Bourgoin S.A. v Ministry of Agriculture, Fisheries and Food

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE OLIVER,LORD JUSTICE PARKER,LORD JUSTICE NOURSE
Judgment Date29 July 1985
Judgment citation (vLex)[1985] EWCA Civ J0729-3
Date29 July 1985
Docket Number85/0459

[1985] EWCA Civ J0729-3

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(MR. JUSTICE MANN)

Royal Courts of Justice

Before:

Lord Justice Oliver

Lord Justice Parker

and

Lord Justice Nourse

85/0459

Between:
Bourgoin S.A. and Others
Plaintiffs (Respondents)
and
The Ministry of Agriculture Fisheries and Food
Defendant (Appellant)

THE SOLICITOR GENERAL ( SIR PATRICK MAYHEW QC), MR. PETER SCOTT QC and MR. RICHARD PLENDER (instructed by The Solicitor, Ministry of Agriculture Fisheries and Food, London SW1A 2EY) appeared on behalf of the Defendant (Appellant)

MR. RICHARD BUXTON QC, MR. CHRISTOPHER VAJDA and MAITRE NEBOT ROLAND (of the Paris Bar) (instructed by Messrs. McKenna & Co, Solicitors, London WC2R OHF) appeared on behalf of the Plaintiffs (Respondents)

LORD JUSTICE OLIVER
1

This is an appeal from a decision of Mr. Justice Mann on the hearing of a preliminary issue in an action. The issue, in short, was whether paragraph 23 of the statement of claim in the action, in conjunction with all or any of paragraphs 24, 25 and 26, disclosed any cause of action.

2

The facts relevant to the hearing of the appeal can be relatively shortly stated. The first five plaintiffs in the action are companies incorporated and carrying on business in France where they are engaged in the production and sale of frozen turkeys and turkey parts. The sixth plaintiff is an English company whose shares are owned by two of the other plaintiff companies and which acts as agent in England for the distribution of their products. The seventh plaintiff is an association for the promotion of the interests of French turkey producers of which the first five plaintiffs are members. S.24(l) of the Diseases of Animals Act 1950 authorised the Minister of Agriculture to make orders prohibiting the landing within Great Britain from abroad of animals or animal carcases or any specified kind of animal or carcase "for the purpose of preventing the introduction of disease into Great Britain". That power was exercised in 1980 as regards the importation of poultry by the Importation of Animal Products and Poultry Products Order 1980 ( Statutory Instrument 1980 No. 14), article 4 of which prohibited the importation from abroad of turkeys and turkey parts unless authorised by a licence issued by the Minister. The 1950 Act was repealed by the Animal Health Act 1980 which replaced it, but the 1980 order continued to have effect by virtue of s.10 of the 1980 Act.

3

It seems that poultry, and in particular turkeys, are prone to contract a contagious virus disease known as Newcastle disease. This can be controlled by vaccination but a vaccinated bird may, after slaughter, carry the virus in any of its parts. The alternative method of control is by slaughter and destruction of affected birds whenver and wherever the disease breaks out, and this was the method of control which was relied upon in Great Britain up to 1964. Thereafter until the end of August 1981 it was controlled by vaccination and that was the method of control which was at all material times followed in France. That it was considered a satisfactory method of control is evidenced by the fact that until 31st August 1981 the importation of turkeys and turkey parts from, among other countries, France was permitted by a general licence issued under article 4 of the 1980 order. The first five plaintiffs were thus enabled to import birds and to build up a satisfactory and expanding trade in this country.

4

At the end of August 1981 the Ministry abandoned the previous policy of vaccination and reverted to the expedient of slaughter which had prevailed up to 1964. At the same time it adopted a policy of excluding from Great Britain any turkeys or turkey parts having their origin in countries which relied upon vaccination for controlling the disease. As a result, on 27th August 1981, the general licence for the importation of turkeys and turkey parts from France was revoked and it was replaced by a new general licence authorising the landing in Great Britain of turkeys and turkey parts only if they had their origin in Denmark or Ireland. As a result the French turkey producers' trade in England came to an end.

