Kilhey Court Hotels Ltd v Wigan Metropolitan Borough Council

MR JUSTICE FORBES: This is an appeal by way of case stated from the decision of District Judge Ward at Wigan Magistrates Court on 27 February 2004 when he convicted the Appellant of ten offences under food safety legislation. The offences in question are set out in paragraph 2 of the case stated ("the Case") and concerned the state of the kitchen at the Appellant's Kilhey Court Hotel on 2 April 2002.

The primary issue raised by the Appellant in this appeal is whether the District Judge was correct in law to conclude that in respect of the default he found with regard to the conduct of Mr Nicholls (the head of the Appellant's Health and Safety) the Appellant could not rely on or had failed to establish the statutory "due diligence" defence (as to which, see below) that is provided by section 21(1) of the Food Safety Act 1990 (hereafter referred to as "the 1990 Act"), because it had not named Mr Nicholls in the notice that it had served pursuant to section 21(5) of the 1990 Act.

The Appellant's primary case is that the District Judge was wrong in law to hold that the Appellant could not rely on and/or had failed to establish the due diligence defence for that reason. Further, it is submitted that, if the Appellant had been permitted to rely on the due diligence defence in respect of Mr Nicholls' defaulting conduct, then the findings of fact of the District Judge could not reasonably lead to any other conclusion than that the Appellant had established the statutory due diligence defence on the balance of probability.

As to the latter submission, it is important to note that the Respondent had made the following concession. I refer to paragraph 10(e) of the written skeleton argument prepared on behalf of the Respondent by Mr King, in which he says this:

In the course of the hearing before me, Mr King, as he was entitled to, sought to qualify his concession to the effect that, if the matter had been before the District Judge in the way suggested as a result of a late application to make Mr Nicholls part of the due diligence defence, the Prosecution would have sought to address further submissions, make further representations and possibly call further evidence to explore the actual relationship of Mr Nicholls to the Appellant company and his responsibility for the matters that gave rise to this particular set of alleged offences. As to that aspect of the matter, having considered the District Judge's findings of fact, I am satisfied that all the matters that Mr King identified as being worthy of further exploration were either not in issue before the Magistrate, or (as is clear from the findings of fact) had been sufficiently and fully explored in any event.

So it is that I have come to the conclusion that Mr King's concession on behalf of the Respondent, to which I have just referred, is not only entirely correct, having regard to the findings of fact in this case, but it does not require qualification in the way that he suggested.

I now turn to the facts, the relevant law and the District Judge's opinion in this case.

The District Judge found as a fact that the allegations made in Informations (1) and (2) (ie food failing to comply with food safety requirements contrary to section 8 of the 1990 Act) and Informations (3) to (10) (ie breaches of the relevant food hygiene regulations concerning cleanliness) were made out. The findings of fact to that effect are set out in paragraph 3(a) of the Case. In summary, the District Judge found that the two section 8 offences were made out, in that a roast potato had mould present and a piece of cheese with cranberries also had mould present. The allegations under the hygiene regulations, of which there were eight, were also made out. Those allegations related to the lack of cleanliness of various items of kitchen equipment.

In the event, the Appellant did not contest the factual allegations with regard to the mould on the two items of food or the lack of cleanliness of the kitchen equipment. The issue at trial was whether the Appellant could establish that it had exercised all reasonable precautions and "all due diligence" to prevent the commission of the offences. In other words, the Appellant invoked the statutory defence available to it under section 21(1) of the 1990 Act.

Section 21(1) of the 1990 Act provides as follows:

Section 21(5) provides as follows:

It is accepted by the Appellant that the statutory defence of "due diligence" presupposes the commission of an offence: see R v Bow Street Magistrates Court, ex parte Cow and Gate Nutrition plc (1994) 159 JP 120. It is also accepted by the Appellant that the burden of proving this particular defence lies upon the Defendant on the balance of probabilities.

The Appellant's case was that it had taken all reasonable precautions and that it had exercised all due diligence to prevent the commission of the offences in question. The system that it had in place was said to be both comprehensive and sophisticated. There was a properly implemented procedures manual, which took into account all matters germane to hygiene and food safety; the selection and training of staff had been at all times perfectly adequate; the general manager and head chef at the hotel were experienced and fully trained and the system involved a chain of delegated responsibility from the Board down to the general manager of the hotel and its staff, including the head chef. The Appellant is a public company of the highest reputation. It is not some substandard organisation running an establishment of doubtful hygiene and safety.

