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

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Bridge of Harwich,Lord Griffiths,Lord Ackner,Lord Goff of Chieveley,Lord Lowry
Judgment Date17 May 1990
Judgment citation (vLex)[1990] UKHL J0517-2

[1990] UKHL J0517-2

House of Lords

Lord Bridge of Harwich

Lord Griffiths

Lord Ackner

Lord Goff of Chieveley

Lord Lowry

Regina
and
Dairy Produce Quota Tribunal for England and Wales
(Respondents)
Ex Parte Caswell (A.P.) and Another (A.P.) (Trading as Mr. A. R. and Mrs. E. E. Caswell)
(Appellants)
Lord Bridge of Harwich

My Lords,

1

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Goff of Chieveley. I agree with it and for the reasons he gives I would dismiss the appeal.

Lord Griffiths

My Lords,

2

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Goff of Chieveley. I agree with it and, for the reasons he gives, I would dismiss this appeal.

Lord Ackner

My Lords,

3

I agree that, for the reasons given by my noble and learned friend Lord Goff of Chieveley, this appeal be dismissed.

Lord Goff of Chieveley

My Lords,

4

There is before your Lordships' House an appeal from a decision of the Court of Appeal dated 20 May 1989, by which they dismissed an appeal from a decision of Popplewell J. dated 25 November 1988 refusing the appellants substantive relief by way of judicial review on the ground that there had been undue delay on the part of the appellants and that, if substantive relief were granted, there would be detriment to good administration.

5

The matter has arisen as follows. The appellants are dairy farmers, who farm in partnership two farms in Dyfed, called Berthlwyd and Pantdwfn. They sell milk wholesale to the Milk Marketing Board. The present case is concerned only with Pantdwfn. As from 1 April 1984, the sale of milk wholesale became subject to a "wholesale quota" allocated to each milk producer under the Dairy Produce Quotas Regulations 1984 (1984 S.I. No. 1047) ("the Regulations"), which were made to give effect to E.E.C. Regulations (Council Regulation (E.E.C.) No. 856/84 (Official Journal No. L. 90, 1 April 1984, p. 10), Council Regulation (E.E.C.) No. 857/84 (Official Journal No. L. 90, 1 April 1984, p. 13) and Commission Regulation (E.E.C.) No. 1371/84 (Official Journal No. L. 132, 18 March 1984, p. 11). Under the Regulations, milk producers became eligible to be awarded "primary wholesale quota" and "secondary wholesale quota: see regulation 2 and paragraphs 9 and 10 of Schedule 2." The former was allocated on the basis of milk production during the reference year, which was 1983. The latter was allocated on the ground of insufficient primary wholesale quota, being based either on the fact that 1983 was an unrepresentative reference year, so enabling 1981 or 1982 to be selected in its place, or on the extent of a producer's investment for dairy farming. An exceptional hardship claim could, however, be made where (inter alia) a producer had before 2 April 1984 entered into a transaction or made an arrangement, the reasonably expected outcome of which was a wholesale delivery of dairy produce in respect of which wholesale quota was not otherwise capable of being allocated. Exceptional hardship claims were made by a significant number of milk producers, constituting about 11 per cent. of producers.

6

Under the Regulations, a Dairy Produce Quota Tribunal ("D.P.Q.T.") was established: regulation 6. D.P.Q.T. adjudicated on applications for primary and secondary wholesale dairy produce quotas (on appeal from local panels), and it had sole jurisdiction over exceptional hardship claims. It is still in being, though it completed the bulk of its work in 1984 and 1985.

7

The appellants were allocated primary and secondary wholesale quotas in respect of Berthlwyd. However, there was no milk production at Pantdwfn during the reference year (1983) or in earlier years, and so wholesale quota could only be awarded in respect of Pantdwfn on the basis of exceptional hardship. The appellants therefore made a claim on that basis, which was determined by D.P.Q.T. in February 1985. At the hearing before the tribunal, the appellants were asked how many cows they would be able to milk at the end of March 1985 (the end of the first quota year). Milking had not then commenced, but the appellants estimated that by the end of March 1985 they would be able to milk about 70 cows. The chairman of the tribunal then indicated that quota would be awarded only for that number on the basis of exceptional hardship, although the housing and facilities at Pantdwfn could carry a dairy herd of 150 cows. He also indicated to the appellants that there was a possibility of making a further application (an indication which proved to be incorrect).

8

The decision of D.P.Q.T. was posted to the appellants on 20 February 1985. It determined the quantity of dairy produce justified by the appellants' claim for wholesale quota in respect of Pantdwfn on the ground of exceptional hardship as 318,500 litres per annum, being the expected produce from 70 dairy cows at a specified average yield. The appellants then consulted Mr. Goronwy Evans, a local non-legal expert in milk marketing matters. He advised them that there was nothing they could do at that time. They then consulted the European Commission, from which they received a reply in very general terms. It was not until May 1987 that they first became aware of the remedy of judicial review, as the result of an article in the "Farming Press." A local solicitor was then consulted. He frankly admitted that he knew nothing about judicial review, but promptly referred the appellants to their present solicitors. Within a week, they submitted an application for legal aid; it was not however until 5 October 1987, after considerable correspondence, that legal aid was granted to the appellants. Within two days the appellants attended a conference with counsel, who forthwith settled the necessary documents for an application for leave to apply for judicial review, which were engrossed on 15 October 1987. The respondents to the application, D.P.Q.T., were notified on 19 October. On 21 October Mann J. granted the appellants leave to apply, observing however that the appellants would have to deal with the matter of delay at the hearing.

9

The application came on for hearing before Popplewell J. on 23 November 1988. After a hearing lasting half a day, he dealt with the substantive issue in an ex tempore judgment in which, after reviewing the relevant Regulations, he concluded that D.P.Q.T. had erred in law in making an award based upon the limited number of cows which the appellants would have on Pantdwfn farm at the end of March 1985, without regard to the future. There has been no appeal from that decision. Popplewell J. then heard argument on the question of delay. On 25 November he delivered a second judgment in which he held that, by reason of the delay which had occurred, no order of mandamus or certiorari should be made, and that the relief granted should be limited to a declaration giving effect to his interpretation of the Regulations and stating that D.P.Q.T. had erred in law. The appellants then appealed against the judge's refusal of substantive relief. On 26 May 1989 the Court of Appeal dismissed their appeal, the sole judgment being delivered by Lloyd L.J., with whom Kerr and Butler-Sloss L.JJ. agreed [1989] 1 W.L.R. 1089. The appellants now appeal to their Lordships' House, with leave of the Court of Appeal.

10

I turn first to the relevant legislative provisions relating to delay in matters of judicial review. These are to be found in R.S.C., Ord. 53, r. 4, and in section 31 of the Supreme Court Act 1981. Ord. 53, r. 4, provides as follows:

"(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."

11

Section 31 of the Act of 1981 provides (so far as relevant) as follows:

"(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 — ( a) leave for the making of the application, or ( b) any relief sought on the application, 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."

12

When Order 53 was redrawn in 1977, rule 4(1) then provided that, where there had been undue delay in making an application for judicial review, the court might refuse to grant leave for the making of the application, or any relief sought on the application,

"if, in the opinion of the court, 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."

13

Rule 4(2) then provided that, for an order of certiorari to remove any proceeding for the...

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