“(8) Where on an appeal it is found (a) … (b) that the whole or part of any VAT credit due to the appellant has not been paid, so much of that amount as is found not to be due or not to have been paid shall be repaid (or, as the case may be, paid) with interest at such rate as the tribunal may determine …”
“(1) This section applies where the tribunal has determined an appeal under section 83 . (2) Where on the appeal the tribunal has determined that— (a) the whole or part of any disputed amount paid or deposited is not due, or (b) the whole or part of any VAT credit due to the appellant has not been paid, so much of that amount, or of that credit, as the tribunal determines not to be due or not to have been paid shall be paid or repaid with interest at the rate applicable undersection 197 of the Finance Act 1996 . … (5) Nothing in this section requires HMRC to pay interest (a) on any amount which falls to be increased by a supplement under section 79 (repayment supplement in respect of certain delayed payments or refunds); or (b) where an amount is increased under that section, on so much of the increased amount as represents the supplement.”
“(1) This paragraph applies if, before the commencement date [ie1 April 2009 ] (a) HMRC have notified a decision relating to a matter to whichsection 83 of the Value Added Tax Act 1994 applies, and (b) no party has served notice on a VAT and duties tribunal for the purpose of beginning proceedings before such a tribunal in relation to that decision. (2) On and after the commencement date, the following enactments continue to apply … as they applied immediately before that date (a) theValue Added Tax Act 1994 , (b) rule 4(2) of theVAT Tribunals Rules 1986 , and (c) any other enactments that are applicable to the decision.”
“… there are “current proceedings” if, before the commencement date (a) any party has served notice on an existing tribunal for the purpose of beginning proceedings before the existing tribunal, and (b) the existing tribunal has not concluded proceedings arising by virtue of that notice.”
“(1) This paragraph applies in relation to any decision of a VAT and duties tribunal made before the commencement date.
“(1) Without prejudice to section 15 , where an Act repeals an enactment, the repeal does not, unless the contrary intention appears, … (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment; … and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.”
“I do not think the modern law is that interest is awarded against the defendant as a punitive measure for having kept the plaintiff out of his money: I think the principle now recognised is that it is all part of the attempt to achieve restitutio in integrum. One looks, therefore, not at the profit which the defendant wrongfully made out of the money he withheld — this would indeed involve a scrutiny of the defendant's financial position — but at the cost to the plaintiff of being deprived of the money which he should have had. I feel satisfied that in commercial cases the interest is intended to reflect the rate at which the plaintiff would have had to borrow money to supply the place of that which was withheld. I am also satisfied that one should not look at any special position in which the plaintiff may have been; one should disregard, for instance, the fact that a particular plaintiff, because of his personal situation, could only borrow money at a very high rate or, on the other hand, was able to borrow at specially favourable rates. The correct thing to do is to take the rate at which plaintiffs in general could borrow money. This does not, however, to my mind, mean that you exclude entirely all attributes of the plaintiff other than that he is a plaintiff. There is evidence here that large public companies of the size and prestige of these plaintiffs could expect to borrow at 1 per cent. over the minimum lending rate, while for smaller and less prestigious concerns the rate might be as high as 3 per cent. over the minimum lending rate. I think it would always be right to look at the rate at which plaintiffs with the general attributes of the actual plaintiff in the case (though not, of course, with any special or peculiar attribute) could borrow money as a guide to the appropriate interest rate. If commercial rates are appropriate I would take 1 per cent. over the minimum lending rate as the proper figure for interest in this case.”
“The purpose of the award of interest is to achieve restitutio in integrum. The enquiry does not focus, in a case such as the present, on the profit to the defendant of the use of the money. It is directed to an estimation of the cost to the plaintiff of being deprived of the money which he should have had. But for practical reasons courts will not allow an enquiry into the plaintiff's actual loss. To do so might sometimes involve enquiries, in relation to the ancillary relief of interest, approximating the length of the trial. Instead, in cases such as the present, the courts award a commercial rate of interest or the rate which some-body in the position of the plaintiff would have had to pay to borrow the money. In the interests of a cost effective administration of civil justice, the courts must adopt a fairly broad brush approach to the award of interest. On the other hand, in the light of the over-riding criterion of fairness, the courts are vigilant to ensure that the broad brush approach does not become too blunt an instrument.”
