JP Trans URK BV v The Director of Border Revenue [2026] UKFTT 230 (TC)

[2026] UKFTT 00230 (TC)Case No TC09774
FIRST-TIER TRIBUNAL
TAX CHAMBER
Hearing Heard on: 15 January 2026Date Judgment date: 23 January 2026
London, Taylor House
Appeal reference: TC/2023/16793
RESTORATION – seizure of vehicle involved in smuggling drugs – restoration – second review following earlier Tribunal appeal – second review provided late – whether time should be extended for submission – yes – whether second review decision refusing restoration was reasonable – yes – appeal dismissed
Before
TRIBUNAL JUDGE ANNE FAIRPOTRIBUNAL MEMBER SONIA GABLE
Between
JP TRANS URK BVAppellantTHE DIRECTOR OF BORDER REVENUERespondent for The Appellant did not appear and was not representedMr Newbold of counsel, instructed by the Director of Border Revenue for RespondentsDECISION

Introduction

[1]This is an appeal against a further review decision dated 23 October 2023 by the respondent (“Border Force”) refusing the restoration of a vehicle owned by the Appellant (JPT).[2]No-one attended the hearing on behalf of JPT. JPT’s solicitors had asked for a postponement a few days before the hearing because they were without instructions as they had been unable to contact JPT, but stated that they were aware that JPT’s director intended to attend the hearing. The application was refused. The solicitors then emailed the Tribunal the afternoon before the hearing to advise that they had been in indirect contact with JPT’s director and had been informed that he would not be attending. They also advised the Tribunal that they were no longer representing JPT. Border Force contended that the hearing should go ahead as there was no indication that anyone would attend a future hearing on behalf of JPT.[3]Rule 33 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (the Tribunal Rules) allows the Tribunal to proceed with a hearing in the absence of a party if the Tribunal(1) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and(2) considers that it is in the interests of justice to proceed with the hearing.[4]Considering whether it would be in the interests of justice to proceed with the hearing, we took into account Rule 2(2) of the Tribunal which state that:
“Dealing with a case fairly and justly includes– (a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties; (b) avoiding unnecessary formality and seeking flexibility in the proceedings; (c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings; (d) using any special expertise of the Tribunal effectively; and (e) avoiding delay, so far as compatible with proper consideration of the issues.”
[5]In this context, we noted that this is a second appeal against a review decision in this matter, the first appeal having ordered a further review by Border Force. JPT’s director was aware of the hearing but had not attended despite having previously expressed an intention to attend and, for reasons which were not disclosed, had not provided his solicitors with instructions. Adjournment of this appeal would have an adverse effect on Border Force’s resources having expended some time preparing for and attending this hearing; the review officer’s health also meant that it would be likely that another officer would have to adopt his evidence if the hearing were adjourned. Adjournment of this appeal would also have an adverse effect on the resources of the Tribunal, including that we had prepared for and were ready to hear this appeal in the time allocated for it. We also noted that the burden of proof in this appeal is on Border Force to show that the further review decision, refusing restoration, was reasonable and we had a skeleton argument from JPT’s solicitors.[6]In the circumstances, we concluded that it was not in the interests of justice to adjourn the hearing. Adjournment would cause further delay in a matter which relates to a seizure that took place over five years ago. We had a bundle of papers and the previous Tribunal decision in this matter, together with submissions from JPT. JPT’s attention is drawn to Rule 38 of the Rules in the event that there was good cause for the non-attendance at this hearing.

