Tuesday 22nd – Thursday 24th June 2021
The Defendant appeals, with permission to appeal in part from Mann J, only in respect of paragraph 1 of his order dated 23 January 2020 (the main order) in respect to the answers given to Preliminary Issues 5,8 and 14 as set out in that paragraph, following his judgment of the same date. He granted permission to appeal by order dated 1 April 2020.
Mann J sat on the trial of certain preliminary issues arising in this Group Litigation in which around 315 Claimants say they were entitled to have VAT invoices from the Defendant in respect of postal supplies for a period from 1977 to date, as they allege the postal services they received were, as a matter of EU law, not permitted to be exempted from VAT. They plead the Defendant is under a contractual, domestic statutory duty and EU law duty to issue VAT invoices. The value of the claim, if successful, is estimated at 500 million sterling.
The claims arise from the CJEU judgment in C-357/07 R (TNT Post UK Ltd) v HMRC in 2009 which set out the scope of the VAT exemption for postal services under EU law. Until the CJEU judgment (TNT1) in 2009 (and subsequent domestic legislation) it was generally assumed (by and large) no VAT was payable on postal services provided by the Defendant.
The Claimants wish to use the VAT invoices to reclaim input tax from HMRC. The form and nature of the claims are the same and seek remedies including damages, injunctive relief and/or specific performance. There are 3 Test Claimants. The Judge noted HMRC have an indirect interest in the GLO but have not attempted to intervene.
The Issues in question raised the applicability of limitation periods under the Limitation Act 1980. The Judge found that by concession, the relevant time limits in various provisions of the Act for claims for injunctive relief (Issue 5), for specific performance (Issue 8) and for an injunction (Issue 14) were all disapplied by section 36(1) of the Act.
The issue on the Defendant’s appeal is whether the time limit provided for in s2 of the Act for actions founded on tort (ie 6 years) applies to a claim for injunctive relief or whether that time limit is displaced by s 36 (1) of the Act.
Related matters:- (1) the Claimants’ appeal in respect of the answer to Issue 1, is brought with permission in part from Mann J from his order dated 23 January 2020.
(2) the Claimants also applied for permission to appeal in respect of Mann J’s answers to Issues 2, 3, 4, 6,7 , 11 and 12. Newey LJ’s order dated 13 August 2020 granted permission to appeal only in respect of Issue 2.
(3) the Claimants also applied for permission to appeal and an extension of time in respect of Mann J’s order dated 1 April 2020 in respect to his costs order (that the Claimants pay the Defendants’ costs of the Issues (save for some reserved costs). Newey LJ’s order dated 13 August 2020 granted permission to appeal and an extension of time.