Royal Courts of Justice,
Strand, London WC2A 2LL
Before:
MR. JUSTICE CRANE
BETWEEN:
NORTHERN FOODS PLC
Claimant
and
THE DEPARTMENT FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS
Defendants
and
THE MELTON MOWBRAY PORK PIE ASSOCIATION
Interested Party
(Transcript of the Handed Down Judgment of
Smith Bernal WordWave Limited
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Mr. Mark Hoskins (instructed by Walker Morris) appeared for the Claimant.
Miss Wendy Outhwaite (instructed by the Treasury Solicitor) appeared for the Defendant.
Mr. Michael Edenborough (instructed by Harvey Ingram LLP) appeared for the Interested Party.
Judgment
Mr Justice Crane:
General
The Claimant, Northern Foods PLC, seeks to challenge the decision of the Defendant, the Department of the Environment, Food and Rural Affairs (“Defra”) to forward to the European Commission an application by the Melton Mowbray Pork Pie Association (“MMPPA”) for the registration of “Melton Mowbray Pork Pie” as a protected geographical indication (“PGI”) under EC Council Regulation 2081/92/EEC. The decision was notified to the Claimant on 28 February 2005 in a lengthy reasoned letter and Defra forwarded the application to the Commission on 9 May 2005.
By the middle of the 18th century, Melton Mowbray in Leicestershire found itself in an area popular for fox hunting. The hunting season coincided with the slaughter of pigs. Some of the pork went into pork pies and these were popular initially with hunt servants and later with those hunting. In the early 19th century pork pies originating in Melton Mowbray started to be carried to London. Although the early part of the 20th century saw a decline, the trade revived and in 1998 the MMPPA was formed to bring together producers of what they would claim to be the authentic Melton Mowbray pork pie.
Behind the present proceedings lie, of course, the commercial interests of the Claimant and the members of the MMPPA. The Claimant produces “Melton Mowbray pork pies”, although they would not comply with the specification, in Trowbridge, Wiltshire and in Market Drayton, Shropshire. Not many pork pies now originate in Melton Mowbray, but members of the MMPPA, including the largest, Samworth Brothers, market “Melton Mowbray pork pies” made in places closer to Melton Mowbray.
The “geographical area” defined in the application covers a large area, including not only Leicestershire, but Nottinghamshire and parts of Northamptonshire and Lincolnshire. It is that to which the Claimant objects. However, if they assert that Melton Mowbray pork pies should come only from Melton Mowbray, the assertion is perhaps somewhat disingenuous. A registration on that basis would prevent not only most of the members of the MMPPA from selling their pork pies as “Melton Mowbray”; it would prevent the Claimant itself from doing so, quite apart from the specification of the contents of the pies. It may be that they would prefer no registration at all, although they suggest that “Melton Mowbray pork pies” could receive a “Traditional Speciality Guaranteed” (“TSG”) designation under a different regulation (2082/92). That is not a matter for my decision.
The Regulation: substantive provisions
The Council Regulation was made on 14 July 1992
“on the protection of geographical indications and designations of origin for agricultural products and foodstuffs”.
The preamble includes the following:
“Whereas, as part of the adjustment of the common agricultural policy the diversification of agricultural production should be encouraged so as to achieve a better balance between supply and demand on the markets; whereas the promotion of products having certain characteristics could be of considerable benefit to the rural economy, in particular to less-favoured or remote areas, by improving the incomes of farmers and by retaining the rural population in these areas;
Whereas, moreover, it has been observed in recent years that consumers are tending to attach greater importance to the quality of foodstuffs rather than to quantity; whereas this quest for specific products generates a growing demand for agricultural products or foodstuffs with an identifiable geographical origin;
Whereas in view of the wide variety of products marketed and of the abundance of information concerning them provided, consumers must, in order to make the best choice, be given clear and succinct information regarding the origin of the product;
…
Whereas the desire to protect agricultural products or foodstuffs which have an identifiable geographical origin has led certain Member States to introduce ‘registered designations of origin’; whereas these have proved successful with producers, who have secured higher incomes in return for a genuine effort to improve quality, and with consumers, who can purchase high quality products with guarantees as to the method of production and origin;
Whereas, however, there is diversity in the national practices for implementing registered designations of origin and geographical origins; whereas a Community approach should be envisaged; whereas a framework of Community rules on protection will permit the development of geographical indications and designations of origin since, by providing a more uniform approach, such a framework will ensure fair competition between the producers of products bearing such indications and enhance the credibility of the products in the consumers’ eyes;
…
Whereas the scope of this Regulation is limited to certain agricultural products and foodstuffs for which a link between product or foodstuff characteristics and geographical origin exists; whereas, however, this scope could be enlarged to encompass other products or foodstuffs;
…
Whereas to enjoy protection in every Member State geographical indications and designations of origin must be registered at Community level; whereas entry in a register should also provide information to those involved in trade and to consumers;”
The relevant part of Article 2 reads
“1. Community protection of designations of origin and of geographical indications of agricultural products and foodstuffs shall be obtained in accordance with this Regulation.
