Zoolife International Ltd, R (on the application of) v Secretary of State for Environment, Food & Rural Affairs

Zoolife International Limited (“the claimants”) seek to challenge the decision of the Secretary of State for Environment, Food and Rural Affairs (who will be referred to as “DEFRA” ) contained in a letter dated 21 December 2006 (“ the decision letter”) refusing to give effect to the London Aquarium’s objections to the nomination of Miss Sue Thornton as the List 1 Inspector for the purposes of a periodic inspection of the London Aquarium pursuant to Zoo Licensing 1981 as amended (“the 1981 Act”).

The owners of the London Aquarium, Miss Sue Thornton, the International Zoo Veterinary Group (“IZVG”) and the London Borough of Lambeth (“Lambeth”) were joined as Interested Parties to the present proceedings but none of them has served an Acknowledgment of Service or played any part in the proceedings.

The claim has been resisted by DEFRA on the grounds first that it is now entirely academic and second (even if these academic issues are for some reason still to be entertained by the Court) that the decision under challenge discloses no arguable errors of public law either in the decision given or in relation to the adequacy of the reasons for that decision. I should add that during the hearing I raised the additional issue of whether I could grant declaratory relief which would effect the Interested Parties and others without them having been served with details of the relief which is now being claimed and which is set out on paragraph 25 below.

Counsel duly submitted very helpful submissions on this point but as I have decided to dismiss this claim for other reasons, it is now unnecessary for me to reach a final view on this issue although I set out my provisional conclusion in paragraph 43B below. This is a rolled-up application and at the outset of the proceedings I gave permission to the claimants to pursue this claim.

The 1981 Act requires the inspection and licensing of zoos and this includes aquaria, such as the London Aquarium. This work is undertaken by local authorities which for these purposes include London Boroughs; s1 (3) of the 1981 Act. London Aquarium lies within the administrative area of Lambeth and its licence was extended for a period of 6 years from 24 March 2001 until 24 March 2007.

London Aquarium was also required to have a periodical inspection in accordance with section 10 (3) (b) of the 1981 Act during the third year of this period of licence but the records of DEFRA indicated that this inspection had not taken place. Further as London Aquarium’s zoo licence was due to expire on 24 March 2007 and an extension was being sought, Lambeth was required no later than six months before that date to arrange an inspection in accordance with sections 9A and 10 of the 1981 Act.

Because London Aquarium was seeking to extend its existing licence, it was appropriate for Lambeth to arrange an inspection under section 10 (4) whilst also taking account of the considerations required by section 9A (12) which was appropriate for this section. Both these inspections were governed by section 10 (4) of the 1981 Act.

At the heart of this litigation is a dispute about the choice of inspectors and in particular the appointment of Miss Thornton as an Inspector but as I will explain, the inspection of the London Aquarium has now been completed after Miss Thornton was replaced as an Inspector. Under section 10(4) (a) of the 1981 Act, inspections had to be undertaken by no more than three inspectors appointed by the local authority and at least one of them had to be a veterinary surgeon or a veterinary practitioner and this requirement is of importance in the present case. Two inspectors were to be nominated after consultation with the local authority (which in this case was Lambeth) by DEFRA from a list with one inspector coming from Part I of the list, which comprised veterinary surgeons or veterinary practitioners, and the other from Part II, which consisted of those competent to advise on welfare of animals, conservation matters and the management of zoos

Lambeth duly asked DEFRA to nominate two inspectors for the inspection of the London Aquarium. On 29 September 2006, DEFRA consulted Lambeth as it was required to do so by section 10 (4) (a) (ii) of the 1981 Act on the proposed nomination of Miss Sue Thornton as the Part I Inspector and Professor Gordon McGregor-Reid as the Part II Inspector. As Lambeth had no objections to these nominations, DEFRA then wrote to Lambeth formally notifying it of the nominations on 10 October 2006. As is the practice, DEFRA wrote letters to the two nominated inspectors confirming they had been nominated for inspection and sending a copy of those letters to Lambeth.

It was the responsibility of Lambeth to appoint DEFRA’s nominated inspectors and the local authority inspectors before notifying the London Aquarium of the names of persons appointed to inspect the Zoo. Section 10 (2) of the 1981 Act requires the local authority after consultation with the Zoo (which in this case was the London Aquarium) to give the operator of that Zoo at least 28 days notice of the dates of the proposed inspections.

There is some dispute as to when London Aquarium became aware of the inspection team but it would seem that it was on or shortly after 15 October 2006 but nothing turns on the exact date in resolving the claimants’ challenge.