“Bearing in mind that the selection of an appropriate rate of interest is a discretionary matter, it seems to me entirely consistent with the pragmatic approach of our courts to rule that in this particular case, my ruling as to interest rates should reflect that a prime bank, such as Chemical Bank, was at all times able to borrow significantly more cheaply than small banks. In doing so I am not enquiring into Chemical Bank's special position but I am simply recognising the reality that market leaders such as Chemical Bank have a well established advantage over other banks when they borrow money. It is, as Forbes J so lucidly explained, a question of categorisation of the plaintiff in an objective sense. And, I regard it as essential to a fair decision in this case to recognise Chemical Bank's dominant position when compared with that of the other plaintiff banks.” (2) It was argued that one of the small banks, Kusa, was in a weak position during the relevant period, and there was evidence that Kusa was perceived as having problems with the Swiss banking authorities. Steyn J stated: “… although Kusa was undoubtedly in a weak borrowing position, that is a matter peculiarly affecting Kusa which I must ignore. It follows that I am not prepared to distinguish between Kusa and the other smaller banks.”
“Although there may be some uncertainty to what extent the personal circumstances of the plaintiff may be relevant, the pragmatic approach of the Courts has certainly been reflected in the practice of the Commercial Court. The practice whereby interest is normally awarded at 1% over Base Rate amounts to a presumption which can be displaced if its application would be substantially unfair to either party. That rate represents something of a compromise (albeit weighted in favour of the plaintiff) between what a plaintiff kept out of his money might have earned on it and what he might have had to pay by way of interest... It does not preclude evidence as to the rate at which persons with the general attributes of the plaintiff could have borrowed money: see the test in Tate and Lyle Food and Distribution v Greater London Council[1982] 1 WLR 149 at 154–5. Thus I am satisfied that the general approach of the judge was correct. He started with the overriding principle that interest should be awarded to compensate the plaintiff for having been kept out of his money. He acknowledged that the plaintiff had not in fact borrowed in the amount or over the period at the rate to which the witness had deposed. He was correct, in my view, in holding that it was not essential to do so. The plaintiff adduced evidence of the rate at which a person with his general attributes (but ignoring his particular position) could have borrowed money over the period. The evidence of Mr Bettinson did constitute such evidence and was uncontradicted. In my view, the basic principle or practice in the Commercial Court should be to award interest at Base Rate plus 1%. The judge's decision in this case did not abrogate or undermine the basic principle. There was evidence upon which the judge could properly award interest at 2%. The uplift to 2% was not in any sense contrary to principle, immoderate or unreasonable in the circumstances. He neither erred in principle nor in the exercise of his discretion.”
“It is right that defendants who have kept small businessmen out of money to which a court ultimately judges them to have been entitled should pay a rate which properly reflects the real cost of borrowing incurred by such a class of businessmen. The law should be prepared to recognise, as I suspect evidence might well reveal, that the borrowing costs generally incurred by them are well removed from the conventional rate of 1% above base (and sometimes even less) available to first class borrowers.”
“111. The starting point is that section 84(8) gives the Tribunal a discretion, and contains no guidance as to how it is to be exercised or what factors are relevant in the exercise of the jurisdiction. 112. As will appear, I have detected some errors of principle in the Decisions under appeal, in relation to the award of compound interest and in relation to the award of a higher than conventional rate of interest in the ToTel Decision. 113. In my judgment it would be wrong for me to attempt to fetter the discretion by attempting to lay down guidelines as a gloss on the legislation. But I will say that it would not be easy to criticise a Tribunal if it applied principles commonly applied in cases involving commercial entities, even if the relationship between the trader and the Commissioners is not a commercial one. In civil cases, the overriding principle is that interest should be awarded to the claimant not as compensation for the damage done but for being kept out of money which ought to have been paid to him: London, Chatham and Dover Ry. Co. v. South Eastern Ry. Co.[1893] AC 429 at 437; Deeny v. Gooda Walker (No. 3) [1996] LRLR 168 . 114. Conventional practice in commercial cases (undersection 35A of the Supreme Court Act 1981 ) is to award simple interest at base rate plus 1% (described by the Law Commission, Pre-Judgment Interest on Debts and Damages, Law Com No 287, 2004, para 3.41, as “relatively low”). 