2. For the purposes of this Regulation:
(a) designation of origin [“PDO”]: means the name of a region, a specific place or, in exceptional cases, a country, used to describe an agricultural product or a foodstuff;
- originating in that region, specific place or country, and
- the quality or characteristics of which are essentially or exclusively due to a particular geographical environment with its inherent natural or human factors, and the production, processing and preparation of which takes place in the defined geographical area;
(b) geographical indication [“PGI”]: means the name of a region, a specific place or, in exceptional cases, a country, used to describe an agricultural product or a foodstuff;
- originating in that region, specific place or country, and
- which possesses a specific quality, reputation or other characteristics attributable to that geographical origin and the production and/or processing and/or preparation of which take place in the defined geographical area.” (My underlining).
“3. Certain geographical or non-geographical names designating an agricultural product or foodstuff originating in a region or a specific place, which fulfil the conditions referred to in the second indent of paragraph 2(a) shall also be considered as designations of origin.”
Thus the test for PDOs is different from that for PGIs. Article 2.3 provides for a subsidiary kind of PDO.
Article 3 provides that names that have become generic, that is those that have become the common name of an agricultural foodstuff, may not be registered.
The relevant part of Article 4 reads:
“1. To be eligible to use a protected designation of origin (PDO) or a protected geographical indication (PGI) an agricultural product or foodstuff must comply with a specification.
2. The product specification shall include at least:
(a) the name of the agricultural product or foodstuffs, including the designation of origin or the geographical indication;
(b) a description of the agricultural product or foodstuff including the raw materials, if appropriate, and principal physical, chemical, microbiological and/or organoleptic characteristics of the product or the foodstuff;
(c) the definition of the geographical area …;” (My underlining).
“(d) evidence that the agricultural product or the foodstuff originates in the geographical area, within the meaning of Article 2(2)(a) or (b), whichever is applicable;
(e) a description of the method of obtaining the agricultural product or foodstuff …;
(f) the details bearing out the link with the geographical environment or the geographical origin within the meaning of Article 2(2)(a) or (b), whichever is applicable;”
Procedural matters
Before I turn to the construction of the substantive provisions, I must deal with the submissions about procedural matters. The Claimant submits that Defra were under a duty to check that the application was justified. It further suggests that the Court may consider it appropriate to seek a preliminary ruling from the European Court of Justice, pursuant to Article 234 of the EC Treaty, but would seek interim relief if that is done. Defra does not assert that it has no obligation to determine whether the regulatory requirements have been met, but points out that the Commission and Member States will further consider the matter. Both Defra and the MMPPA oppose a reference to the European Court.
Defra criticises delay by the Claimant. The Defendant invites me to refuse relief on that ground. The Defendant further points out that once Defra has forwarded the application to the Commission, Defra has no power under the Regulation to withdraw the application and in any event submits that I should not even order Defra to request the Commission not to proceed.
Articles 5 and 6 deal with the procedure. Only a group or, in certain circumstances, a natural or legal person may apply for registration: Article 5.1. Article 5 continues:
“3. The application for registration shall include the product specification referred to in Article 4.
The application shall be sent to the Member State in which the geographical area is located.
4. 5. The Member State shall check that the application is justified and shall forward the application, including the product specification referred to in Article 4 and other documents on which it has based its decision, to the Commission, if it considers that it satisfies the requirements of this Regulation.”
The relevant part of Article 6 reads:
“1. Within a period of six months the Commission shall verify, by means of a formal investigation, whether the registration application includes all the particulars provided for in Article 4.
The Commission shall make public any application for registration, stating the date on which the application is made.
2. If, after taking account of paragraph 1, the Commission concludes that the name qualifies for protection, it shall publish in the Official Journal of the European Communities [details of the application].
3. If no statement of objections is notified to the Commission in accordance with Article 7, the name shall be entered in a register ….
4. The Commission shall publish in the Official Journal of the European Communities [the names entered in the Register].
5. If, in the light of the investigation provided for in paragraph 1, the Commission concludes that the name does not qualify for protection, it shall decide, in accordance with the procedure provided for in Article 15, not to proceed with the publication provided for in paragraph 2 of this Article.
Before publication as provided for in paragraphs 2 and 4 and registration as provided for in paragraph 3, the Commission may request the opinion of the Committee provided for in Article 15.”
Article 15 provides for a committee of experts. Article 7 provides for a Member State to object to registration, but only on the grounds of non-compliance with the conditions in Article 2. The Member State which has forwarded the application to the Commission may not object: Cark Kűhne GmbH & Co.KG and Others v. Jűtro Konservenfabrik GmbH & Co.KG, Case C-269/99 [2001] ECR I-9517. However, in the event of an objection, Article 11 provides for dispute resolution between the forwarding State and the objecting State.
In connection with the scope of Defra’s duty I have been referred to the decision of the European Court in Kűhne. The case dealt with an application under Article 17, that is, under the simplified procedure for initial applications for registration. The Court said:
“52. Under Article 5(5) of Regulation No. 2081/92, it is for the Member States to check whether the application for registration under the normal procedure is justified with regard to the conditions laid down by that regulation. … Furthermore, it follows from the very terms of Article 6(1) … that before proceeding with the registration, as provided for by Article 6(2) to (4) and Article 7 of that regulation, the Commission undertakes only a simple formal examination to check whether those requirements are satisfied. There is no ground for applying other principles in the context of the simplified procedure.
