“works across all sectors of the seafood industry to promote good quality, sustainable seafood. Our research and projects are aimed at raising standards, improving efficiency and ensuring that our industry develops in a viable way. We are the UK’s only cross-industry seafood body working with fishermen, processors, wholesalers, seafood farmers, fish friers, caterers, retailers and the import/export trade. A Non Departmental Public Body (NDPB), we are sponsored by the four UK government fisheries departments and funded by a levy on seafood.”
“An Act to establish a Sea Fish Industry Authority with the duty of promoting the efficiency of the sea fish industry in the United Kingdom…”
“34 The court's approach to what is an abuse of process has to be considered today in the light of the changes brought about by the CPR Those changes include a requirement that a party to proceedings should behave reasonably both before and after they have commenced proceedings. Parties are now under an obligation to help the court further the overriding objectives which include ensuring that cases are dealt with expeditiously and fairly: CPR., rr. 1.1(2)(d) and 1.3. They should not allow the choice of procedure to achieve procedural advantages… … 39 The emphasis can therefore be said to have changed since O'Reilly v. Mackman [1983] 2 A.C. 237. What is likely to be important when proceedings are not brought … under Order 53, will not be whether the right procedure has been adopted but whether the protection provided by Order 53 has been flouted in circumstances which are inconsistent with the proceedings being able to be conducted justly in accordance with the general principles contained in Part 1. Those principles are now central to determining what is due process.”
“where a litigant asserts his entitlement to a subsisting right in private law, whether by way of a claim or defence, the circumstance that the existence and extent of the private right may incidentally involve the examination of a public law issue cannot prevent the litigant from seeking to establish his right by action commenced by writ or originating summons”
“the revenue has contended that the proper procedure was for Woolwich to seek to challenge its decision not to pay interest by way of judicial review, although it would of course contend that no order should be made on such a review in the present case. I do not accept this. If a claim lies for money had and received, judicial review adds nothing. If the money fails in law to be repaid, a direct order for its repayment is more appropriate than a declaration that it should repay it or an order setting aside a refusal to repay.”
“For the purpose of financing its activities the [SFIA] may impose a levy on persons engaged in the sea fish industry.”
“references to the landing of fish includes references to the collection for consumption of sea fish which have been bred, reared or cultivated in the course of fish farming whether in the sea or otherwise.”
“I think that in some cases the notion of words having a natural meaning is not a very helpful one. Because the meaning of words is so sensitive to syntax and context, the natural meaning of words in one sentence may be quite unnatural in another. Thus a statement that words have a particular natural meaning may mean no more than that in many contexts they will have that meaning. In other contexts their meaning will be different but no less natural.”
“references to the landing of fish include references to the collection for consumption of sea fish which have been bred, reared or cultivated in the course of fish farming whether in the sea or otherwise [and references to the landing of fish or fish products include references to bringing them through the tunnel system as defined in theChannel Tunnel Act 1987 ].”
“(a) in relation to white fish which has been landed outside the United Kingdom, but which is purchased by a person carrying on business on the white fish industry and is imported or brought into the United Kingdom for the purposes of any such business, the first sale thereof (whether in the United Kingdom or elsewhere) to such a person as aforesaid; (b) in relation to any other white fish, the first sale thereof (other than a sale by retail) after it has been landed in the United Kingdom”
“(a) in relation to any white fish or white fish product which has been landed outside the United Kingdom and to any white fish product manufactured outside the United Kingdom from such white fish or white fish product which in either case is purchased by a person carrying on business in the white fish industry and is imported or brought into the United Kingdom for the purposes of any such business, the first sale thereof (whether in the United Kingdom or elsewhere) to such a person as aforesaid; (b) in relation to any other white fish product which is landed in the United Kingdom, the first sale thereof (other than a sale by retail) whether prior to or after it has been landed in the United Kingdom”
“(1) The Authority shall have power for the purpose of financing the discharge of their functions,- (a) to impose a general levy on persons engaged in the white fish industry- (i) in respect of white fish landed in Great Britain, at a prescribed rate not exceeding 2 d. for each stone of white fish landed; and (ii) in respect of white fish products so landed, at a prescribed rate in respect of each stone of the products;” (a) to impose a general levy on persons engaged in the white fish industry- (i) in respect of white fish landed in Great Britain, at a prescribed rate not exceeding 2 d. for each stone of white fish landed; and (ii) in respect of white fish products so landed, at a prescribed rate in respect of each stone of the products;”
“References in subsections (1) and (6) above to persons engaged in the white fish industry shall be construed as including references to persons carrying on in Great Britain the business of buying the products of white fish by wholesale or of importing white fish or their products.”
