R Norfolk Meat Traders Ltd v Great Yarmouth Magistrates' Court and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice O'Farrell |
| Judgment Date | 15 June 2017 |
| Neutral Citation | [2017] EWHC 1775 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 June 2017 |
| Docket Number | CO/2664/2017 |
[2017] EWHC 1775 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice O'Farrell
CO/2664/2017
Mr Stuart Jessop (instructed by SAS Daniels LLP) appeared on behalf of the Claimant
Mr Richard Banwell (instructed by FSA Legal Services) appeared on behalf of the Defendant
In this matter the claimant seeks permission to challenge by way of judicial review the decision of the second defendant, the Food Standards Agency, refusing to extend conditional approval and/or grant full approval for operation of the claimant's slaughterhouse and cutting plant; and secondly the decision of the first defendant dated 24 May 2017 dismissing the claimant's appeal against the second defendant's decision.
The claimant today seeks:
i) permission to proceed to judicial review, and in that regard seeks an order for a expedited hearing of the judicial review or an urgent expedited rolled-up hearing and urgent interim relief pending determination of any judicial review, namely a stay of the magistrates' court's decision to dismiss the claimant's appeal against the Food Standards Agency decision;
ii) an order that the FSA's decision dated 2 May 2017 refusing full approval should not take effect; and
iii) thirdly, an order that the FSA allows conditional approval to be extended until the expiry of six months from 24 February 2017, i.e. until the end of August of this year.
The claimant is the Norfolk Meat Traders Limited company ("NMT"), a company incorporated on 21 June 2016, and is the operator of a slaughterhouse and cutting plant at Moor Farm Abattoir, The Mall, Banham in Norfolk. The second defendant is the Food Standards Agency (the "FSA"), which is responsible for regulating the meat industry, including the approval of slaughterhouses and cutting plants. The first defendant is the Great Yarmouth Magistrates' Court. The first defendant has not played any part in the court hearing today although it has lodged an acknowledgement of service.
The background facts can be summarised quite shortly. In or around June or July of 2016 NMT applied to the FSA for approval for operation of the slaughterhouse and cutting plant at Moor Farm Abattoir. On 23 September 2016 conditional approval was granted by the FSA.
On 20 October 2016 the NMT applied to the FSA for approval to operate as a horse slaughterhouse.
On 23 December 2016 the FSA decided to refuse to grant full approval to NMT to operate as a slaughterhouse and cutting plant. The decision was based on deficiencies identified during a visit on 19 December 2016 by Jacqueline Rodriguez, the Field Veterinary Leader. The deficiencies were set out in Annex A to the decision letter and included inadequacy of the facilities, hygiene and animal welfare issues.
On 8 January 2017 a fresh application was made by NMT for approval to operate as a slaughterhouse.
The Zoo Food People ("ZFPL") was a company set up to supply animal by-products to zoos, but started to supply horsemeat for human consumption. On 3 February 2017 ZFPL was given conditional approval to operate as a horse slaughterhouse at the Moor Farm Abattoir.
On 24 February 2017 conditional approval was given to NMT to operate as a slaughterhouse for cattle, calves, sheep and goats.
On 2 May 2017 the FSA decided to refuse to grant NMT full approval to operate on the ground that insufficient progress had been made to allow NMT to meet the relevant requirements of food law. The basis of the decision stated in the letter was that on 31 March 2017 horses were slaughtered at the abattoir by NMT operatives instead of ZFPL operatives, but were health marked with the approval number of ZFPL in breach of EC regulations. The underlying written assessment following an inspection on 10 April 2017 (which was not attached to the letter by the FSA) identified improvements made by NMT in respect of the facilities and its hygiene, but also identified continuing concerns regarding animal welfare issues.
Since 5 May 2017 NMT has been unable to operate as a slaughterhouse. NMT appealed against the FSA decision of 2 May. On 18 and 19 May 2017 the appeal was heard by District Judge Watson at Great Yarmouth Magistrates' Court. On 24 May 2017 the District Judge dismissed the appeal and refused to grant full or conditional approval for NMT to operate as a slaughterhouse.