53. It follows that the decision to register a designation as a PDO or as a PGI may only be taken by the Commission if the Member State concerned has submitted to it an application for that purpose and that such an application may only be made if the Member State has checked that it is justified. That system of division of powers is attributable particularly to the fact that registration assumes that it has been verified that a certain number of conditions have been met, which requires, to a great extent, detailed knowledge of matters particular to the Member State concerned, matters which the competent authorities of that State are best placed to check.
…
57. … it must be noted that the requirement of judicial control stems from the constitutional traditions common to the Member States and is enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms … That requirement must also be complied with with regard to a measure, such as the application for registration at issue in the main proceedings, which constitutes a necessary step in the procedure for adoption of a Community measure, where the Community institutions have only a limited or non-existent discretion with regard to that measure …
58. It is, therefore, for the national courts to rule on the lawfulness of an application for registration of a designation, such as that in issue in this case, on the same terms as those by which they review any definitive measure adopted by the same national authority which is capable of adversely affecting the rights of third parties under Community law …”.
There is ultimately little at issue between the parties as to Defra’s duty or this court’s duty to rule on the lawfulness of Defra’s actions, but the judgment in Kűhne seems to me to put these matters beyond doubt.
As to reference to the European Court, I was referred to the judgment of Sir Thomas Bingham MR in R. v. International Stock Exchange, ex p. Else (1982) Ltd. [1993] QB 534 at 545:
“… I understand the correct approach in principle of a national court (other than a final court of appeal) to be quite clear: if the facts have been found and the Community law issue is critical to the court’s final decision, the appropriate course is ordinarily to refer the issue to the Court of Justice unless the national court can with complete confidence resolve the issue itself. In considering whether it can with complete confidence resolve the issue itself the national court must be fully mindful of the differences between national and Community legislation, of the pitfalls which face a national court venturing into what may be an unfamiliar field, of the need for uniform interpretation throughout the Community and of the great advantages enjoyed by the Court of Justice in construing Community instruments. If the national court has any real doubt, it should ordinarily refer. I am not here attempting to summarise comprehensively the effect of (leading cases)… but I hope I am fairly expressing their essential point”.
I have reached a firm decision on the merits, for reasons I shall give, and in those circumstances I do not consider a reference appropriate. The issue of interim relief does not arise. Since my conclusion is that Defra acted correctly in forwarding the application to the Commission, the issues of delay and remedy do not arise.
The merits
It is clear and not ultimately in dispute that the “name of a specific place … used to describe a foodstuff”, for the purposes of Article 2.2(b), is “Melton Mowbray” pork pies. I do not think that counsel for Defra ultimately relied on the word “region” as an alternative. Nor is it disputed that the name “possesses a specific reputation attributable to that geographical origin” (i.e. the specific place) of the kind referred to in that paragraph.
I think all counsel ultimately agreed that the words “originating”, “originate” and “origin” refer to where Melton Mowbray pork pies had their origin in the past, not where they now come from. That is also my view.
The core of the argument by Mr.Hoskins on behalf of the Claimant is that “the defined geographical area” refers to the same specific place (or region or country in appropriate cases) and to the same geographical origin. Hence the “geographical area” defined in Article 4.2(c) must here be Melton Mowbray, although he concedes that this could include the immediate vicinity of Melton Mowbray. It could now be the town or even the Borough of Melton Mowbray, although, as other counsel pointed out, boundaries have over the years changed and may change in the future.
Mr.Hoskins commented on the extent of the defined geographical area, illustrating, he would argue, the consequences of any other interpretation. However, the grounds of challenge are based on his core argument. If those grounds fail, the defining of the geographical area is not the subject of a separate challenge.
It is the submission of counsel for both Defra and the Interested Party that the “defined geographical area” can be a wider area. They submit that the wording itself points to that conclusion. If the “defined geographical area” is the same as the specific place (or region or country), why use different words?
I derive some assistance from Article 4.2(f). It requires that the specification includes details bearing out the link with (for a PGI) the geographical origin within the meaning of Article 2(2)(b). If a comparison is made between 4.2(d) and 4.2(f), the foodstuff must originate in the geographical area and have a link with the geographical origin. I think this comparison strongly points to two different concepts. If they are different concepts, presumably one may be wider geographically than the other.
It is submitted by counsel for Defra and the Interested Party that if the Claimant is correct, a number of registrations have been made that do not comply with the Regulation. For example, the specified area for Pruneaux d’Agen includes not merely Agen but large parts of the departments of Lot-et-Garonne, Gironde, Dordogne, Lot and Tarn-et-Garonne. Agneau de Pauillac has a specified area that covers the whole of the department of Gironde. Jambon de Bayonne may come from anywhere in Aquitaine, the Midi-Pyrénées and Poitou-Harentes (sic) and several neighbouring departments. And Italy has similar wide areas for Parma ham and Mortadella Bologna. There are other examples and other products the subject of current applications.