It was also the Appellant's contention that, not only did it have a perfectly adequate system and exemplary selection and training of staff procedures, but also that there were proper procedures in place for the checking and supervision of senior and junior employees. The evidence was that this was primarily the responsibility of an independent consultancy in food safety matters, Hygiene Monitoring Services Ltd. Hygiene Monitoring Services were contractually obliged to provide twice-yearly food safety audits for the Appellant, and the use of a wall chart which acted as a managerial check list for the Appellant.

In short, the Appellant contended that it had made out the statutory due diligence defence on the balance of probabilities. The Appellant contended that it had demonstrated that it had taken all reasonable care, had not been negligent in its approach to food safety and had done everything it could reasonably be expected to do to avoid the commission of the offences alleged in the case: see Tesco Ltd v. Nattrass [1972] AC 153, at 194C to H and 197G to 198C, and 199D to E. See also Bilon v. W.H. Smith Trading Ltd (2001) 165 JP 701 and 704B to F. It was also an important part of the Appellant's due diligence defence that the unsatisfactory state of the kitchen on the day in question had been due to the fault of the general manager, Mr Bullows, and the head chef, Mr Kenyon, at the Kilhey Court Hotel. In accordance with the provisions of section 21(5) of the 1990 Act, the Appellant set out that information in a notice served pursuant to that subsection. Although the notice had been served late, the District Judge gave leave to the Appellant at a pre-trial hearing to rely upon the matters specified in the notice.

The Appellant contended at trial that despite its comprehensive system and procedures, the careful selection and training of these two particular employees and their undoubted experience, it had been the two employees in question who had caused the actual state of affairs to occur in the kitchens at the Kilhey Court Hotel which had led to the commission of the offences in question. It was therefore submitted that the offences were not the Appellant's fault, that the matters had occurred despite the Appellant's best efforts and that the due diligence defence had been made out.

On behalf of the Appellant, Mr Goulding submitted that it is clear from his findings of fact and conclusions, as set out in the Case, that the District Judge had accepted the Appellant's submissions, with the important exception that he went on to find that after 25 March 2002 the fault lay not only with Mr Bullows and Mr Kenyon, but also with Mr Nicholls.

As is set out in the District Judge's findings of fact at paragraphs 3(o) and 3(p) of the Case, Mr Nicholls had been present at the hotel on 25 March 2002 for a different and unrelated purpose. However, whilst he was at the hotel Mr Nicholls had the state of the kitchen, which was by then far below the standard expected, drawn to his attention. He addressed the sous chef and Mr Bullows, the manager, and pointed out clearly to them the shortcomings in the cleanliness of the kitchen. His conversation with Mr Bullows lasted approximately half an hour. During the conversation, Mr Nicholls told Mr Bullows what was required to be done to bring the kitchen up to a satisfactory standard and pointed out individual items that required attention. He instructed the general manager to order a deep clean, and he gave him the telephone number of a deep cleaning company to be instructed to carry out that task.

Mr Goulding submitted that the District Judge, both in his findings of fact (see paragraphs 3(c) to 3(h) of the Case) and in his opinion (see paragraph 7(a) of the Case), found that the Appellant had perfectly adequate systems in place. He also found as a fact that the Appellant had created a hierarchy from Board level to inferior staff in its hotel, which included a system of supervision and checking. The selection and training of staff was, in the view of the District Judge, perfectly adequate, and he also formed the view that Mr Bullows and Mr Kenyon were fully trained and conversant with their responsibilities.

I accept Mr Goulding's submissions that the District Judge found that the main fault for the condition of the kitchen lay with Mr Kenyon and Mr Bullows, for not positively doing something about what had happened in the kitchen: see paragraph 7(b) of the Case. They were fully trained, and they should have known what to do.

However, at paragraph 7(c) of the Case, the District Judge reiterated his findings of fact regarding Mr Nicholls' actions on discovering the state of the kitchens on 25 March 2002 and went on to express the opinion that, after 25 March, Mr Nicholls should have taken more direct action himself, rather than leave it to Mr Bullows and Mr Kenyon, who by that time had already shown shortcomings in their ability to run the hotel. In other words, the District Judge formed the view on the evidence, as he was entitled to, that Mr Nicholls should not have entrusted the necessary remedial action to members of staff who had by then shown themselves to be inadequate in their control or supervision of the kitchen, but should have taken further proactive steps himself to make sure that his instructions had been properly carried out.