On 6 June 2017 judicial review proceedings were started by NMT. NMT seeks to rely on the following grounds in support of its judicial review application:
i) first of all, that the issue of animal welfare was irrelevant to the decision by the FSA and/or the magistrates' court, but wrongly was a material consideration in the decision;
ii) secondly, that there was procedural unfairness in the magistrates' court based on the first defendant's decision to admit the FSA report dated 10 April 2017;
iii) thirdly, there was procedural unfairness in that the FSA failed to give NMT the opportunity of responding to concerns raised in the report before making the decision to refuse approval;
iv) fourthly, it was unlawful for the first defendant to go behind the basis for the decision set out in the FSA's letter dated 2 May 2017, namely the deception in breach of regulations in respect of a horse slaughter on 31 March 2017;
v) fifthly, the FSA failed to consider a material factor, namely the clear progress identified in the report of 10 April 2017 when reaching its decision;
vi) sixthly, the first defendant and/or the FSA failed to consider a material consideration, namely the lack of risk when reaching the decisions; and
vii) seventhly, that the decisions were disproportionate to the statutory objectives.
The FSA opposes the application for permission for judicial review and the interim relief sought on the following grounds.
i) Firstly, it is said that there is an alternative remedy available to the claimant and therefore this matter should not proceed by way of judicial review.
ii) Secondly, it is stated that this court should not in any event grant interim relief primarily for two reasons: one is that there is no triable issue, i.e. there is no reasonable ground for the judicial review with any reasonable prospect of success; secondly, that public interest sways the balance of convenience test against granting such interim relief.
iii) Thirdly, it is submitted that this court should not grant permission for judicial review if it gets to that stage or order the expedited hearing sought by the claimant.
Turning to the first issue (which has taken up, quite rightly, most of the court's time today), the alternative remedy argument, the starting point is that it is accepted by the claimant that there is a statutory right of appeal. As identified by the second defendant in its skeleton argument, Regulation 12 and Regulation 13 of the 2009 Regulations clearly give a right of appeal, to the magistrates' court, and then any person aggrieved by dismissal by a magistrates' court of an appeal to it under Regulation 12(1) may appeal to the crown court.
The claimant submits that in this case that is not an equally effective or convenient remedy. Substantial delay will occur if this matter is forced to await an appeal in the crown court, where dates from August onwards have been indicated. Substantial losses have been and will continue to be suffered by the claimant if this court does not deal with it more quickly and/or grant interim relief following the suspension of the operation of the abattoir, which has meant that the claimant has no income from the business but has been forced to pay employees and has been forced to pay rent for the premises. Finally, there is a fundamental issue of law that requires resolution, ground 1 in the judicial review statement of grounds, namely whether animal welfare forms a part of the food law and whether it was a relevant consideration to be taken into account by the FSA in reaching its decision dated 2 May.
The second defendant's position is that the claimant has an accepted statutory right of appeal and has already exercised that statutory right of appeal by the appeal to the magistrates' court under Regulation 12. Therefore it should be forced to seek any further redress by continuing to use that appeal mechanism rather than now seeking to challenge the second defendant's decision by way of judicial review, something that was not raised at the time of the FSA's decision or at the time of the appeal in the magistrates' court.
Reliance is placed on a number of decisions that make it clear that where there is an alternative remedy, judicial review should be scrutinised very carefully by the courts and only permitted in exceptional circumstances. In the case of R (Christopher Willford) v Financial Services Authority [2013] EWCA (Civ) 677, Moore-Bick LJ provided the following guidance:
"20. It was common ground that the court has a discretion whether to give permission to proceed with a claim for judicial review and consider the substance of the claim. It was also common ground, however, that where there is an alternative remedy available to the claimant the court will not ordinarily allow him to proceed by way of judicial review, save in exceptional circumstances, usually because it is satisfied that the alternative remedy is for some reason clearly unsatisfactory."
Referring to the case of R v Chief Constable of Merseyside...
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