Feakins v Intervention Board for Agricultural Produce
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses,Lord Justice Dyson |
| Judgment Date | 08 June 2006 |
| Neutral Citation | [2006] EWCA Civ 699 |
| Date | 08 June 2006 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2000/2658(A)/FC2 |
[2006] EWCA Civ 699
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Dyson
Lady Justice Smithand
Lord Justice Moses
Case No: A2/2000/2658(A)/FC2
Mr Andrew Sutcliffe QC (instructed by Messrs Parker Bullen) for the Appellants
Ms Sarah Lee (instructed by the Legal Division of the Rural Payments Agency) for the Respondent
Introduction
This is an application pursuant to CPR52.17 for permission to re-open an appeal of 23 October 2001. It is brought by Mr and Mrs Feakins ("the Feakins") against the Intervention Board for Agriculture Produce ("IBAP"). IBAP's functions have since been assumed by the Rural Payments Agency but I shall refer to the respondents as IBAP throughout. On 23 October 2001, this court dismissed the Feakins' appeal against the judgment of Ian Kennedy J of 23 June 2000. That judgment was in favour of IBAP on its application for summary judgment under RSC Order 14 on a counterclaim against the Feakins.
That counterclaim related to a claim for what was called "clawback". It is now suggested that the Court of Appeal was misled by an official of IBAP as to the way the system for claiming clawback was operated and as to the underlying documentation which went to support the original counterclaim. Had the Court of Appeal not been misled, so it is argued, the Feakins would have been permitted to defend the counterclaim.
This is the fourth action involving this applicant. The full history of this matter may be found in the decision of Jack J in an action brought by Mr Feakins against his solicitor, Mr Burstow, for negligence on 8th September 2005— [2005] EWHC 1931 QB. Mr Feakins was successful in that action. It was that action which brought to light the inaccuracies in the statement of the official to the Court of Appeal in October 2001. But anyone wishing to have a full account should read that judgment. The consequences of IBAP's attempt to enforce the judgment it obtained, as a result of the decision of Kennedy J and the Court of Appeal in 2000 and 2001, may be followed by reading the decision of this court given in judgments dated 9 December 2005 [2005] EWCA Civ 1513. New readers, however, should begin here.
Mr Feakins was a successful sheep farmer and exporter with his former wife from whom he was divorced in 2000. He exported live sheep. Between 1989 and 1992 such exports were subject to a European Community system applicable only to the United Kingdom. A premium was payable on lambs of appropriate quality sold in the market for slaughter. However, if such lambs were exported elsewhere within the Community an amount equivalent to the premium had to be repaid by the exporter so as to remove the price advantage that exporter would have over other producers elsewhere within the Community. That repayment of the premium was called "clawback". Some categories of sheep had not attracted the premium and thus, when exported, were exempt. The recovery of clawback was provided for by a Community Regulation made in 1984. In the early 1990s legal challenges were raised to the clawback system. During the course of those proceedings IBAP claimed sums by way of clawback from the Feakins. Although the Feakins, along with other exporters, persisted in their legal challenge they did not, as a result of what was subsequently discovered to be the negligence of their solicitors, dispute the quantum of the sums owed.
The Clawback System
It is important, for the purposes of these proceedings, to give an accurate account of the system whereby exports of sheep were exempted from clawback. Sheep to be exported were required to rest at a lairage close to the port. There they were inspected by the Meat and Livestock Commission ("the MLC"). Inspectors checked to see if those sheep were exempt from clawback. If they were, an inspector would certify exemption on a form, CES3. A sheep not exempt would be readily identifiable because of a 12mm hole punched in its right ear. Sheep without such a hole were potentially exempt from clawback. If an inspector was satisfied that a sheep was exempt he would punch a 6mm hole in the left ear. If the sheep were exempt, they would be put on a loaded transporter which was sealed by the MLC. The seal numbers were recorded on the CES3. If the shipments were not exempt, the transporter was not sealed.
