R (Zoolife International Ltd) v Secretary of State for Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Mr Justice Silber |
| Judgment Date | 17 December 2007 |
| Neutral Citation | [2007] EWHC 2995 (Admin) |
| Docket Number | Case No: CO/115/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 December 2007 |
[2007] EWHC 2995 (Admin)
MR JUSTICE SILBER
Case No: CO/115/2007
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand,
London, WC2A 2LL
Alan Bates (instructed by Richard Buxton solicitor of Cambridge) for the Claimants
James Maurici (instructed by DEFRA Legal) for the Defendant
The Interested Parties were neither represented nor present.
Hearing date: 20 November 2007
Further written submissions served on 26, 27 and 30 November 2007
The Honourable
I. Introduction
Zoolife International Limited (“the claimants”) seek to challenge the decision of the Secretary of State for Environment, Food and Rural Affairs (who will be referred to as “DEFRA”) contained in a letter dated 21 December 2006 (“the decision letter”) refusing to give effect to the London Aquarium's objections to the nomination of Miss Sue Thornton as the List 1 Inspector for the purposes of a periodic inspection of the London Aquarium pursuant to Zoo Licensing 1981 as amended (“the 1981 Act”).
The owners of the London Aquarium, Miss Sue Thornton, the International Zoo Veterinary Group (“IZVG”) and the London Borough of Lambeth (“Lambeth”) were joined as Interested Parties to the present proceedings but none of them has served an Acknowledgment of Service or played any part in the proceedings.
The claim has been resisted by DEFRA on the grounds first that it is now entirely academic and second (even if these academic issues are for some reason still to be entertained by the Court) that the decision under challenge discloses no arguable errors of public law either in the decision given or in relation to the adequacy of the reasons for that decision. I should add that during the hearing I raised the additional issue of whether I could grant declaratory relief which would effect the Interested Parties and others without them having been served with details of the relief which is now being claimed and which is set out on paragraph 25 below.
Counsel duly submitted very helpful submissions on this point but as I have decided to dismiss this claim for other reasons, it is now unnecessary for me to reach a final view on this issue although I set out my provisional conclusion in paragraph 43B below. This is a rolled-up application and at the outset of the proceedings I gave permission to the claimants to pursue this claim.
II. The Background to this Application and the claim now being made
The 1981 Act requires the inspection and licensing of zoos and this includes aquaria, such as the London Aquarium. This work is undertaken by local authorities which for these purposes include London Boroughs; s1 (3) of the 1981 Act. London Aquarium lies within the administrative area of Lambeth and its licence was extended for a period of 6 years from 24 March 2001 until 24 March 2007.
London Aquarium was also required to have a periodical inspection in accordance with section 10 (3) (b) of the 1981 Act during the third year of this period of licence but the records of DEFRA indicated that this inspection had not taken place. Further as London Aquarium's zoo licence was due to expire on 24 March 2007 and an extension was being sought, Lambeth was required no later than six months before that date to arrange an inspection in accordance with sections 9A and 10 of the 1981 Act.
Because London Aquarium was seeking to extend its existing licence, it was appropriate for Lambeth to arrange an inspection under section 10 (4) whilst also taking account of the considerations required by section 9A (12) which was appropriate for this section. Both these inspections were governed by section 10 (4) of the 1981 Act.
At the heart of this litigation is a dispute about the choice of inspectors and in particular the appointment of Miss Thornton as an Inspector but as I will explain, the inspection of the London Aquarium has now been completed after Miss Thornton was replaced as an Inspector. Under section 10(4) (a) of the 1981 Act, inspections had to be undertaken by no more than three inspectors appointed by the local authority and at least one of them had to be a veterinary surgeon or a veterinary practitioner and this requirement is of importance in the present case. Two inspectors were to be nominated after consultation with the local authority (which in this case was Lambeth) by DEFRA from a list with one inspector coming from Part I of the list, which comprised veterinary surgeons or veterinary practitioners, and the other from Part II, which consisted of those competent to advise on welfare of animals, conservation matters and the management of zoos
Lambeth duly asked DEFRA to nominate two inspectors for the inspection of the London Aquarium. On 29 September 2006, DEFRA consulted Lambeth as it was required to do so by section 10 (4) (a) (ii) of the 1981 Act on the proposed nomination of Miss Sue Thornton as the Part I Inspector and Professor Gordon McGregor-Reid as the Part II Inspector. As Lambeth had no objections to these nominations, DEFRA then wrote to Lambeth formally notifying it of the nominations on 10 October 2006. As is the practice, DEFRA wrote letters to the two nominated inspectors confirming they had been nominated for inspection and sending a copy of those letters to Lambeth.
It was the responsibility of Lambeth to appoint DEFRA's nominated inspectors and the local authority inspectors before notifying the London Aquarium of the names of persons appointed to inspect the Zoo. Section 10 (2) of the 1981 Act requires the local authority after consultation with the Zoo (which in this case was the London Aquarium) to give the operator of that Zoo at least 28 days notice of the dates of the proposed inspections.
There is some dispute as to when London Aquarium became aware of the inspection team but it would seem that it was on or shortly after 15 October 2006 but nothing turns on the exact date in resolving the claimants' challenge.
III. The Claimants
It is now appropriate to explain the role of the claimants who conduct a veterinary practice specialising in zoo animals with particular emphasis on aquatic animals. At the time of the events with which this application was concerned the director and principal veterinary surgeon of the claimants was Mr Marc Geach, who also acted as a veterinary consultant to London Aquarium under a contract between London Aquarium and the claimants. The nature of the services provided by the claimants to the London Aquarium was not that of a typical veterinary practice as it also provided a wider range of services relating to veterinary nutritional consultancy, specialist manufacturer, laboratory and diagnosis to different aquaria both within and outside the United Kingdom. This work enabled Mr Geach to pursue his interests in research and development activity in connection with new drugs and nutritional formulations to improve the welfare of aquatic animals which was an interest that he had previously pursued while working as an employee of Pfizer's Animal Health Division.
For the purposes of the present application, the claimants attach substantial importance to five aspects of the work which they conducted at the London Aquarium. The first was that the veterinary and nutritional programmes which the claimants provided at the London Aquarium used a number of products, medicines, diets, therapeutic regimes, techniques and other specialist methods which had been or were being developed by Mr Geach as a result of many years of research, study and experience. The claimants regarded that information as constituting valuable trade secrets belonging to them and the publication of much of it in scientific and veterinary journals is pending. Moreover there were also various patents which the claimants had obtained while others were pending and which related to aquatic biotechnology applicable to animal medicine, healthcare and nutrition but many of the therapies, drugs and formulations, which Mr Geach was employing at the London Aquarium were still in the developmental stage without patents or other protection having been sought.
The second matter to which the claimants attach significance was that the London Aquarium was not simply a place in which it used its specialist knowledge and product but it was also the location of much of their ongoing development work and research work. This factor, according to the claimants was of importance to the London Aquarium in its desire to remain licensed under the Act since licences may now be granted or renewed only where the zoo or aquarium is making a demonstrable contribution to research and conservation. Much of this information, it is said by the claimants, related to the novel medicines techniques and methods which the claimants were adopting and which would be shown on the records of the London Aquarium. In consequence, it is contended by the claimants that any person knowledgeable in aquatic veterinary medicine or nutrition, who inspected the records of the London Aquarium, would have discovered those trade secrets and other commercially confidential information concerning the work of the claimants which it is contended by the claimants was very much at the cutting edge of research in those areas.
The third aspect of the claimants' work,...
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