At paragraph 7(d) of the Case, the District Judge went on to state that the Appellant had been badly let down by its employees. The District judge acknowledged that in general the Appellant had very good procedure manuals and had taken other sufficient steps. However, he pointed out that it was for the Appellant to prove that it had exercised all due diligence and had taken all reasonable precautions. In the event, the District Judge came to the conclusion, as set out in paragraph 7(e) of the Case, that the Appellant had failed to make out the defence of taking all reasonable precautions and exercising all due diligence pursuant to section 21(1) of the 1990 Act, because Mr Nicholls did not take personal charge of overseeing the kitchen after he had seen it in its poor state on 25 March 2002. The District Judge took the view that Mr Nicholls' failure to do more personally after 25 March 2002 was a failure to take reasonable precautions, which should have been taken. The District Judge went on to find that the Appellant was responsible for Mr Nicholls's actions: see paragraph 7(f) of the Case.

It is accepted by the Appellant that this latter proposition is correct in law. Mr Goulding acknowledged that the principal is responsible for the actions of all its employees in the context of strict liability offences such as the ones that form the subject matter of this case. However, it is important to note that the District Judge also found that Mr Nicholls was not part of the "brains" or the "controlling mind and will" of the Appellant: see paragraphs 3(d) and 7(f) of the Case. Although Mr Nicholls was a senior officer of the Appellant, he was nevertheless an employee and was therefore "another person" for the purposes of the "due diligence" defence pursuant to section 21(5) of the 1990 Act. Accordingly, the Appellant would have escaped criminal liability for Mr Nicholls's conduct in the context of this case if it had proved its due diligence defence in such a way as to include the defaulting conduct of Mr Nicholls, as well as that of Mr Bullows and Mr Kenyon.

The District Judge went on to state that the Appellant could not avoid responsibility for its actions, unless it could show that it had exercised all due diligence and taken all reasonable precautions and, importantly, that it had given the appropriate notice under section 21(5) in respect of the default of Mr Nicholls, as one of the other persons responsible for the offences having been committed. The District Judge went on to point out that the Appellant had not named Mr Nicholls under section 21(5) but had only named Mr Bullows and Mr Kenyon.

In paragraph 7(f) of the Case, the District Judge stated that the Appellant was able to blame Mr Bullows and Mr Kenyon as part of its defence because it had named them in its due diligence notice. On behalf of the Appellant, Mr Goulding pointed out that such had been the Appellant's case throughout; that those were the two individuals who were responsible for what had taken place in the kitchen. Mr Goulding also pointed out that the District Judge did not dissent from the view that the Appellant had established the defence of due diligence in respect of the actions and/or defaults of Mr Bullows and Mr Kenyon. However, as I have already stated, the District Judge went on in paragraph 4(f) of the Case to find that the condition of the kitchen as at 2 April 2002, which was the relevant date of the various alleged offences, had been caused by the act or default of Mr Bullows, Mr Kenyon and, contrary to the way the defence had been presented, Mr Nicholls.

It was the District Judge's view that the Appellant could only rely on its "due diligence" defence to the extent that it had given the notice required by section 21(5) of the 1990 Act in respect of the actions or defaults of others and, because no act or default of Mr Nicholls had been included in the notice given, the District Judge found that the defence of due diligence had not been established. The question posed by the District Judge in the Case is therefore as follows:

Mr Goulding submitted that the Appellant should not be criminally responsible for the actions of an employee, simply because it has failed to name that employee in a notice pursuant to section 21(5) of the 1990 Act, if the Defendant is not claiming as part of its defence that the offences in question were due to the actions or defaults of that employee, provided always that the Defendant is able to prove that otherwise it has taken all reasonable precautions and had exercised all due diligence.

Mr Goulding submitted that on the findings of fact of the District Judge, at paragraphs 3(o) to (p) and 7(a) of the Case, it could not reasonably be held that the Appellant had not done everything that it could reasonably be expected to do to avoid the commission of the offences. In effect, this latter proposition was conceded by the Respondent: see the concession made by Mr King, to which I referred at the outset of this judgment. Mr Goulding submitted that the notice provisions under section 21(5) only come into effect if the defence under section 21(1) involves an allegation that it was another person's act or default that caused the commission of the offence. He contended that, in this case, it had been no part of the Appellant's defence under section 21(1) that it was Mr Nicholls's act or default that had caused the commission of the offences wholly or in part. Rather, it had been the Appellant's case that the commission of the offences was entirely due to the act or default of Mr Kenyon and Mr Bullows, and hence had named both of those gentlemen in the section 21(5) notice that had been served.

