Bloomsbury International Ltd & Others v Sea Fish Industry Authority & Anothers
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HAMBLEN,Mr Justice Hamblen |
| Judgment Date | 24 July 2009 |
| Neutral Citation | [2009] EWHC 1721 (QB) |
| Docket Number | Case No: TLQ/09/0137 |
| Court | Queen's Bench Division |
| Date | 24 July 2009 |
[2009] EWHC 1721 (QB)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Hamblen
Case No: TLQ/09/0137
Claim No: HQ08X03511
Mr Charles Graham QC and Ms Valentina Sloane (instructed by The Wilkes Partnership) for the Claimants
Mr Charles Flint QC and Mr Robert Weekes (instructed by Nabarro LLP) for the 1 st Defendant
Mr Tim Eicke and Mr Ian Quirk (instructed by DEFRA) for the 2 nd Defendant
Hearing dates: 15/6/2009 – 18/6/2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Hamblen
Introduction
1. The First Defendant (“the SFIA”) is a Non Departmental Public Body whose stated mission is “ to support the seafood industry for a sustainable, profitable future”. According to its website, the SFIA:
“works across all sectors of the seafood industry to promote good quality, sustainable seafood. Our research and projects are aimed at raising standards, improving efficiency and ensuring that our industry develops in a viable way.
We are the UK's only cross-industry seafood body working with fishermen, processors, wholesalers, seafood farmers, fish friers, caterers, retailers and the import/export trade.
A Non Departmental Public Body (NDPB), we are sponsored by the four UK government fisheries departments and funded by a levy on seafood.”
2. The present proceedings concern the legality of the levy which funds the SFIA. The Claimants are a group of importing companies who challenge the legality of the levy in so far as it purports to apply to importers.
Outline of the case
3. The SFIA was constituted and given power to impose a levy on sea fish and sea fish products under the Fisheries Act 1981 (“the 1981 Act”). This power is given effect by regulations made under the Act, currently the Sea Fish Industry Authority (Levy) Regulations 1995 (“the Regulations”). The SFIA is required by the 1981 Act to apply the proceeds of the levy for the purpose of promoting the efficiency of the sea fish industry and so as to serve the interests of that industry as a whole, having regard to the interests of consumers. The SFIA is also required by the 1981 Act not to discriminate against the sea fish industries of other member states of the EU.
4. The Claimants are all engaged in the UK sea fish industry, primarily as importers of sea fish and sea fish products. They have paid the levy to the SFIA as required by the Regulations. In this action they contend that the SFIA has no power to impose the levy on importers who import sea fish or sea fish products from abroad and (by proposed amendment) that the imposition of the levy on importers would be contrary to articles 23 and 25 of the EC Treaty.
5. If the Claimants succeed on either limb of their argument, they seek restitution from the SFIA in respect of the levy payments which they have made in the past either on the basis that there has been an ultra vires demand for payment of a levy or on the grounds of mistake. The Claimants either seek repayment of all levy payments made (on the basis that section 32(1)(c) of the Limitation Act 1980 applies to extend the limitation period) or repayment for six years prior to the commencement of proceedings (9 September 2008).
6. In addition to contending that there is no restitutionary claim since the Regulations are valid, the SFIA contends that the Claimants should not be entitled to restitution for mistake, since it has changed its position as a result of the payments. The SFIA also relies on the six year limitation period as barring any claim for levy paid before 9 September 2002.
7. To the extent that the Regulations are valid, the SFIA seeks payment of outstanding levy from the Claimants, since the Claimants have not made any payments of levy since commencing these proceedings.
8. The Second Defendant (“DEFRA”) is the sponsoring Department for the SFIA for England and has ultimate responsibility for the SFIA in its role as the UK Fisheries Department. DEFRA's predecessor, MAFF, was the lead government department responsible for promoting the 1981 Act through Parliament and made the current secondary legislation thereunder.
9. DEFRA sought (and was permitted) to be joined as a party to proceedings that had been brought by the Claimants against the SFIA in view of the challenge made to the legality of legislation for which it was responsible.
10. DEFRA generally supports the position of the SFIA in these proceedings. In addition, it contends that it is an abuse of process for the Claimants to bring this claim by way of a private action, rather than through judicial review proceedings and it invites the Court to strike out the claim on this basis.
11. The Claimants request permission to make a further amendment to their claim to seek Francovich damages from DEFRA on the basis that the levy on imported fish was contrary to Articles 23 and 25 of the EC Treaty, which application is opposed by DEFRA.
The Issues for trial
12. The Claimants’ primary case is that, insofar as the Regulations seek to impose a levy on imported sea fish and sea fish products 1, they are ultra vires and void, since the 1981 Act did not give the SFIA the power to impose a levy on imported sea fish.