“(a) in relation to any white fish or white fish product which has been landed outside the United Kingdom and any white fish product manufactured outside the United Kingdom from such white fish or white fish product which in either case is purchased by a person carrying on business in the white fish industry and is imported or brought into the United Kingdom for the purposes of any such business, the first sale thereof (whether in the United Kingdom or elsewhere) to such a person as aforesaid.”
“(3) Under the Barras principle, where an Act uses a form of words with a previous legal history, this may be relevant in interpretation. The question is always whether or not Parliament intended to use the term in the sense given by this earlier history. … Acts in pari materia The following are in pari materia … d) Other Acts which deal with the same subject matter on the same lines. Here it must be remembered that the Latin word par or paris means equal, and not merely similar. Such Acts are sometimes described as forming a code. This does not mean that the Acts are codifying Acts however. If the Acts are inpari materia it is assumed that uniformity of language and meaning was intended, attracting the same considerations as arise from the linguistic canon of construction that an Act is to be construed as a whole.”
“The use that courts may make of Explanatory Notes as an aid to construction was explained by Lord Steyn in R (Westminster City Council) v NASS[2002] UKHL 38 at [2]-[6];[2002] 1 WLR 2956 ; see also R (S) v Chief Constable of South Yorkshire Police[2004] UKHL 39 at [4],[2004] 1 WLR 2196 . As Lord Steyn says in the NASS case, Explanatory Notes accompany a Bill on introduction and are updated in the light of changes to the Bill made in the parliamentary process. They are prepared by the Government department responsible for the legislation. They do not form part of the Bill, are not endorsed by Parliament and cannot be amended by Parliament. They are intended to be neutral in political tone: they aim to explain the effect of the text and not to justify it. The text of an Act does not have to be ambiguous before a court may be permitted to take into account an Explanatory Note in order to understand the contextual scene in which the Act is set (NASS, para [5]). In so far as this material casts light on the objective setting or contextual scene of the statute, and the mischief to which it is aimed, it is always an admissible aid to construction. Lord Steyn, however, ended his exposition of the value of Explanatory Notes as an aid to construction by saying (at para [6]): “What is impermissible is to treat the wishes and desires of the Government about the scope of the statutory language as reflecting the will of Parliament. The aims of the Government in respect of the meaning of clauses as revealed in Explanatory Notes cannot be attributed to Parliament. The object is to see what is the intention expressed by the words enacted”
“The intention of Parliament was that the levy raising power provided for by the legislation would apply to importers of sea fish and sea fish products”
“… any pecuniary charge, however slight, which is imposed unilaterally on national or foreign goods by reason of the fact that they cross a national border, and which is not stricto sensu a customs duty, is a tax of equivalent effect within the meaning of Articles 9 and 12 of the Treaty, whatever the name by which it is known, even if the proceeds are not paid over to the State, even if it has no discriminatory or protective effects and even if the product so taxed does not compete with any similar product of national manufacture[…]” (4) Even if it is shown that a charge is imposed on goods by reason of the fact that they cross a frontier, it will escape classification as a CEE if it can be established that the charge is related to a system of internal dues applied systematically and in accordance with the same criteria to domestic products and imported or exported products alike under article 90 EC (former article 95), i.e., if it forms part of a system of internal taxation. Article 90 EC provides: “No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products. Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products.”
“In this connection, it follows from Article 95 et seq. that the concept of tax of equivalent effect does not include taxes imposed in the same way, within a State, on similar or comparable national products, or at least, in the absence of such products, taxes falling within the general system of taxation or aimed at compensating, within the limits laid down by the Treaty, such internal taxes.”
