the input tax claimed.  He stated that:

“The Commissioners have examined all the evidence available to them in order to form an opinion as to the exact nature and purpose of the purported transactions. In the Commissioners’ view, the invoices from Draykirk Limited, offered as evidence of input tax entitlement, do not in fact evidence genuine commercial transactions. The alleged transactions have, in the Commissioners’ view, been artificially constructed to generate an entitlement  in circumstances where no genuine onward business supply of any goods can be demonstrated to have taken place.

In particular, the Commissioners will point to the evidence obtained from the extensive criminal fraud investigation undertaken by their officers encompassing the alleged transactions.  One of the many factors that emerged from the fraud enquiries was evidence to cast serious doubt that any alleged exports by Kingpin European Limited to Civitelli Import Srl or Esselunga Produzioni SpA in Italy ever took place. There is unambiguous evidence to support the Commissioner’s view that documents purporting to evidence the sale and export of beers and lagers by Kingpin European Limited to Italian companies are false in material particulars and to permit Kingpin European Limited to proceed with the claim would be an abuse of rights.

In these circumstances, although revising the basis of their earlier decision, the Commissioners remain of the view that there is no entitlement to the repayment claimed on the period 07/97 VAT Return.”

Conclusions on the Application

30.	It will be recalled that the Commissioners had not lodged witness statements by 17 February 2003 (as had been allowed by the Tribunal following the unopposed Commissioners’ application of 27 November 2002 for an extension of time until 17 February 2003). Kingpin, through Mr McNicholas, point to the Commissioners’ failure to have asked the Tribunal for an extension of time (in which to serve their witness statements) beyond 17 February 2003.  Only by obtaining an extension or obtaining a waiver from the Tribunal could the Commissioners’ breach have been cured.  The Commissioners’ failure, argued Mr McNicholas, was not only serious in itself but it went further than that.  Because the Commissioners had not applied to the Tribunal for a waiver of their failure to comply with the 27 November 2002 direction, no new extension could be granted.  The result was that the Tribunal no longer had any jurisdiction.  It was not permissible to deal with the matter as if an application for waiver of the breach had been made.  From that it followed that the Commissioners’ breach, i.e. non-compliance with the 27 November 2002 direction, was irremedial. Nothing that the Commissioners have done since, for example by providing witness statements, saves them from the consequences of the three-day hiatus.  Nothing the Tribunal can do can save the Commissioners.  The only correct course, argued Mr McNicholas, was for the Tribunal to allow the appeal on grounds of non-compliance in exercise of its powers in rule 19(4).  

31.	That the Tribunal had no jurisdiction to waive the breach followed, argued Mr McNicholas, from the reasoning of the Court of Appeal in the decision in Kuwait Petroleum (GB) Ltd v Customs and Excise Commissioners [2001] STC 1568 at 1612-1613.  There, Chadwick LJ had observed, with regard to a point that had not been raised as a disputed matter contained in the decision appealed against to the tribunal (in paragraph 113):

“We were invited by both parties to deal with the matter as if an application had been made and granted.  We do not think it right to do so”.

In paragraph 114, the Lord Justice observed:

“… the point … was not properly before the tribunal … its decision on that issue must be regarded as having no legal effect … More to the point … the issue was never properly before the High Court; and cannot be before this court”.

32.	The Commissioners, through Kieran Beal, argue that the Tribunal can and should waive the breach (i.e. the three-day hiatus) in accordance with rule 19(5) of the Tribunal rules.  To do so, it was said, would be just, bearing in mind that a three-day delay can hardly have prejudiced Kingpin.  Moreover, it was observed for the Commissioners that no objection had been raised by Kingpin at the time.  The Commissioners referred to Bennett v Customs and Excise Commissioners (No 2) [2001] STC 137 where the Court (Patten  J) accepted that a breach of time-limits of service of a statement of case could be cured by a subsequent order of the tribunal granting an extension of time.  I refer to paragraphs 18 and 19 of the judgment.  In any event, it was argued, the Tribunal can now exercise its power in rule 19(5) and waive the three-day breach.

33.	I do not accept that the reasoning in Kuwait requires me to conclude that I have no jurisdiction to waive the breach.  In that case the Court of Appeal ruled that the tribunal, and therefore the onward appeal courts, had no jurisdiction over a point that had subsequently become contentious but had not formed part of the original decision appealed against. Jurisdiction could not be conferred by agreement or acquiescence of the parties, the tribunal or the appeal courts.  This followed from the fact that the tribunal’s jurisdiction was strictly statutory.  Here the position is quite different. It concerns a procedural step in an appeal where the tribunal has jurisdiction by virtue of VAT Act 1994 section 83(c).  Unlike the point in Kuwait there is a tribunal rule which in terms gives the tribunal the powers both to extend the time for compliance (with the prior direction to serve witness statement by 17 February 2003) and to waive the breach.  On the strength of Patten J’s approach in Bennett (2) I can conclude that the three-day breach was effectively waived.  An extension of time was, as already noted, applied for on 20 February.  The tribunal, being unaware of (or overlooking) that that application had been lodged, listed a direction hearing (on 17 March 2003) for non-compliance; but the tribunal subsequently (on 27 March) cancelled this, without objection or opposition from Kingpin.  The 20 February application for extension of time must, I think, be taken to have been granted and the three-day breach waived.  In this connection it is relevant to mention that, not only did Kingpin (through Matthews Consulting) seek to restore the directions hearing to deal with the issue, but it also indicated by its letter of 7 July 2003 that previous applications for extensions had been allowed “on an unopposed basis” (see paragraph 27).  