Mr Goulding submitted that given that, since the Appellant's defence at trial involved no allegation of default against Mr Nicholls, there was therefore no obligation on the Appellant to name him in its section 21(5) notice. At the outset of the trial, that undoubtedly was correct. It was no part of the Appellant's case that Mr Nicholls had been in default in some way. It was very much the Appellant's case that Mr Nicholls had done everything that could reasonably be expected of him. In those circumstances, it is clear from the terms of section 21(5) that the Appellant was not under any obligation to name Mr Nicholls in its original section 21(5) notice.

However, that was not the end of the matter, because it was eventually found as a fact by the District Judge, as I have already indicated, that Mr Nicholls's act or default had been responsible at least in part for the commission of the offences: see paragraphs 3(a) to (b) and 7(c) to (e) of the Case. Mr Goulding submitted that this did not mean that Mr Nicholls should have been named in the Appellant's section 21(5) notice. Whilst I accept that that was so at the outset of the case, once it became clear that the District Judge was minded to attribute fault to Mr Nicholls as being a partial cause for the commission of the alleged offences, it seems to me that consideration should then have been given to seeking to include Mr Nicholls in the due diligence defence. That could have been done by applying to the District Judge under section 21(5) for leave to rely on Mr Nicholls' identified shortcomings as being the act or default of another person for which the Defendant should not be held responsible.

As I have already indicated, it was Mr Goulding's submission that there would only have been an obligation to name Mr Nicholls in a section 21(5) notice if the Appellant's defence involved the allegation that Mr Nicholls' act or default had led to the commission of the offences. Although that was no part of the Appellant's original case, there did come a stage in the trial (and I will come to the circumstances in which this arose) in which it became apparent that the District Judge was minded to make a finding that Mr Nicholls' act or default had in part led to the commission of the offences. It was at that stage that consideration should have been given to the need to identify Mr Nicholls as one of the other persons responsible for the commission of the offences; in other words, that Mr Nicholls' act or default was partly responsible for the commission of the offences, in addition to the acts and defaults of Mr Kenyon and Mr Bullows.

Mr Goulding submitted that it is not a prerequisite for the statutory "due diligence" defence to succeed or for it to be relied on that every person connected in some way to the general factual situation that results in a prosecution to be named in a section 21(5) notice in case some blame might be attached to them. That may well be so. However, once it became clear in this case that significant blame might be attached to Mr Nicholls, then, as it seems to me, different considerations do arise. In the absence of Mr Nicholls being included in the particulars of the due diligence defence, it was open to the District Judge to come to the conclusion that the Appellant's due diligence defence had not been made out, because one important person, who had been partly responsible for the commission of the offences in question and for whose acts the Appellant was responsible, had not been specified as another person to whom blame attached, and for whom, by reason of the due diligence of the Appellant, the Appellant should not be held responsible.

On behalf of the Respondent, Mr King submitted that the District Judge was entitled to conclude that the commission of the offence was due at least in part to the act or default of another person who had not been named in the section 21(5) notice, i.e. Mr Nicholls. For the reasons already given, I agree with that submission. Mr King went on to submit that, in those circumstances, the Appellant cannot argue, despite its decision not to make any allegations of fault against Mr Nicholls, that it is nevertheless entitled to rely on his act or default as part of its "due diligence" defence, by virtue of the District Judge having decided that Mr Nicholls was at fault, on the basis of his assessment of the evidence, rather than on the basis of any specific submissions or allegations by the Defendant.

As it seems to me, that is not quite how the case was put on behalf of the Appellant. However, I am satisfied that the District Judge was entitled to come to the conclusion on the evidence that part of the responsibility for the commission of the offences in question was due to the act or default of Mr Nicholls, that Mr Nicholls was an employee for whom the Appellant was responsible and that, because Mr Nicholls had not been specified as being another person in respect of whose acts or defaults the Appellant should not be blamed, the due diligence defence under subsection (1) on which the Appellant did rely had not been made out in full. As a result, the District Judge was right (as it seems to me) to convict the Defendants on the state of the evidence and in the circumstances then prevailing. Accordingly, I would answer the question posed in the affirmative, and, to that extent, I accept Mr King's submissions on behalf of the Respondent.

However, the matter not does not end there. According to Mr King's skeleton argument, during the course of the proceedings, the District Judge specifically mentioned his provisional view with regard to the involvement and default of Mr Nicholls. However, despite the District Judge having done so, no application was made by or on behalf of the Appellant to rely on Mr Nicholls' act or default as part of its due diligence defence. Mr King pointed out that it would have been open to the Appellant, even at that late stage, to apply for leave to be entitled to rely on the due diligence defence in respect of the act or default on the part of Mr Nicholls that the District Judge was indicating he was minded to find. Mr King emphasised that the Appellant had made no such application and, therefore, submitted that it was the author of its own misfortune. Although the Appellant may now seek to brand this as a technicality, the fact is that the way the matter proceeded before the District Judge left the District Judge with no alternative but to convict the Appellant in the light of his findings of fact.