5

They were, perhaps not unnaturally, aggrieved and suspected that the alteration in policy had been brought about not by any genuine fear that vaccinated birds were likely to spread the disease in Great Britain but in response to pressure by British turkey producers whose business was being severely hit by competition from France. The change of policy by the British Government was notified to the Commission of European Communities on 27th August 1981. Thereafter steps were taken by the French Government through the Commission to challenge the withdrawal of the licence to import on the ground that it was an infringement of article 30 of the Treaty establishing the European Economic Community which is in the following terms:

"Quantitative restrictions on imports and all measures having equivalent effect shall, without prejudice to the following provisions, be prohibited between Member States".

6

That claim was unanswerable unless a justification could be found in some other article in the Treaty, but the British Government's answer was that the restriction imposed by the non-grant of a licence was justified under article 36, which provides (so far as material) that

"the provisions of Article 30….. shall not preclude prohibitions or restrictions on imports….. justified on grounds of……the protection of health and life of….. animals….. Such prohibitions or restrictions shall not, however, constitute….. a disguised restriction on trade between Member States".

7

The matter finally came before the European Court of Justice under article 16 9 of the Treaty, and on 15th July 1982 the court rejected the British Government's answer and held that the United Kingdom had failed to fulfil its obligations under article 30 of the Treaty, observing that

"certain established facts suggest that the real aim of the 1981 measures was to block, for commercial and economic reasons, imports of poultry products from other Member States, in particular from France".

8

Following that judgment the Minister issued a further licence, and imports by the first five plaintiffs were resumed in the latter part of November 1982. They had, however, suffered the disruption of their trade in the meantime and, in particular, lost the benefit of the Christmas season of 1981. On 6th May 1982 they issued the writ in this action naming the Ministry of Agriculture as defendant and claiming substantial damages. The question in issue in this appeal is whether, in as much as the breach of duty alleged is a breach by a member state of the provisions of article 30 of the Treaty, the individual plaintiffs have any rights in English law to sue for damages. It is the Solicitor-General's contention on the Ministry's behalf that the only which the plaintiffs had—and it his, it is contended, now become academic—was to apply for judicial review of the Minister's decision to revoke the previous licence or to refuse a new licence, a right of which in fact they never sought to avail themselves, preferring to rely upon the pursuit of the matter through the Commission of the European Communities and the European Court.

9

The amended statement of claim which is endorsed on the Writ, after setting out the facts which I have attempted to summarise above, proceeded in paragraphs 23–26 as follows:

"23. The withdrawal by the defendant of licences for the import of turkeys and turkey pieces and other poultry products into England, and the refusal thereafter of the defendant to permit turkeys or turkey pieces and other poultry products to be imported into England, had caused and is continuing to cause the plaintiffs substantial loss and damage. The plaintiffs set out in a separate document served herewith pursuant to R.S.C. order 18 rule 12(2) particulars of the said loss and damage so far as it is possible to state them at the date of this pleading and reserve the right to supplement their pleading as to damages thereafter.

"24. The said loss and damage was caused to the plaintiffs and continues to be caused to them by reason of the breach of the defendant of his statutory duty in that the said withdrawal of licences was in breach of article 30 of the Treaty of Rome.

"25. Further or alternatively, the defendant owed a duty in law to any person foreseeably likely to be injured by a breach by him of article 30 (including the plaintiffs) not so to breach article 30 or to act contrary to the provisions of article 30. The said loss and damage was caused to the plaintiffs and continues to be caused to them by the defendant's breach of that duty.

"26. Further or in the further alternative, the defendant by withdrawing the said licences in breach of article 30, and further by withdrawing the said licences with the motive of protecting English turkey producers from competition by the plaintiffs (as set out in paragraphs 19–21 hereof), misconducted itself in the discharge of its public duties and in its public office, in that it exercised its powers to withdraw the said licences for a purpose that (as the defendant knew) was contrary to article 30 and/or was calculated to and did unlawfully damage the plaintiffs in their business and/or was not the purpose for which the said powers had been conferred upon the defendant".

10

No attempt was made to strike out the action, but in paragraph 41 of its defence the plaintiff pleaded that the paragraphs of the statement of claim quoted above disclosed no cause of action and that question was, on 10th...

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