“[A charge] escapes that classification [as a CEE] if it relates to a general system of internal dues applied systematically and in accordance with the same criteria to domestic products and imported products alike, in which case it does not come within the scope of articles 9, 12, 13 and 16 but within that of article 95 of the Treaty”
“established a uniform taxation procedure covering systematically and according to objective criteria both transactions carried out within the territory of the member-States and import transactions. It should be pointed out in particular in that respect that the common system makes imports and supplies of like goods within the territory of a member-State subject to the same rate of tax. As a result the tax in question must be considered as an integral part of a general system of internal taxation for the purposes of Article 95 of the Treaty and its compatibility with Community law must be considered in the context of that article and not of that of Articles 12 et seq. of the Treaty.” (5) It is well established that article 25 EC and article 90 EC are mutually exclusive. The same charge cannot constitute both a CEE and an internal tax. The former is unlawful but the latter lawful to the extent that it does not discriminate in favour of domestic products: see, for example, Industria Gomma Articoli Vari (Igav) v. Ente Nazionale per la Cellulosa E per la Carta (C-94/74)[1976] 2 CMLR 37 , 53 at [6]; Nygård v. Svineafgiftsfonden (C-234/99)[2002] ECR I-3657 at [17]; De Danske Bilimportøorer v. Skatteministeriet, Told-og Skattestyrelsen (C-383/01)[2003] 2 CMLR 1265 , 1288 at [33]. (6) In order for a charge to form part of a system of internal taxation, it must be shown that: (a) The charge applies to both domestic and imported products. As the Court held in Gaston Schul at [19]: “The essential characteristic of a charge having an effect equivalent to a customs duty, and the one which distinguishes it from internal taxation, is therefore that it affects only imported products as such whereas internal taxation affects both imported products and domestic products”
“It is however appropriate to emphasise that in order to relate to a general system of internal dues, the charge to which an imported product is subject must impose the same duty on national products and identical imported products at the same marketing stage and that the chargeable event giving rise to the duty must also be identical in the case of both products.”
“firsthand sale” means— (a) in relation to any sea fish or sea fish product which has been first landed in the United Kingdom the first sale thereof (other than a sale by retail) whether prior to or after landing in the United Kingdom; (b) in relation to any sea fish or sea fish product which has been first landed outside the United Kingdom and any sea fish product manufactured outside the United Kingdom from such sea fish or sea fish product which in either case is purchased by a person carrying on business in the sea fish industry and is imported or brought into the United Kingdom for the purposes of any such business, the first sale thereof (whether in the United Kingdom or elsewhere) to such a person as aforesaid;”
“30. The judge noted the view, put forward by Andrew Burrows (The Law of Restitution (1993) pp.425–8) that there is a narrow and a wide version of the defence of change of position, and that the wide view is to be preferred. The narrow view treats the defence as “the same as estoppel minus the representation” (so that detrimental reliance is still a necessary ingredient). The wide view looks to a change of position, causally linked to the mistaken receipt, which makes it inequitable for the recipient to be required to make restitution. In many cases either test produces the same result, but the wide view extends protection to (for instance) an innocent recipient of a payment which is later stolen from him (see Goff & Jones, The Law of Restitution 5th ed (1998) p.822, also favouring the wide view). 31. In this court Mr Stephen Moriarty QC (appearing with Mr Richard Handyside for Scottish Equitable) did not argue against the correctness of the wide view, provided that the need for a sufficient causal link is clearly recognised. The fact that the recipient may have suffered some misfortune (such as a breakdown in his health, or the loss of his job) is not a defence unless the misfortune is causally linked (at least on a ‘but for’ test) with the mistaken receipt. In my view Mr Moriarty was right to make that concession. Taking a wide view of the scope of the defence facilitates “a more generous approach .. to the recognition of the right to restitution” (Lord Goff in Lipkin Gorman at p.581; and compare Lord Goff's observations in Kleinwort Benson v Lincoln City Council[1999] 2 AC 349 at p.385 A–F). … 33. I would readily accept that the defence is not limited (as it is, apparently, in Canada and some states of the United States: see David Securities Pty v Commonwealth Bank of Australia (1992) ALJR 768 , 780, noted in Goff & Jones at p.819) to specific identifiable items of expenditure. I would also accept that it may be right for the court not to apply too demanding a standard of proof when an honest defendant says that he has spent an overpayment by improving his lifestyle, but cannot produce any detailed accounting: see the observations of Jonathan Parker J in Philip Collins v Davis [2000] 3 AER 808 , 827, with which I respectfully agree.”