These comparisons demonstrate not that these registrations are necessarily correct, but that the argument put forward by the Claimant is novel and not one that has previously met with agreement by the Commission or any of the Member States. Defra relied on guidance from the Commission that reflects such past practice.
Counsel in the course of argument speculated about whether a consumer would expect a “Melton Mowbray pork pie” to come from Melton Mowbray. Defra considered that the evidence about that was inconclusive, although surveys showed that some consumers believed that. In any event that would be relevant only if it were contended that the name had become generic for the purposes of Article 3. That has not been raised as an issue in these proceedings.
Counsel for Defra placed some reliance on the other language versions of the Regulation, each being equally determinative. The French version, for example, uses the words “un lieu déterminé” where the English version is “a specific place”. She submitted that the concept in French, and Italian and Spanish, is wider than the English version. However, no expert evidence is before me. I would not claim the ability to assess whether the nuance is significantly different in the French version. I note that in Collins-Roberts French Dictionary (3rd edition) “specific” and “déterminé” appear among the translations of each other and that there does not appear to be any equivalent in French of the distinction between “specific” and “specified”. In the end I cannot derive assistance from these submissions.
I prefer the submissions of counsel for Defra and the Interested Party. In my view the “defined geographical area” for the purposes of Article 2.2(b) and 4.2 may be different from the “specific place” (or “region”) where the foodstuff originated. In my view Defra were clearly correct in their interpretation of Article 2 and were justified in forwarding the application to the Commission.
This was a “rolled-up” hearing of the application for permission and the substantive hearing. The application deserved to be argued and I grant permission. However, I dismiss the application for judicial review.
-----------------------
MR JUSTICE CRANE: I am handing down the judgment, of which copies are available to everybody. Bearing in mind there is some, I understand, public interest in this, I would probably normally have read the judgment out. But the pressure of business in the court today on the last day of term is quite significant, and therefore I shall simply hand it down. And as I say, copies are available to anyone who wishes to have a copy.
MR HOSKINS: My Lord, there are a number of applications which should not take too long. First of all, we do wish to apply for permission to appeal. Defra wishes to apply for its costs and we do not oppose that. And the Association wishes to apply for its costs, and we do oppose that application.
MR JUSTICE CRANE: Yes.
MR HOSKINS: So if I can deal first --
MR JUSTICE CRANE: Sorry, can I just say; I had one skeleton argument from Mr Edenborough from the interested party, which I had a chance to read.
MR HOSKINS: My Lord, thank you for that. Permission to appeal, obviously you will be well aware of the criteria; CPR Rule 52.36 and the notes thereto. And there are two criteria, a real prospect of success which is akin to a summary judgment-type test or some other compelling reason. And we say actually both those criteria are present in this case; and therefore we seek permission for two reasons.
The first reason obviously relates to the interpretation of the regulation. And the judgment relies on a comparison between articles 4.2(d) and 4.2(f) of the regulation, i.e. what is to be contained in the specification.
My Lord, you found that 4.2(d) requires a specification to include evidence that food stuff originates in the geographical area; whilst article 4.2(f) requires a specification to include the details, bearing out the link with the geographical origin. And, my Lord, you have relied on the difference in wording between "area" and "origin" to suggest there are two different concepts, one of which may be wider geographically than the other.
My Lord, with respect, we submit that -- not surprisingly, we submit -- the correct interpretation is different from that. And what we say is that article 4.2(d), which is that the food stuff originates in the geographical area, relates to the requirement in article 2.2(b) that the product must originate in a specific place. And we say there is direct read across between those two. And then we say that article 4.2(f), which is the details bearing out the length of the geographical origin, relates to the requirement in 2.2(b) that the food stuff must possess a specific quality, reputation or other characteristics attributable to that geographical origin. So we say they pair up in that way.
And if indeed that is the correct interpretation of the regulation, then we say it follows that 4.2(d) and (f) both refer to the place of origin of the product rather than two separate places.
My Lord, whatever --
MR JUSTICE CRANE: I --
MR HOSKINS: I am sorry, my Lord.
MR JUSTICE CRANE: I think I should point that although I derived some assistance from a comparison of those two subparagraphs, that was not the only basis for the interpretation. That was, as it were, one consideration.
MR HOSKINS: My Lord, yes. And I was going to go on to say that whatever the approach that one adopts to the wording of the regulation in that way, I think it probably is fairly undisputable that the wording of this regulation, like a lot of community legislation, is not conclusive on its face.
That is why we say that in accordance with probably the most important principle of interpretation of community law, one has to look at the purpose of the regulation. And my Lord, I can take this very quickly because it is the submission we made to you in the hearing.
We say the purpose of the regulation is in particular twofold; to provide a guarantee of origin, to ensure a uniform interpretation. And with respect, we say that the interpretation in the judgment, the conclusion in the judgment, does not pay sufficient regard to those objectives.
First of all, because a pork pie produced in Northampton and called a "Melton Mowbray pork pie" does not give a sufficient guarantee of origin.
Secondly, to allow PGI to bear the name or to be attached to a product rather that is produced in a place other than that whose name appears in the PGI gives an untrammelled discretion to each member state, and therefore defeats the purpose of the need for uniform interpretation.