115. I do not consider that there is any overriding reason of principle why a higher rate should not be adopted by the Tribunal in the circumstances of a particular case, either because that rate is reasonably considered too low, or because on the facts the taxpayer has had to borrow at a higher rate. The former case would no doubt be rare. In the latter case there must be some evidence on which the Tribunal can act. 116. In commercial cases, although a rate higher than the conventional rate may be justified, any such claim is normally dependent on evidence that a claimant has in fact borrowed funds at a higher rate: Shearson Lehman Hutton Inc v Maclaine Watson and Co Ltd (No 2)[1990] 3 All ER 723 ; Ahmed v Jaura[2002] EWCA Civ 210 at paras [12], [20]; R (Mobile Export 365 Ltd and another) v. Commissioners of Her Majesty's Revenue and Customs[2006] EWHC 311 (Admin) ,[2006] STC 1069 , at paras [35] to [38]. In Ahmed v Jaura[2002] EWCA Civ 210 at [26] (in which the rate which was applied was 3% above base rate) Rix LJ said: “It is right that defendants who have kept small businessmen out of money to which a court ultimately judges them to have been entitled should pay a rate which properly reflects the real cost of borrowing incurred by such a class of businessmen. The law should be prepared to recognise, as I suspect evidence might well reveal, that the borrowing costs generally incurred by them are well removed from the conventional rate of 1% above base (and sometimes even less) available to first class borrowers.” 117. The rate will normally reflect the cost of borrowing rather than the return on lending: Sempra Metals v Inland Revenue Commissioners[2004] EWHC 2387 (Ch) (Park J), at para. 30, approved by the Court of Appeal: Sempra Metals Ltd v Inland Revenue Commissioners[2005] EWCA Civ 389 ,[2006] QB 37 , at para 47.”
“16. A “broad brush” is taken to determine what rate of interest is just and appropriate: it would be neither practical nor proportionate (even in a case involving as large sums as these) to attempt a minute assessment of what will precisely compensate the recipient. In particular, the courts do not have regard to the rate at which a particular recipient of compensation might have borrowed funds. This policy is adopted in order to control the extent of the inquiry to ascertain an appropriate rate: see the Banque Keyser Ullman case (cit sup). The court will, however, consider the general characteristics of the recipient in order to decide whether to assess interest at a rate that is higher or lower than is conventional….”
“A “spread” or margin is normally added to LIBOR financing operations. A typical uplift for a long-term secured loan might be 1.25%. To give effect to the principle that arbitrators are to ascertain the cost of a short-term unsecured loan we recommend that members should award 2.5% over LIBOR as this would be a reasonable average rate to charge a reasonably creditworthy company for an unsecured loan. In special cases (depending on the credit worthiness depending on the plaintiff) a higher or lower uplift may be appropriate.” (3) He referred to an appropriate rate being determined by reference to what might be charged for a short-term and unsecured loan, and also considered that it is appropriate to take an uplift of 2.5% as a starting point because it involves little departure from the conventional US Prime Rate. (4) It was argued that an uplift of 2.5% would be excessive in view of evidence about what interest the claimants in fact paid on their borrowings. The defendants said it was appropriate to examine the personal circumstances of the claimants as: (a) the court had already received evidence during the trial about what interest Sovcomflot paid between 2002 and 2005 - Andrew Smith J acknowledged there was some evidence about this, but in itself this does not justify departing from the usual practice of disregarding the actual borrowing rates of the particular party. This case demonstrated that (i) such evidence is likely to be too fragmentary to provide a properly complete picture for determining the appropriate rate at which to award interest, and (ii) even if evidence has been heard, it can readily become protracted and time-consuming to examine it with a view to deciding an appropriate interest rate; and (b) the defendants identified general characteristics of the claimants that should be taken into account in determining the rate that “companies of their kind” would have to pay on their borrowings - they are shipping companies, members of a large group with substantial turnover and assets, Russian or subsidiaries of Russian companies, state-owned and likely to be supported by the state if in financial difficulties. In the circumstances of this case, there is no real distinction between what rates Sovcomflot and NSC paid upon their borrowings and the rates generally paid by businesses with these attributes: there is no reason to think that they shared them with any other companies or groups (apart, possibly, from Primorsk Shipping Company). Therefore, if he declined to consider evidence about what borrowing rates Sovcomflot and NSC pay and have paid for borrowings, the defendants effectively would be deprived of any evidence upon which they might argue for departing from the conventional rates. (5) The “overall purpose is to determine a fair rate to compensate the claimants” and he accepted that the defendants were entitled to rely upon evidence of the claimants’ borrowing rates. (6) The evidence was that one of the claimants was borrowing from banks at an uplift of around 1.125% over US$ LIBOR and that the uplift