The CES3 would be put in an envelope sealed by the MLC and given to the driver. At the port it would be handed by the driver to an agent who would hand it to Customs. A second copy of the CES3 was sent by MLC to the Board. The third copy was retained by the MLC. It is vital to note that the exporter did not receive a copy of the CES3.
The MLC completed a further form, CES4, a copy of which was to be handed to the exporter. The completion of the CES3 followed completion of the CES4.
The export document was known as C1220. This was used whether or not the sheep to be exported attracted clawback. It was presented to Customs by the exporter's agent. Mr Feakins' agent, a Mr Revell, did not fill these forms out accurately. But it is important to note that, as found by Jack J, the errors did not prevent the Board accepting the shipment as exempt. It appears that very few, if any, CES3 numbers were ever included by exporters on the C1220s. The exporter's agent would not see the CES3. He would merely hand the sealed envelope containing the CES3, obtained from the driver, to the Customs. It appears he would not put the number of the CES3 on the C1220s. Although the exporter would in due course receive a copy of the CES4 and this would have a CES3 number on it, it would be too late for that number to be placed on the C1220.
I set out these details because they assist in determining the extent to which the Court of Appeal was misled in the description it received as to the nature of the system. The important facts to be borne in mind are that the exporter never had a copy of the CES3 and that the CES3 number was not placed on the C1220.
A Taylor v Lawrence Application
In Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528, five members of the Court of Appeal, including the Lord Chief Justice and Master of the Rolls, held that the Court of Appeal had an implicit jurisdiction to correct wrong decisions and thereby ensure public confidence in the administration of justice. But that jurisdiction could only be exercised to avoid "real injustice in exceptional circumstances" (see paragraph 54). Such an exercise of the residual jurisdiction of this court required it to be established clearly that a significant injustice had probably occurred and that there was no alternative effective remedy.
Following that decision, CPR 52.17 headed "Re-opening of Final Appeals" was promulgated on 6 October 2003:-
"The Court of Appeal….will not re-open a final determination of any appeal unless –
(a) it is necessary to do so in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to re-open the appeal;
(c) there is no alternative effective remedy."
In Re Uddin [A Child] EWCA Civ 52, [2005] 1 WLR 2398, the Court of Appeal considered the application of Taylor v Lawrence and the Rule to an application to adduce fresh medical evidence. It concluded that it was not sufficient simply to rely upon the principles in Ladd v Marshall [1954] 1 WLR 1489. In circumstances where fresh evidence had been discovered, the court concluded that the injustice which would be perpetrated if the appeal was not re-opened must be:-
"so grave as to overbear the pressing claims of finality in litigation." (paragraph 21)
It must be shown, not only that there is a real possibility that the result reached in earlier proceedings was erroneous, but that:-
"there exists a powerful probability that such a result has in fact been perpetrated." (paragraph 22)
The court held that although that was a necessary condition, it was not sufficient; the court would also have to consider the extent to which the complaining party was author of his own misfortune and that there was no alternative remedy.
Events leading to hearing of the Court of Appeal in "clawback action" on 9/10 October 2001
Once the Feakins had issued a writ, in January 1992, against IBAP challenging the validity of the clawback system, a syndicate was formed with other exporters to pursue the action. On 10 March 1992 the European Court of Justice declared the clawback system, which had ended on 6 February 1992, unlawful; in consequence a new Regulation was promulgated for recovery of clawback, dated 13 July 1992.
On 27 August 1992 IBAP sent an undated letter to the Feakins alleging that they owed £431,440.34 in respect of clawback which had not been paid. The claim was made up of two annexes. Annex 2 related to a re-calculation in respect of unpaid invoices based on a four week average. Annex 3, of greater significance in this application, purported to identify:-
"sheep meat exports in previous years incorrectly exempted for clawback.
Exemption arose because the export declaration indicated goods were exempt from clawback but subsequently you did not supply the supporting CES form. If you are able to produce these exemption forms these charges will be deducted from the overall sum."
As the judgment of Jack J made clear, it was not possible for an exporter, such as the Feakins,...
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