It is now appropriate to explain the role of the claimants who conduct a veterinary practice specialising in zoo animals with particular emphasis on aquatic animals. At the time of the events with which this application was concerned the director and principal veterinary surgeon of the claimants was Mr Marc Geach, who also acted as a veterinary consultant to London Aquarium under a contract between London Aquarium and the claimants. The nature of the services provided by the claimants to the London Aquarium was not that of a typical veterinary practice as it also provided a wider range of services relating to veterinary nutritional consultancy, specialist manufacturer, laboratory and diagnosis to different aquaria both within and outside the United Kingdom. This work enabled Mr Geach to pursue his interests in research and development activity in connection with new drugs and nutritional formulations to improve the welfare of aquatic animals which was an interest that he had previously pursued while working as an employee of Pfizer’s Animal Health Division.

For the purposes of the present application, the claimants attach substantial importance to five aspects of the work which they conducted at the London Aquarium. The first was that the veterinary and nutritional programmes which the claimants provided at the London Aquarium used a number of products, medicines, diets, therapeutic regimes, techniques and other specialist methods which had been or were being developed by Mr Geach as a result of many years of research, study and experience. The claimants regarded that information as constituting valuable trade secrets belonging to them and the publication of much of it in scientific and veterinary journals is pending. Moreover there were also various patents which the claimants had obtained while others were pending and which related to aquatic biotechnology applicable to animal medicine, healthcare and nutrition but many of the therapies, drugs and formulations, which Mr Geach was employing at the London Aquarium were still in the developmental stage without patents or other protection having been sought.

The second matter to which the claimants attach significance was that the London Aquarium was not simply a place in which it used its specialist knowledge and product but it was also the location of much of their ongoing development work and research work. This factor, according to the claimants was of importance to the London Aquarium in its desire to remain licensed under the Act since licences may now be granted or renewed only where the zoo or aquarium is making a demonstrable contribution to research and conservation. Much of this information, it is said by the claimants, related to the novel medicines techniques and methods which the claimants were adopting and which would be shown on the records of the London Aquarium. In consequence, it is contended by the claimants that any person knowledgeable in aquatic veterinary medicine or nutrition, who inspected the records of the London Aquarium, would have discovered those trade secrets and other commercially confidential information concerning the work of the claimants which it is contended by the claimants was very much at the cutting edge of research in those areas.

The third aspect of the claimants’ work, which they consider to be of particular significance on this application, was that they had made a considerable capital investment in laboratory and other research and development equipment amounting to about £150,000. In addition, the claimants’ agreements with other developmental partners included confidentiality provisions under which the claimants were under an obligation not to disclose the information to third parties in circumstances where this could prejudice the protection and or exploitation of relevant intellectual property rights.

The fourth matter considered of importance to this application by the claimants was that their main competitor was IZVG, who are the third Interested Party in these proceedings and with whom the claimants compete for contracts to advise and to conduct research at aquariums both in the United Kingdom and abroad. Miss Sue Thornton, who is the fourth Interested Party and whose appointment has provoked the present claim, has developed a particular speciality in aquatic animals with the consequence that her role in IZVG is equivalent to that occupied by Mr Geach in the claimants. The claimants’ case is first that there is a fine line between providing veterinary care and nutrition, on the one hand, and conducting research, on the other hand, and second that the specialist knowledge, product and techniques which Mr Geach on behalf of the claimants had developed would be of great value to IZVG. It was pointed out that it was this specialist knowledge, products and techniques of Mr. Geach which enabled the claimants to compete successfully with IZVG which is larger in size than the claimants.

The fifth matter, which the claimants consider to be important, was that Mr Geach had been employed by IZVG between May 1997 and May 2001 but that this relationship had ended acrimoniously with litigation taking place in which Mr. Geach had been successful. Miss Thornton was not employed by or associated with IZVG while Mr. Geach was employed there and she was not involved in the litigation between IZVG and Mr. Geach. It is unnecessary for me to decide if any of these five matters is true but for the purpose of this judgment, I will assume that each of these five matters relied on by the claimants are valid.

Pursuant to section 10(4) (a) (ii) of the 1981 Act, DEFRA nominated two inspectors for the purposes of the inspection of the London Aquarium, one name was chosen from each of the two parts of the lists of potential inspectors which DEFRA publishes pursuant to section 8 of that Act and to which I have referred in paragraph 8 above. The nominated Part 1 inspector was Miss Sue Thornton (a partner in IZVG who is also the fourth Interested Party in these proceedings). The Part II nominee was Professor McGregor-Reid. It is understood that these nominations were notified by DEFRA to Lambeth on or around 10 October 2006.