on most loans was reduced to 0.75% following a re-financing in 2005 (and this was supported by the expert witnesses on ship finance). The defendants also referred to the annual accounts, which had some evidence as to borrowing rates; the claimants also referred to those accounts. (The other claimant was borrowing at a margin a little more than this, thus evidence in relation to that claimant would not assist the defendants.) Having set out the various rates which were identified by both parties, Andrew Smith J continued: “30. In my judgment the evidence upon which the defendants rely does not support their contention that the claimants could have borrowed funds for as little as LIBOR plus 0.85% over the relevant period. First, the evidence largely relates only to the period between 2002 and 2005, and no evidence has been produced about what rates were paid in later years. In any case, such evidence as there was is too fragmentary even about the earlier years to support any conclusion about the rates that the claimants would have had to pay generally for borrowings. 31. However that might be, the defendants' contention faces a more fundamental difficulty. They rely generally (although not wholly) upon evidence about the rates for secured and medium term borrowings. They submit that it is appropriate and just to determine a rate for the interest to be awarded on the claimants' equitable compensation by reference to the rate charged for such borrowings because shipping companies such as Sovcomflot and NSC, being “asset rich”, are typically funded by medium-term secured borrowings. I am not persuaded by these submissions: there is no cogent evidence that Sovcomflot and NSC at the relevant times had assets available to secure borrowings, and indeed, that is why Sovcomflot raised funds in 2002 through the SLB transactions. In any case, the reason that the court generally considers how much the recipient of an interest award would pay for short-term unsecured borrowings in order to determine the rate of interest on awards is not that it is supposed companies such as the recipients would usually raise funds by way of short-term unsecured borrowing in the course of their business, but because it is generally a just and fair basis upon which to determine the interest rate. The purpose is to compensate them for being deprived of funds to which they were entitled. If they had not been so deprived, they would have received the funds without encumbering their assets and any equity in them would have remained available to provide security for further borrowings were they needed. I can see no justification for determining a fair rate of interest on the assumption that the claimants would have used their assets as security for borrowings…” (7) He concluded that: “32. I conclude from the evidence relied upon by the defendants that the interest paid by Sovcomflot and NSC was not less, or certainly not significantly less, than what the LMAA Report described “As a typical uplift [over LIBOR] for a long-term secured loan”
“46. It should be noted that the exercise envisaged by Otton LJ [in Baltic Sea ] and by Forbes J in Tate & Lyle , in order to consider whether to depart from what was perceived as the commercial norm, does not involve simply looking at the actual claimant. It involves looking at the class to which the claimant belongs and, if the circumstances require it, awarding that sort of generalised rate to the claimant in view of an assumed or standardised rate… 47. This approach has been adopted in a number of cases. However, in some of those cases, and despite the fact that the personal borrowing characteristics of the claimant are per se irrelevant, and that the rates at which the claimant actually borrowed are not per se relied on, it was nonetheless held that those rates can be used as evidence of what borrowers of that class would pay - a sort of self-generated comparable. This approach was apparently adopted in Fiona Trust v Privalov[2011] EWHC 664 (see the general approach described by Andrew Smith J at para 16, and his particular approach in that case at paras 24-5); and Bridge UK.Com Ltd v Abbey Pynford plc[2007] EWHC 728 at para 146…” (2) Mann J rejected the submission that cases in which the court departed from the presumed rate of 1% above Base Rate as being exceptional cases involving small businesses, stating: “50. There is no reason to treat that class differently from other classes that can be identified. It is therefore open to Sycamore to establish that it is a member of a class whose borrowing rates would be more than the conventional (presumed) rate and to argue that fairness requires that it should receive that rate.” (3) He then considered that one factor which is capable of making it fair to depart from the presumption is the effect on interest rates of the credit crunch, and added: “51. … It was, however, recognised in Persimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd[2012] EWHC 2429 (TCC) , where Ramsey J recognised that since the credit crunch (marked by the lowering of Bank of England base rate to 1% in February 2009 and 0.5% in March 2009) 1% above base rate was no longer a rate at which borrowing could be obtained. He awarded 1% over base rate until5th February 2009 and 2.5% overall (2% above base rate) for the period thereafter. He did not have any evidence of the rate that companies like Persimmon would have paid to borrow money (see paragraph 16 of his judgment) and doubtless that is why he applied 1% above base rate. It is, however, implicit in his remarks that had he had such evidence he might well have ordered a rate in accordance with what it showed if it had been greater than 1% over base rate.” (4) He set out the evidence before him at [52] as: “(i) In this case, Sycamore actually borrowed from Allied Irish Bank at 2.5% over LIBOR (not base rate) on£6m borrowing on a capital and interest repayment basis, and 3.5% above LIBOR for a£1m interest repayment only 6 year term. It was granted an overdraft at 2% over AIB's base rate. (ii) Other banks had made indicative offers at broadly similar rates. (iii) A publication on the private equity market, published by the ICEAW, shows the sort of borrowing rates payable in buy-outs for similar types of loan over the period 2004 to 2008. It shows rates comparable to those obtained by Sycamore were the sort of rates applicable to buy-out/private equity transactions at the end of 2007. (iv) In the relevant period LIBOR rates were higher than base rate. (v) A Bank of England publication, Trends in Lending, published in October 2012 shows that the Indicative median interest rates on new SME variable rate facilities were, in 2008 (there are no figures for 2007 in the report) something over 3% above base rate.” (5) Mann J considered the submissions of the parties and concluded: “56. In the circumstances I consider that enough has been done to displace the presumption. It has been demonstrated that persons of the class to which Sycamore belongs would have to borrow at rates greater than 1% above base rate and that that rate should be taken to be 3% above base rate for what I will call the first part of the period. Taking base rate rather than LIBOR works slightly in the defendants' favour, because for that period LIBOR was slightly greater than base rate. 57. However, that is only from the first period. In my view it would be appropriate to reflect the fact that interest rates were significantly reduced from February/March 2009, and at the same time to acknowledge that borrowing at 1% above base rate was, from that time, pretty well impossible. In doing so I follow the approach of Ramsey J in Persimmon Homes v Hall . If I differentiate for this period (which I do) Mr Smith says that I should award 2% above base rate, which he says yields a rate of 2.5% across the period. That is right if one takes the period from the date when base rate hit 0.5% in March, rather than February when it went down to 1%. Striking an appropriate balance, I find that it is appropriate to step the interest down from5th February 2009 and to allow interest at 2.5% from that date, rather than take 3.5% for the month between the February and March changes.”
“31. The Littlewoods decisions — that is, of the CJEU and the Supreme Court — make clear the primacy of national law in determining questions of interest. Provided the requirements of effectiveness and equivalence are observed, the former being characterised by the need for "reasonable redress", which is a flexible standard, it is national law and not EU law that governs.”
“35. I agree that the conventional practice in section 35A cases represents a good guide and structure to the manner in which the section 84(8) discretion should be exercised. In BritNed Development Ltd v ABB AB[2018] EWHC 2913 (Ch) at [17], I summarised the discretion under section 35A in the following propositions: (1) An award of interest is not punitive and the use to which the party paying interest would have put the funds (and the returns that such party may or may not have made) is irrelevant. (2) There is a convention that at least the starting point for the award of simple interest (at least where the award is in £ sterling) is Bank of England base rate plus 1%. (3) This conventional rate will, usually, be less than what a claimant would have to pay as a borrower, but more than a claimant could earn as a lender. The appropriate benchmark, however, is not to regard the claimant as the lender of monies (inferentially, to the defendant), but rather as having had to borrow money in order to fund the loss that has been vindicated by the award of damages in the judgment. It is this that informs the court's departure from the conventional starting point: the overall aim is to determine a fair rate to compensate the claimant. (4) When considering the departure from the conventional starting point, a broad brush approach must be taken. In Fiona Trust , Andrew Smith J put the point as follows: "A "broad brush" is taken to determine what rate of interest is just and appropriate: it would be neither practical nor proportionate (even in a case involving as large sums as these) to attempt a minute assessment of what will precisely compensate the recipient. In particular, the courts do not have regard to the rate at which a particular recipient of compensation might have borrowed funds. This policy is adopted in order to control the extent of the inquiry to ascertain an appropriate rate…The court will, however, consider the general characteristics of the recipient in order to decide whether to assess interest at a rate that is higher or lower than is conventional." (5) Specific evidence (eg as to the claimant's borrowing rates) may be adduced to support a particular departure from the conventional rate or as regards the particular circumstances of the claimant.”