However, when I came to consider the supplemental skeleton argument put forward on behalf of the Appellant with regard to this aspect of the matter, it became apparent that the position is not quite as straightforward as suggested by Mr King. According to Mr Goulding's supplemental skeleton, what occurred was this:

At paragraph 3(d) of the Case, the District Judge found as a fact that Mr Nicholls was not part of the "controlling will and mind". It seems clear to me that Mr Goulding misunderstand what the District Judge was driving at when he posed the question to which Mr Goulding refers. It may be that at such a late stage in what had obviously been a lengthy and detailed hearing, Mr Goulding can be forgiven for misunderstanding what was being suggested to him. However, that he did misunderstand the position seems to me to be obvious. The District Judge was plainly asking Mr Goulding to deal with the likely finding that he was going to make with regard to Mr Nicholls's default or failure to act after 25 March. Mr Goulding thought that the District Judge's question was directed only at the controlling will and mind aspect of the case, and was satisfied that that had been fully dealt with, and answered accordingly.

What the District Judge had in mind, however, was the finding of fact that he then went on to make, namely, that Mr Nicholls had acted or failed to act in such a way that he was partly responsible for the commission of the offences in question, and the District Judge was plainly concerned about the fact that, if that was so, Mr Nicholls's acts and defaults had not been specified by the Defence as the acts of another person for whom the Defence should not be held responsible in the light of their due diligence defence.

In the event, the District Judge went on to make the finding to which I have already referred. In the course of the hearing before me, Mr Goulding very properly accepted that he must have misunderstood the position and, in any event, that he had failed to deal with it in a way that was plainly appropriate, namely, by making an application for leave to include Mr Nicholls's actions and defaults in the due diligence defence as an alternative to the primary case upon which the Appellant had relied throughout.

In my view, therefore, I think it can fairly be said that, although the District Judge did make the finding that he was obliged to do having regard to all his other findings of fact, the outcome was not an entirely satisfactory or just one. It is perfectly clear that if the acts and defaults of Mr Nicholls had formed part of the Appellant's due diligence defence then the District Judge would have found the defence made out and would have dismissed all the charges. However, Mr Goulding's failure to make the application meant that that course was not open to the District Judge. As a result, a reputable company has been convicted of various offences with regard to the state of its kitchens, in circumstances where the perception will be that the company was unable to make good a defence of due diligence. These matters are in the public domain and are obviously a matter of great concern to the Appellant company. The Appellant's excellent reputation is a valuable asset and undoubtedly these convictions will damage that reputation.

The injustice that flows from what happened is amply demonstrated by the fact that all the systems and procedures that the Appellant relied upon were gone into with great care and at considerable length. As a result, the Appellant's systems and procedures were entirely exonerated. The commission of the offences was due to those for whom the Appellant should not have been held to be responsible because of the due diligence that the Appellant had displayed in managing its food hygiene and safety responsibilities. If Mr Nicholls had been included in the necessary particulars, the Defendants would have been acquitted. As a result of a misunderstanding on the part of Counsel, the opportunity was lost to prevent that happening, albeit at a late stage in the proceedings, with the result that the Appellant has now been convicted of offences which adversely affect its reputation. Such a state of affairs is far from satisfactory. It is always the task of the Courts to achieve justice within the law.

So it was that, as I became more aware of the essential nature of the problem with which I was faced, I sought assistance from the Bar as to whether I had any power to consider an application for leave to rely upon the actions and defaults of Mr Nicholls as the acts and defaults of another person for whom the Appellant was not liable and, therefore, was entitled to rely upon as part of its "due diligence" defence.

My attention was then drawn to section 28A of the Supreme Court Act 1981, which, so far as material is in the following terms:

Mr Goulding relied on the very wide wording of subsection (3) and submitted that it was open to me to entertain an application that the Appellant be granted leave to rely on the acts and defaults of Mr Nicholls as part of their due diligence defence pursuant to subsections 21(1) and (5) of the 1990 Act.