Decision under appeal

[7]The vehicle for which restoration is sought was stopped by Border Force at Coquelles, France, on 29 July 2020. It was being driven by Mr Jelle Post (JP), a director of the appellant. On being searched, the vehicle was found to contain a substantial quantity of drugs amongst the cargo of cut flowers: 250kg of cocaine and 169kg of amphetamines, with an estimated street value of £13 million.[8]The vehicle was seized in accordance with Customs and Excise Management Act 1979 (CEMA 1979) provisions, including s139 and s141 CEMA 1979, on the basis that it had been used to carry goods which were subject to forfeiture. The seizure was not challenged and so it was deemed to be condemned as forfeit under para 5, Schedule 3, CEMA 1979.[9]JPT applied for restoration of the vehicle on 11 August 2020; Border Force refused restoration on 6 September 2020. JPT applied for a review of that decision on 13 October 2020; the review conclusion (dated 19 November 2020) was that the vehicle should not be restored.[10]That review conclusion was appealed to this Tribunal; on 5 July 2023, the Tribunal (a different panel to that involved in this hearing) allowed the appeal. The reasoning for that was that the subsequent acquittal of JP of criminal involvement in the smuggling attempt had not been taken into account; the review officer was not criticised for this, as the acquittal had been in April 2021, after the review decision was issued. However, it had since become a significant part of the factual context to be taken into account.[11]The Tribunal directed that a further review should be conducted, allowing JPT the opportunity to make further written representations to Border Force within 28 days of the date of the Tribunal decision. The review was to be made within 56 days of receipt of those further written representations; if no representations were made, the review was to be made within 56 days of the Tribunal decision.[12]JPT did not make written representations in respect of the further review and so the due date for the further review was 30 August 2023; the further review was in fact completed on 23 October 2023. The further review concluded that the vehicle should not be restored.[13]JPT appealed that decision; their sole ground of appeal was that the review decision was made late. Following directions issued by the Tribunal, JPT amended their grounds of appeal on 30 October 2023 and 15 June 2004, as set out below.[14]We were provided with a bundle of documents which included a witness statement made by JP for the first Tribunal appeal dated 20 October 2021. No updated witness statement was provided by JP and no further representations were made by JPT, despite them being invited to do so by the decision in the first Tribunal appeal.[15]There was a more recent witness statement, dated 15 January 2025, provided by JPT’s solicitor. The contents of this document were more akin to submissions than evidence and principally put forward the contention that the second review officer may have known that the vehicle had been sold at auction and that a successful claim for restoration by JPT would result in a compensation claim for the loss of the vehicle. The solicitor contended that this may have been in the mind of the second review officer when he made his decision and that, if so, the review may not have been truly independent. This appeared to be an attempt to expand upon the ground of appeal that the second review took into account matters which were not relevant. We deal with this below.

Background

[16]The Tribunal decision in respect of the first appeal ([2023] UKFTT 612 (TC)) sets out the background to the seizure, which we have taken into account and summarise here as follows:[17]The vehicle was seized as JPT were transporting goods for a business called Greenorganic Flowers BV (“Greenorganic”) from Heemskerk to Benfleet, Essex. JPT had carried three loads for Greenorganic prior to the load which was seized, on 6, 8 and 20 July 2020. On each occasion the transport orders were for the goods to be collected from a flower export centre in Rijnsburg for delivery to the “London region”. Each time, JPT were advised on the day of collection that the goods should be collected in Heemskerk and transported to Benfleet. There was no evidence provided as to the circumstances in which JPT first started to do business with Greenorganic.[18]On 23 July 2020 JPT received an email from Greenorganic, headed “Transport order”. This requested JPT to transport 43 Danish carts of flowers in a refrigerated trailer. The load was to be collected at 6pm on 29 July 2020 from an address in Rijnsburg and shipped to “London region” where it was to be unloaded at 7am. The email stated: Customers and exact route in consultation with the driver on the day of departure.[19]The address given for Greenorganic in Rijnsburg was a large flower export centre called Flora Holland, which contained offices of many flower wholesalers. On the day of collection that he should collect the goods from an address in Heemskerk rather than Rijnsburg.[20]On the first trip for Greenorganic on 6 July 2020 JP was given a piece of paper with the delivery address in Benfleet. He threw the paper away at some stage. When he loaded the flower trolleys on 29 July 2020, he was given another piece of paper with the Benfleet delivery address written on it. JPT did not check with any of the consignees identified on the CMRs to confirm whether they were expecting the flowers.[21]JP had been given five CMRs (road consignment notes) when he collected the flowers. The CMRs stated the consignor to be Greenorganic with an address in Rijnsburg. The CMRs indicated that the flowers were being delivered to five different addresses in the UK. They were all garden centres or wholesale florists in South East England. The CMRs identified the place at which the goods were loaded as Rijnsburg, whereas in fact the goods were collected from Heemskerk. Border Force later established that none of the businesses at the delivery addresses were expecting the deliveries and none had ordered the flowers.

Consideration of the grounds of appeal and the reasonableness of the second review decision

[22]The grounds of appeal and skeleton argument for JPT were short and contained little or no detail to support the grounds set out. We have nevertheless reviewed the material available to us to consider the reasonableness of the second review decision.