So, my Lord, that is the first ground on the interpretation of the regulation; and we say that we do have a realistic or a real prospect of success in relation to that.
And secondly; in terms of another compelling reason, the issue raised is, we say, of general importance throughout the European Union. Perhaps the most striking example that was relied upon by Defra to show the practice that had been followed to date by the member states and the Commission were the olives from Nice. Because, my Lord, you may remember that the application for protection of olives from Nice had a defined geographical area of 99 municipalities in France. Only one was Nice. We say that a customer in the UK or in Germany or Portugal, going to buy olives from Nice, would probably be very surprised to find out they had been produced in such a wide area of France. We do say that the approach adopted by the member states and the Commission to date does result in consumers being misled, and that the Court of Justice should therefore have the opportunity to rule upon the issue.
My Lord, those are the submissions we wish to make in relation to permission.
MR JUSTICE CRANE: Well, Mr Hoskins, I am afraid I am against you on permission to appeal, and I shall not grant permission. It seems to me that the interpretation in the end was clear, and it does not seem to me that there is some other important reason why there should be an appeal.
MR HOSKINS: My Lord, yes. In that event, could I make an application for an extension of time in relation to the Court of Appeal? CPR Rule 52.4 --
MR JUSTICE CRANE: When are you asking until?
MR HOSKINS: I would ask until Wednesday the 18th January.
MR JUSTICE CRANE: Any opposition to that? It seems to me, bearing in mind the holiday period and the fact that there has been, as it were, quite a lengthy delay in one sense anyway, I am not sure. I am slightly sympathetic to allowing that.
MR EDENBOROUGH: My Lord, we do not object.
MR SMITH: My Lord, yes. Given the Christmas period, that would seem sensible.
MR JUSTICE CRANE: Yes, very well.
MR HOSKINS: I am obliged. I think as I say, Defra has applied for costs and we do not oppose that. Then the Association has its application for costs.
MR JUSTICE CRANE: Right. Well, I will hear that, yes.
MR EDENBOROUGH: My Lord, I am grateful. You indicated you had a chance to read my skeleton.
MR JUSTICE CRANE: Yes, I have.
MR EDENBOROUGH: My Lord, annexed to that skeleton, I trust there was a copy of the case upon which I intend to rely, the Bolton Metropolitan District Council case.
MR JUSTICE CRANE: Yes, there was.
MR EDENBOROUGH: My Lord, very briefly, we would say that the interested party in this case, the Melton Mowbray Pork Pie Association, did have a separate interest to represent that was different from Defra's.
And the reason for that really was because Defra was sitting there, standing there, as in essence a neutral arbitration tribunal. Because to it, what it was concerned about was not this particular PGI application, but the way in which it interpreted the application -- sorry, interpreted the rules in general. Whereas of course, Melton Mowbray Pork Pie Association, its only reason for its existence is with respect to securing a PGI registration for Melton Mowbray pork pies. So therefore there is a clearly distinct issue there, interest.
And the way in which that can be tested, for example, is if for example your Lordship's judgment had gone the other way, then it is quite likely that there would have been a differently formulated PGI application -- be it one depending upon how it had gone the other way, if you see what I mean -- on a more narrowly focused geographical area or what have you. Or it might have been possible that instead of a PGI, it might have been a TSG. You remember your Lordship was taken to that as a different form of protection under regulation 20.82 as opposed to 20.81.
Of course if that had occurred, then Defra again has to sit as a neutral arbitration tribunal to decide upon that second application from the Melton Mowbray Pork Pie Association. So therefore again, it would be concerned as to the correct interpretation of whichever relevant regulation there might be. But again, it would be the Association's interests to secure some sort of registration.
Also in this particular case, with respect to the factual matrix, it was really not Defra's position to put forward the facts. Because it is not as if, for example, this were a standard judicial review where something had gone wrong within Defra and it was defending its own actions with respect to some sort of mistake that it had made with respect to process in an application or something.
But here, if there were any issues with respect to facts, it was for the Association to put those facts before your Lordship. So again, that shows it had a separate interest and a separate role to play.
MR JUSTICE CRANE: Yes. I mean, one has to say that in the way that the hearing went, in the end the arguments of Defra and those you were representing substantially overlapped, did they not?
MR EDENBOROUGH: Absolutely. There is no doubt that they did substantially overlap. And I deliberately tried not to merely repeat those that my learned friend represented for Defra.
MR JUSTICE CRANE: no.
MR EDENBOROUGH: What I tried to do was in essence to put them in a different light and to give a different slant, and to come from a different point of view.
My Lord will remember that I opened my submissions by saying that I come from the Intellectual Property Bar; so therefore I have made reference to the way in which this application was akin to a trademark, and drew those points out and developed that line of argument so as to put a different flavour upon the application. So yes, we accept that they were substantially the same, but they were not absolutely identical with respect to the issues that were put forward.
But that is still separate, my Lord, from the point that we had a separate interest from Defra. Even if the arguments were identical, we still had a separate interest to put forward. And that is because this application concerns us personally, whereas Defra's role is more as a guardian with respect to PGI's in general.