13. This raises an issue of statutory construction, relating in particular to what the 1981 Act means in section 4(3) by stating that Regulations may impose a levy on sea fish “landed in the United Kingdom or trans-shipped within British fishery limits”.
14. The Claimants contend that section 4(3) of the Act defines the circumstances in which a levy may be imposed and that, giving the term “ landed in the United Kingdom” its natural and proper meaning, it covers sea fish which have been caught and are then brought to land (for example, a fisherman landing his catch) in the UK. The term cannot extend to cover sea fish which have been caught and then brought to land outside the UK and are then imported into the UK.
15. The Defendants contend that section 4(3) is permissive rather than restrictive and that, in any event, on its true construction the term “ landed” covers both sea fish which are brought to land for the first time and sea fish imported into the UK.
16. The Claimants’ alternative case (by proposed amendment) is that if the levy applies to imports then it would be contrary to Articles 23 and 25 of the EC Treaty (formerly Articles 9 and/or 12 of the Treaty of Rome), since it would be a charge having equivalent effect to a customs duty. The Claimants rely upon this both as an aid to construction on their first limb (since, if possible, the Act should be construed so as to be lawful) and as a separate ground for the Regulations being ultra vires and void insofar as they impose a levy on imported sea fish.
17. In response to this second limb, the Defendants contend that the levy is not a charge having equivalent effect to a customs duty. Further or alternatively, they contend that it is a charge relating to a system of internal taxation applied systematically and in accordance with the same criteria to domestic products and imported or exported products alike and is, therefore, permissible under Article 90 of the EC Treaty.
18. Whilst the SFIA was willing to consent to that amendment being made, DEFRA refused to consent and it was agreed that the application to amend should be adjourned to the trial. For reasons set out below, I give permission for this amendment to be made.
19. However, in the skeleton for the trial the Claimants sought to raise a further alternative case to the effect that the levy is incompatible with Articles 23 and/or 25 and/or Article 90 on the basis that domestic sea fish and sea fish products derive an exclusive benefit or a proportionately greater benefit from the levy than do imported products.
20. If the burden on domestic products is wholly offset then the charge is a charge on imported products alone and falls within Article 25. Alternatively, if the burden on domestic products is only partially offset but in a disproportionate manner then it discriminates against imported products in breach of Article 90. The case therefore depends upon an analysis of the benefits derived from the levy.
21. This further alternative case raises factual issues which the parties were not in a position to deal with at the trial and I ruled that it would not be tried at the hearing before me. The parties then agreed that the issue of permission to amend should be held over until after judgment had been given on the existing issues.
22. The hearing before me was an expedited trial pursuant to the Order made by Nicol J. on 12 February 2009 and concerned liability issues only. All parties served witness statements, but, since there was no material challenge to the content of those statements, none of the witnesses gave oral evidence.
23. The essential issues to be determined at this trial can be stated as follows:
(1) Is the Claimants’ claim an abuse of process in that it seeks to raise a challenge to a public law act by means of a private law action depriving the Defendants of the protection guaranteed by CPR Part 54, and accordingly should the claim be struck out?
(2) Are the Regulations in so far as they authorise the imposition of a levy on sea fish which were landed outside the United...
To continue reading
Request your trial
-
Bloomsbury International Ltd & Others v Sea Fish Industry Authority & Anothers
...EWCA Civ 263 [2009] EWHC 1721 (QB)" class="content__heading content__heading--depth1"> [2010] EWCA Civ 263 [2009] EWHC 1721 (QB) IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION Mr Justice Before: Lord Justice Mumm......
-
The Test Claimants in the FII Group Litigation v The Commissioners for HM Revenue and Customs
...defence. FII (High Court) I may have been the pioneer, but the trail has subsequently been followed by Hamblen J in Bloomsbury International Ltd v Sea Fish Industry Authority [2009] EWHC 1721 (QB), [2010] 1 CMLR 12, at [133] to [144] and by Vos J in ( Littlewoods Retail Ltd v HMRCLittlewoo......
-
The Secretary of State for Transport v Arriva Rail East Midlands Ltd (“Arriva”)
...In other areas of law, it has not been the case either: for example, in Bloomsbury International Ltd v Sea Fish Industry Association [2009] EWHC 1721 (QB), a case relied on by the appellant, a claim for restitution was permitted as well as a claim for 84 Part of Mr Thompson's argument to s......
-
Dexia Crediop S.p.A. v Comune di Prato
...expenditure objection". 71 Prato's submissions at the close of evidence relied upon the analysis by Hamblen J in Bloomsbury International Ltd v Sea Fish Industry Authority [2009] EWHC 1721 (QBD), [2010] 1 CMLR 12 (" Bloomsbury"), at para 137. I set out the relevant passage with emphasis ad......