The further review was undertaken late

[23]The Tribunal decision in the first appeal ordered that a further review should be conducted within 56 days of the date on which JPT made further written representations or, if no written representations were made, within 56 days of the date of release of the decision. JPT made no further written representations and so the deadline for provision of the review was 30 August 2023; the review was provided on 23 October 2023. The directions did not include any provisions for the consequences of failure to comply.[24]JPT contended that the review decision should therefore be set aside. As noted above, their appeal was initially based only on this ground of appeal and the further grounds of appeal were added some eight months later.[25]Border Force contended that although the further review was conducted outside the timeframe provided for by this Tribunal it remained effective and must be considered on its merits. Where an initial review is out of time, s15(2) FA 1994 provides that the decision under review is deemed to have been confirmed; that cannot apply to a further review as the original decision has been set aside by the Tribunal. However, the Tribunal Rules state irregularities resulting from a failure to comply with directions cannot render proceedings void and the Tribunal Rules permit the Tribunal to take such action as it considers just where a party has failed to comply with a direction (Rule 7), including extending time limits for directions. The reason for the delay was an administrative oversight whilst a decision was being taken on whether to appeal against the Tribunal decision and also whilst a costs application was being defended. Border Force contended that, if the Tribunal were to set aside the decision as contended for by the appellant, it would also have to direct that a further review take place. The factual basis for such a third review would be unlikely to differ from that provided on 23 October 2023. Accordingly, they contended that to allow the review to be provided out of time and be considered on its merits would avoid further delay and the incurring of unnecessary costs by the parties. Border Force had applied for a variation of the directions in the Tribunal decision accordingly on 22 February 2024; that application was not granted but the judge noted that the application could be renewed at the hearing and it was so renewed. The appellant’s skeleton argument anticipated such renewal, contending (as above) that the review decision should be set aside.[26]In the alternative Border Force contended that the lateness of the further review made no difference to the decision taken which would inevitably have been the same.

Discussion

[27]We do not consider that the lateness in undertaking the review means that the review decision must be regarded as unreasonable within the context of s16(4) FA 1994: the delay is obviously not desirable but the delay alone is not such that the ”person making that decision could not reasonably have arrived at it”, as required by the statutory provisions.[28]Having considered the arguments before us, and noting the decision in Kett [2003] UKVAT(Excise) E00386 which concluded that the VAT and Duties Tribunal had the power to extend time for compliance with such a direction, even after expiry of the deadline for compliance, we conclude that this Tribunal has the power to extend the time limit for compliance with the direction to carry out a further review that was set out in the previous Tribunal decision. S16(4) FA 1994 contains supervisory powers in respect of an appeal against a restoration refusal: whilst that section limits the jurisdiction of the Tribunal in such appeals, it does not limit the powers of the Tribunal to extend time limits for compliance with directions.[29]JPT’s contention that the review should be set aside appears to anticipate that we would in fact extend time for compliance. If we were not to extend time, there would be no further review decision which could be appealed in order for a decision to be reached that it should be set aside (or, in the terms of the legislation, cease to have effect). The previous Tribunal decision did not direct that the original refusal to restore should cease to have effect but, instead, required a further review of that original decision to refuse restoration. If we do not extend time for compliance with the direction, we consider that JPT would be left with no further right of appeal in respect of that original refusal. We do not consider that this would be in the interests of justice and, noting that JPT has not suggested that they were prejudiced by the delay of slightly less than two months, we consider that it is appropriate to grant the extension of time requested by Border Force in their application.[30]Having concluded that, we turn to considering the parties’ substantive arguments regarding the appeal against the further review decision.[31]We remind ourselves that our jurisdiction remains supervisory: s16(4) FA 1994 makes it clear that our jurisdiction is limited to considering whether the decision of the review officer who undertook the second review was reasonable. The concept of unreasonableness in this context includes whether the second review considered irrelevant factors, failed to consider all relevant factors or is otherwise in all the circumstances unreasonable (see for example, Szczepaniak [2019] UKUT 295 (TCC)).[32]JPT contended that the second review officer had taken into account material which ought not to have been taken into account. In particular, he had failed to identify the nature and extent of “open-source checks” and “further enquiries” which had been made. It was contended that this made it very difficult for JPT to understand the basis upon which an adverse decision had been made and to respond to the material obtained from those checks and enquiries. It was also contended that the second review officer had made no allowance for the resources available to Border Force as against those of an SME haulier which had no expertise in investigation and did not have the time or resources available to Border Force.[33]The second review officer’s evidence was that the “open source checks” and “further enquires” were basic internet checks using publicly available information which can be undertaken by anyone, including JPT. The checks involved reviewing various addresses provided by JPT by checking them on Google Maps and using public internet resources to research the companies at those addresses to establish how long they had been there. The second review officer had also carried out public internet searches on the consignor.[34]Border Force contended that the nature and extent of these checks were clear from the second review decision, and that the material obtained from those checks was set out in that decision. The checks were based on publicly available information and were the sort of checks which a transport haulier could reasonably have been expected to have carried out. It was clear from case law, such as Szymanski t/a Everpol [2019] UKUT 343 (TCC), that a haulier such as JPT was expected to take steps to ensure the legitimacy of the transport request and it was contended that it was not unreasonable of the second review officer to take into account the information arising from these checks.