My Lord, you can find that in particular, if I might take you to the speech of Lord Lloyd of Berwick. And my Lord, you will find that on page 1179 which is the last page of the report. And can you see part B, where he says:
"First, the case raised difficult questions of principle ..."
First of all, I say that was clear, it did raise difficult questions of principle:
"... arising out of a change of government policy."
Well here, of course it is how Defra interpreted this regulation. And then if you carry on through that paragraph, you can see that he puts forward and relies upon the fact that the government department had to remain aloof from the parties, whereas the interested party was only concerned with the outcome of that particular judicial review. And so therefore, that was sufficient to give them a separate interest.
And then at capital D, he goes on to say that:
"The second point is the scale of development and the importance of the outcome to the interested party, were both of acceptable size and weight."
I would say that is the same here. The scale of this application, the economic significance, is really quite large. And I think evidence for that can be taken by the fact that my Lord has seen there is quite a lot of public interest in this matter. And of course, it is of great importance to the Association. The whole reason for the Association's existence is to get this PGI through.
And then the third point that Lord Lloyd relies upon is that in essence the opposition came not from the government department, but of course from another commercial entity. And here we say that Northern Foods was of course the protagonist in this case. And if Northern Foods had not been involved; if for example we take a different factual matrix. Say for example Defra had refused the application to start with and that the Melton Mowbray Pork Pie Association had sought a judicial review of that decision -- which of course in essence in a hypothetical case would now be successful -- Melton Mowbray, being the protagonist in that hypothetical example, would have got its costs.
So therefore -- you are frowning, my Lord.
MR JUSTICE CRANE: I am not, I am listening. You got to the end of your argument, but it seemed to me there is some difficulty with that particular line of reasoning.
MR EDENBOROUGH: Well, my Lord, the way in which I was putting it forward was that in essence, Melton Mowbray Pork Pie Association needed to be there to represent its own interest in the outcome.
MR JUSTICE CRANE: Yes. I mean, that is the core proposition; if one goes back to page 1178 at Lord Lloyd's numbered propositions, it is the second proposition. And I think it is not a separate issue point; it is an interest that requires separate representation.
MR EDENBOROUGH: It is the second limb.
MR JUSTICE CRANE: That is the crucial question, is it not?
MR EDENBOROUGH: My Lord, the second limb of the second proposition, exactly so. My Lord, those are my submissions.
MR JUSTICE CRANE: Thank you. Yes.
MR HOSKINS: My Lord, first of all the general practice, as I think is common ground between the parties, having seen the Bolton case, is that in judicial review proceedings the normal position is that the losing party should only pay one set of costs. So there has to be some reason to depart from the norm.
In this case, there was no separate issue upon which it was necessary to hear the Association.
MR JUSTICE CRANE: No, it is not suggested there was.
MR HOSKINS: And its interests were capable of being fully protected by Defra.
One has to be very careful with the sort of submission my learned friend is making, because of course in every judicial review case where a government department has adopted a decision which grants something to an applicant and someone else comes in to challenge the grant, you can always say there is a difference of interest. Because we have the commercial interest in getting the thing granted and Defra is fulfilling a regulatory role. But that in itself cannot be enough to constitute a separate interest.
And it is important to note the way in which this case, what this case actually involved. Because the claim raised a discrete legal issue concerning the interpretation of the regulation. And as we saw in the hearing, Defra was clearly capable of arguing that legal point without the assistance of the Association. There was nothing in terms of legal analysis that the Association brought to the case that Defra could not and did not bring. And indeed, we go so far as to say that the Association's legal submissions did not actually add any point of substance to those taken by Defra.
It is suggested by the Association that they needed to be here to file evidence, because that was not really for Defra to do. But, my Lord, the case turns on the point of construction; not on factual issues. There was no real dispute about the factual background to the case; there was nothing contentious there. And again, there was no need for the Association to come in simply to provide factual information.
And thirdly, there is the analogy that my learned friend seeks to draw from Lord Lloyd's speech at 1179B to C. And this notion of, in Bolton there was a wider policy to be defended by the Secretary of State, as well as the particular decision in the case. And it is suggested that as in Bolton, here Defra had to remain aloof from the parties.
But with respect, that purported analogy is misplaced. The case before this court did not concern any issue of wider policy at all; it concerned a discrete point of legal construction. And the views and interests of both Defra and the Association were precisely the same. When one comes to the question where there was a separate interest, both Defra and the Association wanted this particular PGI to go forward.
MR JUSTICE CRANE: Yes, I see your point about that. Can I just deal with the interim relief point. Now obviously, that was not crucial, but the parties clearly needed to foresee that there might be a reference to the European Court. Ultimately I decided against that, but that could have been done in a sense.
MR HOSKINS: Okay.
MR JUSTICE CRANE: I am not suggesting to you that the interested party's presence was especially necessary in relation to whether there should be a reference. But if you came to an interim relief, they perhaps did have things to say, or would have had -- well, did have things to say and would have had perhaps relevant things to say in which Defra might not have been quite so interested.