On behalf of the Respondents, Mr King very fairly accepted that I do have the power under section 28A to entertain such an application, and, if persuaded that it is right to do so, to grant the appropriate leave. However, Mr King submitted that I should not grant leave in the circumstances of this case. He relied on matters such as the extreme lateness of the application and the fact that the application seeks to rely on matters which conflict with the way the Appellant has presented its case throughout. Mr King also understandably attached importance to the fact that the Appellant had been given the opportunity to make an appropriate application by the District Judge but had failed to take it. However, as I have already stated, it was because Mr Goulding misunderstood what was being suggested by the District Judge that he failed to make the appplication. The result was that the District Judge went on and dealt with the matter in the way that he did. Mr King suggested that one should not assume that the District Judge would have granted leave if the application had been made to him. In my view, it is very likely that he would have granted leave. Mr King also submitted that if the District Judge had granted leave then the Prosecution would have sought to reopen various matters relating to Mr Nicholls's precise role and actions. As to the latter aspect of the matter, for the reasons given earlier in this judgment, I am satisfied that any such application by the Prosecution would not have come to anything. There was no issue between the parties as to Mr Nicholls's position in the company or as to his responsibilities or as to what he had done or had not done after the condition of the kitchen had come to his attention.

In those circumstances, as it seems to me, it is appropriate to grant the leave sought by the Appellant in this case.

My main reason for coming to that conclusion is that it is clear from the District Judge's findings of fact that if Mr Nicholls's acts and defaults had formed part of the particularised material, then the Appellant's "due diligence" defence would have been made out. In my view, justice is not well served to uphold convictions of this importance against a highly respected public company in circumstances where, had the matter been properly dealt with, it would have made out the defence that was available to it and which would have succeeded had this technical slip not occurred. For what it is worth, I am satisfied that the District Judge would have granted the application, although made late in the day. I have little doubt that is what he was hinting at when he raised the question with Mr Goulding in the course of his final submissions. In my judgment, although it is very late in the day, it is appropriate to grant leave, and I do so.

Having granted leave, I simply revisit the findings of fact of the District Judge. I commend the care and detail with which he has set out his findings of fact in the Case and which I have endeavoured to summarise earlier in this judgment. Having regard to those findings of fact, I am satisfied that, with leave granted, the "due diligence" is made out. On that basis, and on that basis alone, therefore, this appeal is allowed and the conviction is quashed. In all the circumstances, it is not a case where I think it appropriate to remit the matter to the District Judge with a direction to acquit.

MR GOULDING: My Lord, there are costs applications.

MR JUSTICE FORBES: Yes. I rather think it would probably be better if you sat down and Mr King made the application, because I think that is the way it is likely to be.

MR GOULDING: Might I just preface the matter by saying that I would be making an application for the Appellant's costs of the appeal, but there is also the question of costs at the court below, because clearly, at the end of the trial, there were sentence and costs ordered against the Appellant. That obviously will fall away now, and the fine and the costs, if paid.

MR JUSTICE FORBES: I am not sure that it would. Why should it fall away?

MR GOULDING: Because there has now been an acquittal on the merits, and if that had happened at the trial.

MR JUSTICE FORBES: It would have been open to the District Judge to entertain an application for costs by the Prosecution in spite of the acquittal if, late in the day, notwithstanding the way in which the case had been run, the Appellant picks up the hint and does what should have been done in the way I have indicated.

MR GOULDING: But it would not have made any material difference to the costs of the trial. We were there for four days in any event.

MR JUSTICE FORBES: But you have run the case, as you were emphasising, entirely on the basis that Mr Nicholls was not to blame in any way at all, and right at the end of the day, what you would have had to do to save yourself, as I have indicated in this extempore judgment, was to pick up the hint and apply to add Mr Nicholls's acts and defaults, which you had never accepted.

MR GOULDING: No; it was never accepted.

MR JUSTICE FORBES: But which it should have been plain to you were going to be found against you, and rely on those as part of your statutory defence; and you would have got home on it. Much time would have been saved if you had.

MR GOULDING: Not at the trial, it would not.

MR JUSTICE FORBES: Do you not think so?

MR GOULDING: No, it would not because it occupied, I would say, ten minutes of the time of the trial.

MR JUSTICE FORBES: I see.

MR GOULDING: And the trial was conducted and it lasted four days, and the vast bulk of the evidence was directed towards the due diligence defence, and indeed there were bundles of documents like this and food safety manuals.

MR JUSTICE FORBES: I see. Yes, very well.

MR GOULDING: Under section 16 of the Prosecution of Offences Act, the usual order would be for an acquitted Defendant --

MR JUSTICE FORBES: I quite accept that it is usual.