Discussion

[35]We will deal first with the contention in the solicitor’s “witness statement” that the second review officer may have been influenced by the knowledge that the vehicle had been sold and that Border Force would have to pay compensation if JPT were successful. No details were provided as to when the vehicle had been sold, nor was there any detail given as to why the second review officer may have known about the sale. The second review officer’s evidence was that he was not aware at the time of the review that the vehicle had been sold, and that he only recently learned that this was the case.[36]We accept the second review officer’s evidence on this point and find that he did not take into account any potential financial consequences of the second review for Border Force when undertaking the second review.[37]Turning to the other contentions in respect of this ground of appeal and having reviewed the second review decision, we consider that it is clear from the second review decision what checks had been carried out and what the results of those checks were:(1) a check on Greenorganics: this established that Greenorganic Flowers BV was registered at a virtual office (Romi Business Centre, Transmolenlaan 12, 3447 G2 Woerden, Netherlands) and did not have a presence at the address on the CMRs, which was a large flower export centre;(2) address checks: (a) the address given by JP as the place from which he was told on the day of collection as being the location to collect goods (stated in his defence statement to Canterbury Crown Court as being 28 Lijnbaan, Heemskerk, Netherlands) was not an address for Greenorganic Flowers BV. It was a retail store and not the warehouse described by JP who had been the driver for the relevant shipment. The other address given by JP when interviewed by Border Force (24 Lijnbaan, Heemskerk) was a warehouse which had belonged to another company for many years; (b) the transport order had no delivery address other than “London region”, and the delivery address for the shipment in Benfleet given to JP when he collected the goods was that of a Sainsbury’s supermarket; (c) JP had stated that he had delivered a previous consignment from Greenorganics to the Benfleet address but checks with the NCA had established that that previous consignment had been delivered to an industrial estate and the discrepancy had not been explained. A check with the NCA is not one which is publicly accessible, but the check undertaken was set out in the second review decision and this was a check carried out on something that was entirely within JPT’s knowledge (the delivery address of a previous consignment which JPT had transported).[38]We note that the second review also took into account other factors which were not reliant on open-source or other checks, such as the fact that the CMRs for this consignment all had the same CMR number as those provided by JPT in respect of two of the previous shipments for Greenorganic. CMR numbers are unique and the second review officer concluded that it was odd that three separate shipments all had the same handwritten number where the CMR was to be entered. There was no contention in this ground of appeal that these other factors were not relevant material.[39]The second review officer concluded that the discrepancies identified indicated that no reasonable checks had been carried out to establish why the locations for collection and delivery of the goods did not match the information given on the CMRs.[40]JPT contended that the results of the checks were material which should not have been taken into account because JPT could not have been expected to make those checks and, as the results were taken into account, the decision is therefore not reasonable. JPT’s contention is, in effect, that Border Force should not have carried out checks on the consignor and delivery arrangements because these were not checks which it would have been reasonable for JPT to make. The clear implication of JPT’s contention is that it did not carry out such checks. The Tribunal during the first appeal did not make any findings of fact as to any checks being carried out by JPT.[41]We agree with the statement of the Upper Tribunal in Szymanski at [54] that “It is readily apparent that, in the different policy context of seeking to prevent smuggling, Border Force would not be unreasonable if they expected checks to be made beyond those set out in a Convention whose purpose was wholly different (the international standardisation of contractual conditions)”.[42]We also agree with the Upper Tribunal in that case (at [59]) that “The question of what will constitute adequate checks for the purpose of establishing whether an operator acted reasonably will depend on the particular facts relating to the operator and the circumstances surrounding the seized load … that might include verifying not just the personal ID but the nature of the consignor’s business, or making checks in relation to the supplier [including checks which] a haulier might reasonably have been expected to carry out without specific advance notice”.[43]We note also that the Tribunal in the decision in respect of the first appeal noted that the further review would need to consider what checks could reasonably have been made by JPT.[44]The second review officer concluded that the changes in collection and delivery locations, at very short notice and with the delivery address being provided on a scrap of paper, were circumstances which would have alerted a reasonable haulier to make further checks, as required by the CMR Regulations, such as making enquiries of Greenorganics as to why the collection address had changed from a flower export centre to a location in a different city and why the deliveries were to be made to a supermarket rather than to the consignees listed.[45]The second review officer concluded that the Upper Tribunal conclusion in Szymanski was wholly applicable to the circumstances, specifically that:
“Given the inadequacy of the checks (taking into account, in particular, that this was a new customer who was not a well-known organisation) and … that the account given of the delivery arrangements was confused and incomplete, we can see no error of law in the FTT's conclusion that it was inevitable that Border Force would have decided that Mr Szymanski was ‘complicit’ ([that is, had failed to make enquiries to check credibility in circumstances that ought reasonably to have given rise to a suspicion of smuggling]). Nor do we consider that a decision, so reached, was unreasonable”
. We consider that it is clear that the second review officer was not blindly following the Szymanski decision but was, instead, noting that it supported the conclusion he had reached from the facts which he had established and set out with regard to JPT.[46]On balance, we do not consider that the second review officer took into account material which ought not have been taken into account. The information taken into account was either publicly available via an internet search or within JPT’s knowledge. Case law (such as Szymanski) has made it clear that small hauliers are still expected to undertake checks where the circumstances of a shipment would reasonably give rise to suspicions; we do not consider that it was unreasonable of the second review officer to conclude that JPT should have undertaken basic checks on addresses that it was given or that it should have undertaken basic checks on the credibility of the information provided by Greenorganic.