MR HOSKINS: My Lord, it is certainly the case in principle that might have been the case. But on the way this case ran, Defra opposed interim relief. And the Association opposed it on the same grounds. And it was not a case, for example, where we had put in witness evidence that we relied on heavily in relation to interim relief. The Association had put in a witness statement, but it did not particularly go to interim relief; and indeed they did not rely on it.
My recollection, my friend will correct me if I am wrong, I do not think it was referred to at all, the Association's evidence. Your Lordship was not taken to that at all during the hearing. And it was not relied on specifically in relation to interim relief. So it would be an odd situation to say: well, the Association might have had an interest to come in and say something extra on interim relief. But we know that it did not say anything extra on interim relief.
My Lord, even if one were to say they should be entitled to come and see what happened in relation to interim relief, it was not a major part of the case. If, my Lord, you were minded to reflect the fact they had appeared, I would suggest something in the order of 20 per cent of their costs would relate to that issue, but no more. So the order would be that they would pay Defra's costs and, say, 20 per cent of the Association's. But certainly no higher than that, given the way in which interim relief was in fact run by the Association. But my primary position is, as we know, they did not actually add anything on interim relief.
My Lord, another point that is taken in the skeleton is that Northern Foods has substantial means. But I hope, my Lord, the court will agree that we conducted the case in an efficient manner. We did not seek to derive any benefit from Northern Foods's financial strength, and there was certainly a level playing field between Northern Foods and Defra in the way in which the case was run.
MR JUSTICE CRANE: I do not think that is ...
MR HOSKINS: So in conclusion, we simply say that the Association, although it might have had an interest to come and protect, we know -- because we have had the case -- that it did not actually add anything of substance to the case on any of the issues. My friend quite correctly said he did not seek to repeat anything. With respect, it did not leave very much extra to say; and what was said was not particularly new.
MR JUSTICE CRANE: Presumably though, the question of whether they had an interest to protect has to be looked at when the decision was taken to appear. Because it may ultimately, in view of the way the hearing goes and the way the arguments are put, be said that in a particular case, that in the end the interested party did not add very much.
But there are cases at least -- we need not decide whether this is one of those for the moment -- there are cases where that may not be quite so glaringly obvious in advance. I think the question is: is that not a fair way to look at it?
MR HOSKINS: It is certainly a relevant consideration to take into account.
However one has to be very careful because in any tripartite judicial review, you will have exactly the same situation; where you have in advance the decision maker, the person in whose favour the decision is made, and the person challenging. And one could always say: well, until the case happens, the person who is holding the decision in their favour does not know whether they have to intervene or not.
And yet Bolton tells us, and many subsequent cases tell us, that the normal practice is still not to allow two sets of costs. So yes, that is a relevant consideration but one cannot give it too much weight, given the normal practice which is clearly established.
And that is why I do say what the Association should have done is sat back and said: well, is it likely that Defra is going to -- given what was in the claim form, which was purely a legal challenge, is it likely that Defra can protect our interests? And the answer, we say, is clearly: yes, it is just a legal point, there are no facts to add. Defra are perfectly capable of arguing a legal point as it did.
So the only remaining question would be: well, should we go in on interim relief just in case Defra does not protect us enough? I have made my submissions. At most, we say, it entitles the Association to say 20 per cent of its costs to reflect what part of the case it was.
Thank you, my Lord.
MR EDENBOROUGH: Very briefly, two points.
First, with respect to interim relief, that was exactly an example where evidence was filed by the interested party with respect to, for example, the effect of the closure of one of Northern Foods's factories and the effect that that would have on the unemployment situation. The Association did file evidence to rebut that.
The second point is that my Lord will be aware that this is the second judicial review. In the first judicial review, a compromise was reached between the claimant and Defra. And that was a consent order that was agreed between those two parties, without the interested party consenting to that order. And therefore it clearly shows that Defra could take a decision that would not incorporate the wishes of the interested party. So therefore, it is absolutely clear --
MR JUSTICE CRANE: What decision might they have taken?
MR EDENBOROUGH: Well, they might have taken the decision to compromise again as to judicial review. They compromised the first judicial review. The second judicial review was not compromised.
So we would say that the presence of the interested party was essential to ensure that its interest was represented all the way through a final hearing. Because otherwise, we did not have any control. We could not rely upon Defra to stand firm.
MR JUSTICE CRANE: Well, just remind me. In what way did the previous compromise work against the interests of the interested party?
MR EDENBOROUGH: The first judicial review, very briefly, was more wide ranging and not only had legal points; it also had factual points.
MR JUSTICE CRANE: Yes.
MR EDENBOROUGH: What happened was that instead of allowing that to go to a full judicial review hearing, Defra allowed the first submissions by Northern Foods which were then addressed by other people, including the interested party. And then Defra issued the second decision which is the subject of this judicial review. The point is that it might have been possible for the second judicial review to have been again compromised in some way, without the interested party having had --
MR JUSTICE CRANE: In what way? Because as Mr Hoskins points out, leave aside, as it were, ancillary matters such as reference to interim relief and so on. The main issue is a pure question of construction of the regulations.