MR GOULDING: -- to have a Defendant's costs order.

MR JUSTICE FORBES: Yes.

MR GOULDING: And that is what has happened as of the end of the Magistrates' Court proceedings. I accept that different considerations apply now.

MR JUSTICE FORBES: What are you saying I should do about the Magistrates costs?

MR GOULDING: A Defendant's costs order in favour of the Appellants, under section 16 of the Prosecution of Offences Act.

MR JUSTICE FORBES: Does that come out of public funds?

MR GOULDING: Yes. They were taken to court; they should have been acquitted, and they have been; and they should have those costs.

MR JUSTICE FORBES: Of course, it is going back a few years when I had to deal with that sort of thing on a regular basis, but my recollection is that it is still open to the Court to refuse that.

MR GOULDING: If they bought it on themselves was one; but this would not be that sort of case.

MR JUSTICE FORBES: Yes.

MR GOULDING: The practice directions that have been in force probably over the past decade, and I know that they have been changed again recently, is that an order for costs should normally follow that event. In the event of your finding, there has been an acquittal, if the application had been made at the trial, a Defendant's cost order would certainly have been made. We were not asking for costs against the Prosecution.

MR JUSTICE FORBES: No. All right.

MR GOULDING: It is a Defendant's costs order.

MR JUSTICE FORBES: What about the costs in the appeal?

MR GOULDING: Costs in the appeal, I clearly see that there are different considerations, given the way that the appeal has gone today. It is still, in my submission, although a misunderstanding had occurred, it was a difficult situation, and it was one which obviously has necessitated an appeal. But the conviction was on any view based on a technicality once the case had come back from the District Judge.

MR JUSTICE FORBES: Because I have found that the District Judge did not err. He was never asked to.

MR GOULDING: No. My Lord, you have found that, and it does not perhaps take matters further for me to repeat what I said in submissions; that it was open to him to have been more direct about the question if the hint had been taken, if hint it was. Or indeed, he could have given leave himself although during submissions obviously he considered that would not have been possible.

MR JUSTICE FORBES: You have my sympathy to this extent; that if I had been sitting as the District Judge, and if it had become apparent to me that I was going to make adverse findings against Mr Nicholls, I would have made that clear to give you the opportunity to apply to amend.

MR GOULDING: It was not amended.

MR JUSTICE FORBES: And if you did not pick up the hint, I would have pretty well told you to make the application. But that is me. Nothing I have said should be regarded as in any way critical of the District Judge.

MR GOULDING: Not at all. I would not want that for one moment.

MR JUSTICE FORBES: Let me hear what Mr King has to say. What about the costs below, Mr King? Was there an order for costs in your favour at the court below?

MR KING: There was.

MR JUSTICE FORBES: There was.

MR KING: In respect of the appeal, my Lord.

MR JUSTICE FORBES: I need not trouble you on the costs of the appeal. What do you suggest about the costs below?

MR KING: The prosecution was brought by a public authority.

MR JUSTICE FORBES: Yes.

MR KING: Which will be in the same position as the Crown Prosecution Service had it been brought by the criminal authorities, and I am forced to the view that Mr Goulding has just expressed, which is that the conviction having been quashed, it is most unlikely that there would have been an order at the lower court for the prosecution costs.

MR JUSTICE FORBES: The odd thing about this one, though, is that I have said that the conviction in the circumstances that faced the District Judge was correct. Because it is accepted that I can actually look at the question of leave, I can actually go on and grant leave, if it is appropriate to do so, and, in the light of this District Judge's very careful findings of fact, I come to the conclusion that the convictions can be quashed because the defence is made out, and so it is not quite a case of my saying that this should have been an acquittal.

MR KING: No, my Lord. Exactly. I think, extending that, we have already looked at the very wide ambit of section 28A of the Supreme Court Act, which allows you to vary certain orders made by the Magistrates Court, but you can still confirm other orders that were made. Your decision was based on the justice to the Appellants, doing justice to the Appellants, and, in your judgment, my Lord, you referred to the important fact that the Appellants had been cleared of offences which obviously would stigmatise an organisation of their nature. But to rescind the order for costs when you have already indicated that the conviction was properly recorded, in my respectful submission, would be taking the matter too far.

MR JUSTICE FORBES: I am inclined to agree with you. Mr Goulding, this is not quite the same sort of case that would exist if I were quashing the conviction on the basis that you should never have been convicted in the first place. The reason you were convicted was because it was not open to the District Judge to do otherwise, on my analysis of the case, and the matter has only been put right because you have come here.