The officer had failed to consider material which should have been taken into account

[47]The grounds of appeal contended that the second reviewing officer had failed to consider the findings of fact made by the Tribunal in their decision in the first appeal. This ground of appeal was not addressed in the skeleton argument provided to the Tribunal. In their grounds of appeal JPT did not set out which findings of fact they contended had not been considered. Discussion[48]We have reviewed the decision from the first appeal. The key finding of fact referred to which the Tribunal concluded had not been (and could not have been) taken into account was that JP had subsequently been acquitted in the related criminal proceedings. This was clearly taken into account by the second reviewing officer. His conclusion that the acquittal did not automatically mean that the vehicle should be restored was not unreasonable, and we note that it followed case law in that respect. Similarly the second review officer’s consideration of the facts in the exercise of his discretion on the basis of the balance of probabilities was also reasonable, being the approach required by law.[49]The other findings of fact, such as the fact that JPT had worked for Greenorganic on three previous occasions, were also taken into account in the second review decision.[50]As noted above, JPT did not identify any material which they considered the second review officer had failed to take into account; having reviewed the bundle, the previous decision and the second review letter, we have been unable to identify any such material. We find that the second review officer did not fail to consider material which should have been taken into account.

The officer had failed to properly exercise his discretion

[51]The appellant contended that the reviewing officer had made no reference to the discretion available to him, and did not purport to consider the exercise of any such discretion. As such, it was contended that he had made a substantive error and the decision was flawed.[52]Border Force contended that it was clear from the second review letter, particularly the section headed “Consideration”, that the second review officer had exercised his discretion. The evidence of the second review officer was that he had exercised his discretion in coming to the decision and had not simply implemented policy without consideration of that discretion.

Discussion

[53]The second review letter refers to the need for policy to be applied firmly but not rigidly, to allow for an exercise of discretion and that the officer was not fettered by Border Force policy and had considered the case on its individual merits. He had considered the circumstances of the case to decide whether any mitigating or exceptional circumstances existed that should be taken into account. The officer concluded that he could find no reason to vary the Border Force policy not to restore.[54]Given the contents of the letter and the clear approach set out within that letter, we find that the second review officer exercised the discretion available to him and that he properly exercised that discretion.

Conclusion

[55]We have concluded that the second review decision did not take into account irrelevant factors and did not fail to take into account all relevant factors, and that the second review officer properly exercised the discretion which was available to him. Considering the decision overall, we consider that the refusal to restore was reasonable.[56]The appeal is therefore dismissed.

Right to apply for permission to appeal

[57]This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice. Release date: 23rd January 2026