“343. I now turn to the factual elements of the defence. I remind myself that the mere fact that the recipient has spent the money is not enough, and that a causal connection must also be shown, on at least a “but for” basis, between the receipt and any expenditure or other change of position upon which the defendant wishes to rely. Scottish Equitable v Derby suggests, albeit in a very different factual context, that the defence is not limited to specific identifiable items of expenditure, and that it will often be inappropriate to apply too demanding a standard of proof where an honest defendant has spent the money but cannot account for it in detail. How, then, should the court approach the question in a case where the Revenue has received many millions of pounds of mistakenly paid tax over a period stretching back for more than 30 years? 344. To state the obvious, taxation is not imposed for its own sake, but in order to fund government expenditure. It is one of the two main ways in which public expenditure is funded, the other being public sector borrowing. One would expect government spending decisions, at a policy level, to be reached at least in part on the basis of the tax revenues which it has received in the past, and which it expects to receive in the future. Even if tax revenues are not spent immediately, common sense suggests that they will be used up over a fairly short period, and that it is probably safe to assume that tax receipts which predated the claims in the present case by more than six years, and therefore fell outside the scope of a Woolwich claim with its six year limitation period, will have been exhausted well before the commencement of the action. As a matter of causation, no precise link can be demonstrated between particular receipts and particular items of government expenditure, but common sense again suggests that planned government expenditure would not have taken place at the level which it did but for the availability of the tax receipts which were taken into account in fixing departmental budgets. If all concerned, both the government and the taxpayers, proceeded on the footing that the tax was validly levied, I ask myself what is wrong with the argument that it would now be inequitable to require the Revenue to make restitution for the tax which was paid by mistake, because the money in question has long ago been spent in the public interest, and everybody assumed in good faith that it had been validly levied? I confess that, once the question is stated in these terms, the answer to it seems to me to be obvious. It would in my judgment be inequitable to require repayment in such circumstances, always bearing in mind that the claimants have a perfectly good separate San Giorgio claim for repayment of the unlawfully levied tax itself, free from any change of position defence. 345. It may be objected to my analysis that the necessary causal link is not made out, because it would always have been open to the government to raise the necessary money in a different way (for example by borrowing, or by an increase in tax rates, or by a corresponding cut in expenditure elsewhere, or by a combination of those methods) if the mistakenly paid tax had not been available to it. However, although this argument has superficial attractions, it seems to me to miss the point. What matters is the existence of a causal link between the tax revenues which were in fact received and the expenditure which was actually made. The fact that the money could have been raised in a different way is, in my judgment, neither here nor there. 346. A related objection is that, once departmental spending policy has been fixed and budgeted for, the various items or heads of expenditure should be regarded as commitments which have to be honoured, and are thus analogous with debts which have to be paid off in one way or another, rather like the mortgage in Scottish Equitable v Derby . In my view the answer to this point is again the same. Departmental spending plans are themselves likely to be predicated in part on the receipt of identifiable tax revenues, and (if so) they cannot be treated as purely extraneous obligations which the government would anyway be under an obligation to fund. 347. I must also clear away one major misconception which, as it seems to me, has bedevilled much of the pleading and evidence on this issue. Most of the Revenue's pleaded case in support of its change of position defence is directed to establishing the proposition that it would now cost an enormous amount, and would severely disrupt public finances, if the Revenue had to pay the claimants' claims in full: see the particulars which I have quoted in paragraph 310 above. Similarly, much of the evidence of Mr Ramsden (to which I will come in the next section of this judgment), and most of his cross-examination by Mr Aaronson, was devoted to that aspect of the matter. But the relevant question is not what it would now cost the Revenue to meet a judgment, or how it could reasonably expect to do so. The relevant question is whether the Revenue has in the past changed its position, on the strength of the receipts paid under a mistake, in such a way that it would now be inequitable to require the Revenue to make restitution. That question is correctly pleaded in paragraph 31 of the Amended Defence, and is reflected in the simple and (to my mind) compelling point made in paragraph 32, namely that the sums in question formed part of the UK's tax revenue for the years in which they were paid, and have since been irretrievably spent, in some cases decades ago.”