“36. The FTT considered the question of the rate of simple interest that should be awarded in conjunction with the repayment supplement point. The reasoning in relation to these two (separate) issues is intertwined. Given the two distinct grounds of appeal, I have done my best to separate the FTT's reasoning, so as to distinguish between the reasoning going to Ground 1 and the reasoning going to Ground 2. So far as the rate of simple interest (Ground 1) is concerned: (1) The FTT began by noting what Lawrence Collins LJ said in RSPCA : Decision at [86]. I have set out the relevant passages in paragraph 34 above. At [88], the FTT noted that "[b]oth parties agreed that the conventional rate of base rate plus 1% was the starting point". That is clearly right. (2) The FTT considered that "it would not be correct to use the rates of borrowing of persons other than Global in determining the interest rate to be applied": Decision at [91]. Neither party took issue with this approach before me, and I respectfully agree that the fact that Global's claim was assigned to Emblaze cannot result in a higher rate of interest being paid by HMRC. It is trite law that an assignment cannot prejudice the position of the debtor. (3) The FTT then summarised the expert evidence on interest that was before it (Decision at [94] to [99]). Having done so, the FTT then stated its conclusions. It is appropriate to set these out in full (with emphasis supplied): …[[100] to [103] cited] … 37. I regard this reasoning as unimpeachable, and certainly well within the discretion conferred on the FTT by section 84(8). The FTT properly directed itself on the law — the RSPCA decision was and remains the leading case, in this regard — and properly considered whether the conventional rate of Bank of England base rate plus 1% should be departed from. The FTT considered that it should — to Emblaze's advantage — but preferred (for the reasons it gave) the commercial rate that Global borrowed from HSBC of Bank of England base plus 1.75% to the inter-company rate of LIBOR plus 2.55%. I can quite understand why the FTT did so. Furthermore, the FTT considered that — given the repayment on which interest was being awarded was greater than Global's actual borrowing, there was a particular risk of over-compensation in awarding a rate higher than the commercial rate.”
“Judge Porter asked why in view of the fact that Trading appears to have achieved a profit in excess of£11,000,000 over the earlier period, it had been necessary for the Companies to borrow any money. Mr Spurgeon replied: “I didn’t need to, no. It would have made more sense not to borrow the money, not to pay all the interest. But again, that is hindsight.””
“The evidence with regard to the loans is unsatisfactory. We fail to understand why the Companies needed to take the loans nor, indeed, why they would be prepared to pay such large sums by way of commission for the use of the money. We have not been provided with a copy of the debenture and it is peculiar that Mr Case appears to have been prepared to advance further sums to the Companies when he was aware of the litigation with DRT.”
“I note that the comments of Lightman J in Tradecorp and Collins LJ in RSPCA quoted above were made before the CJEU's rulings in Enel Maritsa and Rafinaria Steaua . It is clear from the CJEU's comments in Enel Maritsa and Rafinaria Steaua that a repayment of VAT may be withheld for a reasonable period in order to carry out a tax investigation. I consider that it is also clear from those cases that, where the investigation concludes that the repayment is due, interest must be calculated from the date on which the excess VAT would have had to be repaid in the normal course of events. Applying, as I must in a case such as this, the approach required by EU law, I consider that any interest should be calculated from the date on which the VAT would have been repaid to Global in the normal course of events. HMRC did not provide any evidence to contradict Mr Gilbey's view that, in the normal course of events, HMRC would have repaid the disputed VAT to Global on28 April 2006 . I conclude that interest is payable from28 April 2006 until21 July 2011 in respect of£6,911,434 and from28 April 2006 until9 May 2012 in respect of£1,533,217 .”
“136. Repayment supplement is a statutory penalty levied against the Commissioners for failing to deal with VAT Returns expeditiously, and as was pointed out in Olympia Technology Ltd , para 10, it does not produce an interest formula of the sort required for the application of section 84(8) . I do not consider that as a matter of principle the section 84(8) interest should be adjusted in order to take account of a section 79 repayment supplement. Again, it is section 84(8) which applies, and not section 79. 137. But that does not mean that there may not be circumstances in which the Tribunal can take account of, or have regard to, the fact that repayment supplement has been made. It would not normally be a reason for departing from a conventional rate if the Tribunal considered that a conventional rate was appropriate. But if on the basis of evidence the trader claimed that it was entitled to a rate higher than a conventional rate, it may be unrealistic and unjust not to have regard to the receipt of the repayment supplement. I therefore consider that the Tribunal may have regard to the fact that there has been a section 79 repayment supplement, especially where the trader claims on the basis of evidence that interest should be higher than a conventional rate.”