MR EDENBOROUGH: Yes, my Lord. If that had gone against the interested party's interests, so to speak, and in other words Northern Foods had prevailed upon Defra to take back the application in some shape or form, then the interested party would have had to have in turn reviewed Defra. If, for example, say --
MR JUSTICE CRANE: Well, that was immediately there to keep Defra up to the mark.
MR EDENBOROUGH: To stiffen their resolve, my Lord.
MR JUSTICE CRANE: Yes.
MR EDENBOROUGH: There were several issues, remember. For example, whether --
MR JUSTICE CRANE: Did they really need, did their resolve really need stiffening? Because they plainly came to defend their view. And bearing in mind the history, it was going to be very difficult for them to concede that the past practice for example, although that was not the crucial decision, but the decision that past practice was wrong, which would have been involved if they had capitulated, as it were.
MR EDENBOROUGH: Well, my Lord, the past practice to which you are referring is in essence the things that occur in Europe. But the particular part --
MR JUSTICE CRANE: But we are part of Europe.
MR EDENBOROUGH: Absolutely so. But what I was trying to say, my Lord, was the particular past practice that focused upon the minds of the interested party was the practice that occurred when Defra gave Northern Foods yet another chance to file submissions; and in essence, gave in on the first judicial review. That was compromised. And that was after an extensive consultation process with absolutely everybody. And that had resulted in the first decision which had been the subject of the first JR, and yet they gave in on that.
So with respect to the interested party, what they saw in a more micro historical perspective, as opposed to a Pan-European perspective, was that Defra had given in once already. So therefore, when the second JR comes along, it has to stand up to the block to make sure that Defra does not give way again.
And even though it might have been a particularly -- the decision was based upon a small point of interpretation, it is still right to say that Defra must have an interest in the way in which that affects its policy globally. Because this must have an effect, with respect to every other PGI application that comes through the portals to Defra. It is not a very, very small esoteric point that is never going to arise again. This goes to the very heart of PGIs. So therefore as I said earlier, there must be a sense in which Defra must remain aloof and separate from the two other parties, Northern Foods and the interested party.
My Lord.
MR JUSTICE CRANE: There is no dispute as far as the costs of Defra are concerned, but there is an issue as to the entitlement to costs of the interested party.
I have been rightly referred to Bolton Metropolitan District Council v the Secretary of State, 1 Weekly Law Reports 1176, particularly the speech of Lord Lloyd. Mr Edenborough on behalf of the interested party puts his application on the basis of proposition 2 on page 1178 at H. And the second part of that proposition, he submits that the Association have an interest which required separate representation. And he has referred me also to the considerations on the following page, 1179.
Mr Hoskins opposes the application on the basis that as the Bolton case makes clear, in the normal way, the interested party will not receive its costs if the claimant fails as here. But if there has been an interest which requires separate representation, then the court can award costs.
It seems to me, and Mr Hoskins concedes this, that one has to look at how the matter must have appeared when the decision was taken to appear, when the decision was taken to take part in the proceedings. The way in which the hearing progresses will not always be precisely foreseeable. Here, if the matter had gone differently, there would have been in my view some separate interest on the part of the interested party in relation to interim relief. The question though is whether, looking at the matter overall, they should get an award of costs in full.
It is perfectly true, as Mr Hoskins emphasises, that the main issue was a matter simply of interpretation. Of course I pay Mr Edenborough the compliment of indicating that his submissions were helpful, and that will normally be the case where the interested party appears through counsel; that a different voice, as it were, advancing arguments in a somewhat different form will in fact assist the court. But that is not the criterion.
What does influence me is the point that Mr Edenborough makes, that there had been a previous judicial review which was in fact compromised by Defra; and the interested party, he submits, had no guarantee that Defra would not make some concession or even a compromise in the matter as a whole. And although I do not find the issue as to costs easy, it does seem to me that in the end, there was a sufficient separate interest to justify the interested party being represented and taking part in the proceedings, particularly for the reason I have just given.
For those reasons, I shall make an order for costs in favour of the interested party.
Could counsel draw up the order between them and submit it to me? If it is available today, then I will sign it today. If not, there had better be arrangements to get it to me, possibly by e-mail.
MR EDENBOROUGH: My Lord, attached to my skeleton was actually a draft. Did you have a chance --
MR JUSTICE CRANE: I did see the draft. I have not, I have just handed the papers back. I have not checked to see if it is usable in the end.
MR EDENBOROUGH: I put in square brackets most of the various options, if you see what I mean.
MR JUSTICE CRANE: Have you still got a copy of it?
MR EDENBOROUGH: I have, and have you got a copy?
MR HOSKINS: Yes.
MR EDENBOROUGH: My Lord, I have got a spare copy.
MR JUSTICE CRANE: Well, could I leave it to counsel. If you have got a copy, I can easily hand this copy back. I have not marked it.
MR EDENBOROUGH: I have three clean copies, my Lord, so we can discuss it outside.
MR JUSTICE CRANE: If between you, you could discuss it outside. I quite agree that it probably does not need much adaptation; but to save the trouble of going through it now, that would be a great help. I will then sign it.
And my renewed thanks to counsel for their assistance in the case.