In those circumstances, unless you can say to me that there is going to be a fundamental error of law in my approach, I think it is a case where you must bear the costs below and above. Not only that, I am not prepared to rescind the order for costs made against you in the court below.

MR GOULDING: I would say that it would be manifestly unfair, if that would amount to a matter of law.

MR JUSTICE FORBES: If you had applied to the District Judge and he had turned you down and had then gone on and convicted you, you would have had to come here, and I would have said that the District Judge exercised his discretion wrongly here and he should have granted leave. That would be a different matter.

MR GOULDING: What in fact you are saying, my Lord, is that, but for leave, there would have been an acquittal. I am looking at the costs below. There is now an acquitted Defendant before the Court, and the Prosecution of Offences Act states that costs would normally be the state of affairs.

MR JUSTICE FORBES: I am saying this is not a normal state of affairs.

MR GOULDING: But I would submit that it is no different. It was a technicality, my Lord, but for the piece of paper or the notice, that the due diligence defence was established at the trial. The Appellant should not be penalised in costs for that.

MR JUSTICE FORBES: It was not a technicality. You can stigmatise it as that, but the position was, on my analysis, that it was not open to the District Judge in the light of his findings of fact with regard to Mr Nicholls to find the defence of due diligence proved. The reason that situation arose was, for whatever reason, that Mr Nicholls was not included either at the beginning or later in the due diligence defence. I use that by way of shorthand. The responsibility for that is the Appellant's. In other words, until the matter got to me and until we started to look at section 28A, there seemed to be no way out of it.

MR GOULDING: But once that has been established, that there is, one looks at how costs were incurred at first instance, and it was defended substantially on the basis of due diligence.

MR JUSTICE FORBES: Yes.

MR GOULDING: And to deprive them of costs now in respect of running that defence, now acquitted, in my submission goes against the intention of Parliament when it made the Prosecution of Offences Act.

MR JUSTICE FORBES: The normal situation.

MR GOULDING: But I would submit that this is a normal situation insofar as the costs below are concerned, because here we have a situation where the Defendant is now acquitted of the Informations, on the merits, albeit that was achieved by the technical granting of leave.

MR JUSTICE FORBES: Yes.

MR GOULDING: It is won substantially on the merits, not on a technicality. That is what the vast bulk of its costs went to, and it should not be penalised for those costs below. It should have its costs below by way of a Defendant's costs order, which would be taxed by the court in the normal way, and certainly should not be penalised by paying the Prosecution costs of defending strict liability offences on the basis of a due diligence case. One can go into the history of the matter, but it probably would not assist as to the background to these cases and the representations that are made. But that is the position.

MR JUSTICE FORBES: Yes. I am afraid you have not persuaded me, Mr Goulding. I quite accept that, in the normal case, the Defendant would be entitled to a Defendant's costs order.

MR GOULDING: Yes, it would, my Lord.

MR JUSTICE FORBES: I do not regard this as a normal case.

MR GOULDING: My Lord, certainly it should not have to bear the costs of the Prosecution for the proceedings below.

MR JUSTICE FORBES: As things stood before the Magistrates, this was a successful prosecution. It is through no default on the part of the Respondents that that situation arose.

In other words, it was not as a result of some important information not being released, or something of that sort.

No criticism can be attached whatsoever to the Respondents for having brought the prosecution and for having succeeded before the Magistrate. It has only been possible to unravel matters as a result of you coming here.

MR GOULDING: Yes. I note that you make no criticism of that.

MR JUSTICE FORBES: I am not persuaded, Mr Goulding. In my view, the costs of the case below are to remain as ordered by the Magistrate. This is a very unusual set of circumstances. It is important to realise that I have managed to arrive at an answer which deals with the justice of the case and has resulted in a quashing of the convictions. However, I have also made it clear that, on the evidence that was before him and on the findings that he made, the District Judge was right to convict the Defendants.

It is only because it is accepted that I have power under section 28A of the Supreme Court Act 1981 that I have been able to revisit the question of leave under section 21(5) of the 1990 Act, and by that route have been able to arrive at a conclusion which enables me to quash the convictions, but in circumstances where I have also made it clear that the original conviction was, on matters as they stood before the Magistrate, perfectly correct.

In those circumstances, it seems to me that the normal order is not appropriate. I therefore think that the District Judge's original orders as to costs shall stand, and that the Appellants are to pay the Respondent's cost of this appeal, to be assessed on the standard basis, if not agreed.

MR KING: I am obliged, my lord.

MR JUSTICE FORBES: Thank you both very much.