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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> O' Connor Utilities Ltd v HMRC [2009] EWHC 3704 (Admin) (28 October 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/3704.html Cite as: [2010] STC 682, [2009] EWHC 3704 (Admin), [2010] STI 624

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Sitting at: Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX
		28th October 2009

Mr Justice Blake:

1. On 4 November 2008, the claimants in these proceedings were served with a seizure information notice about a tractor, that had been seized by the defendant in the exercise of its powers under the Customs and Excise Management Act 1979. On 4 December 2008, the claimant issued a notice of claim by way of appeal against the earlier notice. The defendant disputed that that appeal had been served in time. After prompt exchange of correspondence and notice of the claim, these proceedings were brought promptly in the early part of 2009, and permission was in due course granted by this court.
2. This appeal raises a short but important point of statutory construction. Schedule 3 to the Customs and Excise Management Act 1979, under the heading "Notices of Claim", paragraph 3, says as follows:

"Any person claiming that any thing seized as liable to forfeiture is not so liable shall, within one month of the date of the notice of seizure or, where no such notice has been served on him, within one month of the date of the seizure, give notice of his claim in writing to the Commissioners at any office of customs and excise."

The point may be summarised as follows: was the notice of claim served during 4 December 2008 a notice given within one month of the date of the notice of the seizure?

3. The authority at the highest level that addresses the question of how to time is the case of Dodds v Walker [1981] 2 All ER 609, a decision of the Appellate Committee of the House of Lords. The dispute in that case concerned a notice under Part II of the Landlord and Tenant Act 1954. Lord Diplock said this at page 6 :

"My Lords, reference to a 'month' in a statute is to be understood as a calendar month. The Interpretation Act 1889 says so. It is also clear under a rule that has been consistently applied by the courts since Lester v Garland (1808) 15 Ves. Jun. 248, that in calculating the period that has elapsed after the occurrence of the specified event such as the giving of a notice, the day on which the event occurs is excluded from the reckoning. It is equally well established, and is not disputed by counsel for the tenant, that when the relevant period is a month or specified number of months after the giving of a notice, the general rule is that the period ends upon the corresponding date in the appropriate subsequent month, i.e. the day of that month that bears the same number as the day of the earlier month on which the notice was given.

The corresponding date rule is simple. It is easy of application. Except in a small minority of cases, of which the instant case is not an example, all that the calculator has to do is to mark in his diary the corresponding date in the appropriate subsequent month. Because the number of days in five months of the year is less than in the seven others the inevitable consequence of the corresponding date rule is that one month's notice given in a 30 day month is one day shorter than one month's notice given in a 31 day month and is three days shorter if it is given in February. Corresponding variations in the length of notice reckoned in days occur where the required notice is a plurality of months.

This simple general rule which Cockburn C.J. in Freeman v. Read (1863) 4 B. & S. 174, 184 described as being 'in accordance with common usage ... and with the sense of mankind,' works perfectly well without need for any modification so long as there is in the month in which the notice expires a day which bears the same number as the day of the month on which the notice was given."

4. In the present case, the same Interpretation Act directs that a month is a calendar month. The same principle applies that one discounts the day in which the event occurs which sets the timescale for the calendar month. This is a statute where Parliament has identified the relevant time as being a month or a calendar month. Therefore, for reasons spelt out by Lord Diplock, the starting point or the presumption is that the corresponding day rule applies in order to have clarity as to the end time for service of a notice. Applying the corresponding date rule to the facts briefly summarised in this case, this notice was on time.
5. There are a number of cases dealing with different statutes, different words, different periods of time and different considerations where the corresponding day rule has been displaced. By way of example, there is the decision in Okolo v Secretary of state for the Environment and others [1997] 4 All ER 242, where a person aggrieved by a compulsory purchase order might, under section 23(4) of the Acquisition of Land Act 1981, apply to the High Court. The statute required that an application shall be made within six weeks in the case of a compulsory purchase order, from the date on which the notice of the confirmation of the order is first published. It was common ground that one should start counting not from the day of the confirmation of the order, but rather on the following day. What was in dispute was when the six weeks came to an end. Schiemann LJ concluded that the corresponding date rule applicable in statutes identifying the relevant period as a month is not to be imported into cases where a much more certain concept of six weeks is used.
6. In my judgment, it is not necessary to go beyond the terms of the statute in this case and the basic rule of construction identified by Lord Diplock. If Parliament uses a different period for computation of time, it may well be that different conclusions are reached as to whether there is such a thing at all as the corresponding date rule for a period of 15 days or six weeks. That is not the issue in the present case. In my judgment, the language of Schedule 3, paragraph 3, does not suggest that a variation from the basic rule is called for. The basic rule pragmatically and sensibly grapples with problems where concepts such as calendar month are used, and where there is a corresponding date, as there was in this case, the basic rule applies.
7. The matter is now not contested, the defendant has helpfully served a note to the effect that they accept that the date of the service of the notice is excluded and that the corresponding date rule should apply, so this notice was in time. In my judgment that concession is properly made, and I base this judgment not on the concession but upon my construction of the statute, in the light of the guidance given by Lord Diplock and the absence of any countervailing indication in the context of the statute that would drive a different conclusion.
8. For those reasons, I will grant the claimant the relief that will clarify this issue, namely a declaration that the notice of claim served on 4 December 2008 was within time, having regard to the language of Schedule 3 and the principles of construction set out in this judgment.

Order: Application granted.

Mr Puzey: My Lord, there is the matter of costs.

Mr Justice Blake: I shall deal with that, but apart from that, counsel will be able to draft a declaration to give effect to the judgment?

Mr Puzey: Indeed.

Mr Justice Blake: Lodge it with me please. Thank you very much. And you apply for your costs.

Mr Puzey: I do, yes.

Mr Spencer: No observations on costs, save to say that given that the appellant, I understand, sorry given the claimant, I understand, is VAT registered -- he would not be entitled to VAT on his costs as claimed in his schedule.

Mr Puzey: That point is not taken. It is accepted. Therefore a reduced sum is sought.

Mr Justice Blake: I haven't got your costs schedule. First of all, I will award costs. Secondly, do you want a summary assessment?

Mr Puzey: I do, yes.

Mr Justice Blake: And who better to tell the court about VAT?

Mr Spencer: If I couldn't get that right, I shouldn't be here!

Mr Justice Blake: Yes. Do you have any other observations about the sum total of the costs?

Mr Spencer: No, my Lord. Obviously, the majority of these costs were incurred at a time when the claimant was not aware of the defendant's position.

Mr Justice Blake: Right. So if one removes VAT, the figure or is --

Mr Puzey: I have the figure at £5,532.70.

Mr Justice Blake: £5,532.70, and that is --

Mr Puzey: That is £797.94 and £3,760, totalling £835 off the total --

Mr Justice Blake: Yes, in the light of the circumstances of this case, where the point was extremely promptly put, the matter has not been contested, though because of the importance of the point, it has been necessary for the matter to proceed to the judgment which I have given. I will award the claimant costs, the defendant to pay the claimant's costs summarily assessed in the sum of £5,532.70. That is a sum exclusive of VAT. VAT is not recoverable as the claimant is registered.

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