Out of the Perinpanathan?

Condemnation & Cash Forfeiture

27 June 2024

Where a party whose goods or vehicle have been seized by Border Force successfully argues (usually in a Magistrates Court) that their goods or vehicles should not be condemned they will get their goods (or equivalent sum) or vehicle back but usually cannot recover their costs of winning the case; this often leaves them considerably out of pocket.

The basis for this situation is the case of R (Perinpanathan) v City of Westminster Magistrates Court [2010] EWCA Civ 40 (Stanley Burnton LJ at paras [40]) which determined that

“where the party opposing the order sought by the public authority [e.g. a condemnation order] has been successful, in relation to costs the starting point and default position is that no order should be made”

although a costs order could be made

“if the conduct of the public authority in question justifies it”.

The reasoning being as long as there was a reasonable basis for seizing the goods and/or vehicle (and no evidence of bad faith on the part of Border Force), it would be inappropriate for Border Force, exercising its statutory power of seizure and then following the statutory process of starting condemnation proceedings, to have to pay costs if a court came to the conclusion on the evidence presented by both parties that the goods and/or vehicle should not be condemned as forfeit.

Even if the Court were minded to award costs “the financial prejudice necessarily involved in litigation would not normally justify an order” so there had to be “substantial hardship” for a successful party to recover their costs (para [41]).

The Court accepted (Lord Neuberger MR at para [77]) that:

“The effect of our decision is that a person … who has done nothing wrong, may normally not be able to recover the costs of vindicating her rights against the police … where the police have behaved reasonably”

Perinpanathan was considered by the Supreme Court in Flynn Pharma which found that:

“[97] … there is no generally applicable principle that all public bodies should enjoy a protected status as parties to litigation where they lose a case which they brought or defended in the exercise of their public function ….an important factor  …is the risk that there will be a chilling effect on the conduct of the public body, if costs orders are routinely made against it in those kinds of proceedings …

[98] …the assessment as to whether a chilling effect is sufficiently plausible to justify a starting point of no order as to costs in a particular jurisdiction is an assessment best made by the court or tribunal in question”.

Given that Section 64(1) of the Magistrates Courts Act 1980 sets, as a starting point, that the Court has

“discretion to make such order as to costs …

(b) on dismissing the complaint, to be paid by the complainant to the defendant

as it thinks just and reasonable…”

(where the “complainant” would be Border Force and the “defendant” would be the person who had their goods, etc. seized), i.e. following the usual practice in civil proceedings that the successful party can recover their costs, and the apparent burden (on Border Force) of showing “sufficiently plausible” evidence of a chilling effect of making an order, it may be that successful claimants will be more likely to recover their costs as well as their goods and/or vehicle.

Paul Tapsell’s book  ‘A Practical Guide to Challenging Seizures under the Customs and Excise Management Act 1979’ by Paul Tapsell – Law Brief Publishing will be published in July 2024 price £49.99 and will be available from www.lawbriefpublishing.com or from Becket Chambers (email clerks@becket-chambers.co.uk). Quote code KB45HY4 for a special 10% discount.

Members of Becket Chambers’ Civil Team are able to assist with condemnation, forfeiture and other matters; please contact the clerks on 01227 786331 or via clerks@becket-chambers.co.uk for further details.

For help, advice or if you wish to instruct a member of Chambers, please contact our Clerking team