UK Border Force Success for Litigation team

Peter Hastings, Rogers and Norton


We are delighted to report that our litigation team have had further success at Court in Southampton, recovering valuable nitrous oxide canisters. The gas was seized by UK Border Force earlier this year, as it is illegal to supply or import for personal use, unless it can be proved to be destined for use in cream chargers for use in the catering industry.

Oliver Powell from Outer Temple Chambers acted on our behalf and we were delighted with his work and advocacy.

Although the gas was previously a ‘legal high’, it is now illegal to supply or import Nitrous Oxide for personal under the Psychoactive Substance Act 2016. Nitrous Oxide is used as pain relief during medical procedures such as dental work – it can also be legally bought for use in whipped cream dispensers for catering purposes.

As the gas can be legally used in dispensers, it has led to companies having large scale issues with HMRC and Border Force retaining their goods as long as possible and asking for additional proof of the intended use for catering purposes. Such detention and seizures cause serious financial implications for businesses legitimately importing them.

The goods in question are a new product in a disposable gas bottle, filled with E942 food grade Nitrous Oxide. The idea is to make things simpler for the catering industry, who currently have to import the product in cream chargers.

It was the UKBF’s case that the Goods imported were liable to forfeiture under the Customs and Excise Management Act 1979 (‘CEMA’), because they were in breach of a prohibition imposed by s.12 PSA 2016. They were also liable to be forfeited under the Psychoactive Substances Act 2016 (‘PSA’), as they could be consumed by any individual for their psychoactive effects; and the importation was not for an exempted activity.

Following the initial argument and further evidence from the Company, the UKBF withdrew their application for condemnation of the goods the day before the trial was due to commence. Despite UKBF’s opposition to the application for costs, they were successful.

In addition, the decision had wider implications for the Company, with the UKBF agreeing to withdraw a further application for condemnation of goods seized from the Company that was due to be heard in Ipswich in autumn 2019.

Our litigation team have a wide ranging understanding and knowledge of the workings of HMRC Border Force, acquired over many years, enabling them to offer support and advice to clients who experiencing difficulties when importing goods. We are experienced in Condemnation Proceedings, Restoration Claims, Appeals to the First Tier Tax Tribunal, High Court injunctions and Judicial Reviews.

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