R v Dairy Produce Quota Tribunal for England and Wales, ex parte Caswell and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE LLOYD,LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE KERR,LORD JUSTICE NEILL,LORD JUSTICE MANN,LORD JUSTICE BINGHAM
Judgment Date26 May 1989
Neutral Citation[1989] EWCA Civ J0526-10
Judgment citation (vLex)[1989] EWCA Civ J0526-7
Docket Number89/0528,89/0531
Date26 May 1989

[1989] EWCA Civ J0526-10

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 POPPLEWELL)

Royal Courts of Justice

Before:

Lord Justice Kerr

Lord Justice Lloyd

and

Lord Justice Butler-Sloss

89/0531

CO/1736/87

In the Matter of an Application for Judicial Review

The Queen
and
Dairy Produce Quota Tribunal for England and Wales
Ex Parte Albert Raymond Caswell
Eirlys Edwina Caswell (t/a Mr. A.R. & Mrs. E.E. Caswell)

MR. RICHARD GORDON (instructed by Messrs. Dawson & Co., Solicitors, London, WC2) appeared on behalf of the Applicants (Appellants).

MR. GEORGE PULMAN Q.C. (instructed by The Solicitor, Ministry of Agriculture, Fisheries and Food, London SW1A 2EY) appeared on behalf of the Respondent (Respondent).

LORD JUSTICE LLOYD
1

In this case we have been concerned with the effect of delay on an application for judicial review. The problem arises in this way. Very often, as was pointed out in the course of argument, the court's attitude to delay in a particular case goes hand in hand with its decision on the merits. So if the application has merit, the time is extended. If an extension is refused, the court goes on to say that the application would in any event have been dismissed on the merits. But here Popplewell J. has very properly considered the two matters separately. He has held that the applicants are entitled to succeed on the merits. But in a separate judgment, given two days later, he has refused them effective relief because of undue delay on their part in making the application.

2

It is necessary to state the background in the barest outline in order to explain how the problem arises. The applicants, Mr. and Mrs. Caswell, are dairy farmers in South Wales. They have two farms. We are not concerned with the first. They bought the second in September 1983. In March 1984 the Council of Ministers decided that dairy produce quotas should be introduced throughout the E.E.C. In order to qualify for a quota, a farmer had to be in milk production by 2nd April 1984. Since the Caswells were only just starting up they did not qualify for a wholesale quota. But there were provisions in the Dairy Produce Quota Regulations 1984 for the making of a claim on the ground of exceptional hardship. In order to make good a claim for quota under the exceptional hardship provisions, the Caswells had to show that before 2nd April 1984 they had "entered into a transaction or made an arrangement.…the reasonably expected outcome of which" would be a level of milk production not otherwise attracting quota under the Regulations: see Schedule 2 paragraph 17(3)(a).

3

About 4, 000, or 11 per cent, of all milk producers made exceptional hardship claims. The Caswells claim came before a Dairy Produce Quota Tribunal on 13th February 1985. Mr. Caswell was asked how many cows he was expecting to milk by 31st March 1985. He replied 70. If he had been asked how many cows he was expecting to milk thereafter, he would have replied 150. But the Tribunal took the view, like many other Tribunals throughout the country, that they were confined to considering the "reasonably expected outcome" at the end of the first quota year. According to Mr. Caswell's evidence the Chairman told him that he would be free to make a further application for increased quota in the future, when the size of his herd had increased.

4

Popplewell J. has held that the Tribunal misconstrued the regulations. It should not have confined its consideration to the expected outcome at 31st March 1985. It should have determined the Caswells' quota under the exceptional hardship provisions on the basis of the eventual outcome of 150 cows, not 70 cows.

5

This is very serious from the Caswells' point of view. Contrary to the impression which they say they were given by the Chairman, it is now too late for them to apply for additional quota. Once the quota is established for a particular farm, or piece of land, that level of production is established for all time. The only way in which the Caswells could increase their quota would be by buying in or leasing additional quota from another farmer. The result of the Caswells' quota being fixed at less than it should have been is that they have suffered superlevy, a form of tax imposed on excess production. In 1986/7 this amounted to £4,105. In 1987/8 it amounted to £18,182.

6

Popplewell J. held, as I have said, that the applicants' construction of the Regulations was correct. He granted them a declaration to that effect. But he did not go on to grant them substantive relief, in the form of certiorari or mandamus. He decided, quite rightly, that he had first to determine the effect of delay in making the application. The facts relating to delay were as follows.

7

The Tribunal's decision was posted to the Caswells on 20th February 1985. Thereafter Mr. Caswell consulted a Mr. Evans, a local expert in milk marketing matters. Mr. Evans advised that there was nothing to be done for the time being. Mr. Caswell then consulted the European Commission. He received an answer which he says confirmed his impression that he could make a further application for additional quota in due course. But he did not make a further application. Effectively he did nothing. In his first affidavit he said that he cut production to bring it into line with his quota. But in a second affidavit he corrects that impression. If he had indeed cut production, he would not have been charged with superlevy in the figures I have mentioned.

8

It was not until May 1987, well over two years after the Tribunal's decision, that he learned through Mr. Evans of the possibility of an application for judicial review. He consulted his local solicitor, who was unable to help. But he was put in touch with his present solicitor, who could. Thereupon matters proceeded with reasonable despatch, subject to what seems to be becoming the almost inevitable delay in obtaining legal aid. The application for leave to move came before Mann J. on 2nd November 1987. He dealt with the matter ex parte on documents in the usual way. He observed "You will have to deal with delay at the hearing".

9

The Ministry of Agriculture might have applied to set aside the order granting leave, on the ground that the applicants had failed to show good reason for extending the time for granting leave under R.S.C. 0. 53 r.4. But the Ministry did not take that course. They left it until the very last moment to file evidence in support of their argument that the applicants had been guilty of undue delay within the meaning of section 31(6) of the Supreme Court Act 1981. In another parallel application, that of Mr. Robert Vevers, the Ministry left it so late that the judge excluded the evidence altogether. So unlike the Caswells, Mr. Vevers' application for substantive relief succeeded, and the Tribunal is now presumably considering his claim. But in the instant case, the judge admitted the evidence, and in a very full and careful judgment found, as I have said, that the applicants' delay barred their claim. There is now an appeal to this court. There is no appeal by the Ministry against the judge's decision on the merits.

10

It is convenient at this stage to set out in full the terms of 0. 53, r.4 and section 31(6) and (7) of the Supreme Court Act 1981.

11

0. 53 r.4 provides:

"4.—(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.

(3) The preceding paragraphs are without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made."

12

Section 31(6) of the Supreme Court Act 1981 provides:

"(6) Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant—

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(7) Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made."

  • (a) leave for the making of the application; or

  • (b) any relief sought on the application,

13

It is at once apparent that these provisions are difficult to read together. How does one reconcile the absolute requirement in 0. 53 r.4 that an application for leave must be made within three months at the latest, unless good reason be shown, with the more relaxed test under section 31(6) which depends only on undue delay, and the absence of substantial prejudice to third persons and detriment to good administration? Mr. Gordon, for the applicants, submitted that reconciliation was impossible, and the statute should prevail. But this is difficult to accept in the light of section 31(7) which provides specifically that section 31(6) is without prejudice to any rule of court which has the effect of limiting the time within which an application for judicial review may be made. It would be tempting to regard section 31(7) as thus providing the answer, and conceding the field to 0.53. But this...

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