34.	Assuming I am wrong so far and that the three-day breach has not been waived, I now come to the question of whether I should allow the appeal by reason of the breach.  Mr McNicholas conceded that such a course could not be justified by reason of the three-day breach standing alone.  He says, however, that Kingpin have been seriously prejudiced by the Commissioners’ failure to serve witness statements from October 2002, when Dr Avery Jones made the original direction, until 1 April 2004.  

35.	Prejudice to Kingpin through the Commissioners’ continuing non-compliance has arisen essentially because the basis for the original decision has now gone; instead, the Commissioners’ refusal to repay input tax is based on their view that the invoices are not genuine and that (to use the words in the Commissioners’ letter of 9 January 2004) “the alleged transactions have … been artificially constructed to generate an entitlement in circumstances where no genuine onward business supply of any goods can be demonstrated to have taken place”.   In effect there has, said Mr McNicholas, been a new decision.  The original statement of case of 2000 makes no reference to the above allegation as “facts and matters” on which the decision was based.  The purpose of Dr Avery Jones’s direction had, it was said, been to extract witness statements from the Commissioners so as to fill the gaps in their case and disclose to Kingpin the case that it had to meet.  With every day that has passed those involved in the management of Kingpin will have lost their grasp of the events of late 1996.  It was inexcusable, Mr McNicholas argued, that Mr Tatum had not produced a witness statement as directed so as to disclose to Kingpin, much earlier, the grounds for the Commissioners’ refusal to make the VAT repayment.

36.	In response Kieran Beal pointed out that the gist of the Commissioners’ case had been set out in the Commissioners’ “Reply” served on 3 July 2002.  This acknowledged, among other things, that the 53 purchase invoices on which the input tax claim was based had been supplied by Kingpin.  The Reply states that Kingpin are put to strict prove that the invoices had been raised in respect of actual supplies of goods that had taken place.  It denies that the provision of any SAD forms would be relevant to the issue.  In paragraph 15 it puts Kingpin to prove to demonstrate genuine trading operations.  

37.	As I read the Reply it contained quite sufficient material to have put the management of Kingpin on notice, from July 2002, that they were going to have to prove every transaction covered by the invoices and prove the genuineness of the invoices themselves.  They were up against allegations of what could amount to fraud.  

38.	What more could the witness statements have said?  No doubt they could have given an update on the state of the investigations into what, if any, transactions have been carried out in 1996 and into the forensic examinations of the documents themselves.  I cannot see that the absence of this information will have prejudiced Kingpin’s chances of establishing their entitlement to repayment of input tax.  There has been nothing to stop them, from October 2002 until today, from putting together statements, dossiers and supporting evidence that proves that each and every disputed transaction and every related invoice were absolutely genuine.  There has been nothing to prevent Kingpin’s advisers from taking witness statements from the people involved in its management in the latter half of 1996.  Moreover there must have been a large amount of paper produced, records compiled and statements taken during the course of the unsuccessful criminal prosecution.

39.	Mr McNicholas asserts that the delay has been wholly due to the Commissioners.  I do not, however, accept that the case has stalled and Kingpin has been prejudiced because of the Commissioners’ refusal or failure to serve witness statements earlier. Nothing that I have heard indicates that Kingpin’s chances of success have been jeopardized one iota by the absence of witness statements before the end of March 2004.  The fact that Kingpin had been told formally something that it no doubt suspected in the light of earlier civil proceedings, namely that it is faced with the consequence of irregularities in the chain of transactions to which it has been a party, cannot conceivably be classed as prejudice to its position as a matter of law.

40.	Reverting to the position at the end of the three-day hiatus from 18-20 February 2003, it is significant that Kingpin still had further documentation to produce to the Commissioners. It will be recalled that on 3 April 2004 Matthews Consulting sent to the Commissioners (Mr Tatum) bank statements (including a document showing a payment to Draykirk), accounts for four years, reconciliations of payments and expenses with VAT returns and copies of purchase invoices, sales invoices and SAD forms.  There was no suggestion then, or from any of the other letters from Matthews Consulting, that they or their clients were being prejudiced by the Commissioners’ failure to produce witness statements.

41.	Coming back to the present, Kingpin now has the Commissioners’ amended Statement of Case (dated 23 January 2004) and witness statements from Messrs Baines and Callaghan.  They should now be in a position to proceed with the appeal.  There is no reason, in my view, why their preparations should not now be at an advanced stage.

42.	For all the reasons given above I dismiss Kingpin’s application that the appeal be allowed. The Commissioners stated that they are reserving their position as regards the costs of the application. The Commissioners are, therefore, at liberty to make submissions on costs when they have considered this Decision.

STEPHEN OLIVER QC
CHAIRMAN

RELEASED:16/7/2004

LON/01/712