Lambeth arranged for an inspection of the London Aquarium to take place on 8 and 9 January 2007. On or shortly after 15 November 2006, the London Aquarium became aware (as a result of it receiving a copy of a document addressed to the appointed inspectors) that the inspection team was to comprise of the following four persons with the Inspectors nominated by DEFRA being Professor Gordon McGregor-Reid of Chester Zoo and Miss Sue Thornton of the International Zoo Veterinary Group and the Inspectors appointed by Lambeth being Mr Martin Burgon, who was the Animal Welfare Officer at Lambethand Ms Sharon Edwards, who was the Animal Health Inspector for the Corporation of London

After he became aware of those nominations, Mr Geach, on behalf of the Aquarium, contacted the relevant official at DEFRA (Mr Tom Adams) by telephone to request that DEFRA reconsider its nomination of Miss Thornton. In that regard, Mr Geach explained to him:

Mr Geach suggested that his concerns could be resolved with relative ease by the nomination of an alternative inspector from Part I of the list in place of Miss Thornton. On 18 December 2006, the Curator of the Aquarium (Mr Paul Hale) then wrote to Lambeth formally objecting to Miss Thornton’s appointment and requesting that DEFRA nominate an alternative inspector in her place and I will have to consider its terms in greater detail in paragraph 52 to 54 below. In writing this letter, the Aquarium was exercising its right under section 10 (4) (b) of the 1981 Act, which provides that:

“the operator [of the zoo] may give notice to the local authority of objection to any one or more of the inspectors, and the local authority or the Secretary of State as appropriate may if they think fit give effect to any such objection”.

Lambeth passed Mr Hale’s letter to DEFRA who, by a letter dated 21 December 2006 (“the decision letter”) informed Lambeth of DEFRA’s refusal to nominate an alternative inspector. It is that refusal in the decision letter which constitutes the decision which the Claimant is challenging and I will have to return to consider whether it discloses an error of public law in paragraphs 55ff below.

London Aquarium did not pursue this matter until 8 March 2007 when its solicitors wrote to the claimants with a copy being sent to DEFRA explaining that the London Aquarium did not object to the appointment of Miss Thornton as an Inspector and that it wished the inspection to take place as soon as possible. The London Aquarium had terminated its contract with the claimants on or about 6 March 2007.

Even then DEFRA could not proceed with the inspection of the London Aquarium with Miss Thornton as an Inspector because on 5 January 2007, the claimants had obtained an injunction on a without notice application prohibiting DEFRA from proceeding with the inspection of London Aquarium with Miss Thornton as an Inspector. By March 2007, there was great urgency for the inspection of London Aquarium to be completed before its licence expired on 24 March 2007. In these circumstances and in the light of the injunction, DEFRA appointed an Inspector in place of Miss Thornton and the inspection of London Aquarium took place on 19 March 2007 with a new licence being granted shortly thereafter.

The claimants have nevertheless decided to pursue their claim albeit in the form of an amended claim, which after a concession correctly made by Mr. Bates and to which I refer in paragraph 6 below, stated that:

“1.

A declaration that the defendant’s refusal to give effect to the London Aquarium’s objection to the nomination of Ms Sue Thornton as the List 1 inspector for the purposes of a periodic inspection of the Aquarium pursuant to the Zoo Licensing Act 1981, was unlawful;

2.

A declaration that the defendant’s reasons for its refusal to give effect to the London Aquarium’s objection to the nomination of Ms Sue Thornton were inadequate;

3.

A declaration that the defendant, in exercising his discretion whether or not to give effect to an objection to his nomination of a particular person as an inspector for the purposes of a periodic inspection of a zoo or aquarium pursuant to the Zoo Licensing Act 1981, should, where the reason given for the objection is a need to protect trade secrets, intellectual property and/or confidential information, take into account, and have due regard to:

(i)

the fact that an inspector, notwithstanding the absence of any bad faith on his part, may obtain knowledge of trade secrets, intellectual property or confidential information which he is unable to completely put out of his mind following the inspection, and that this may be prejudicial to the interest of the person(s) to whom the trade secrets, intellectual property or confidential information belong;

(ii)

any known history of intellectual property related or other disputes or litigation between the nominated inspector or his employer, and the person(s) to whom the trade secrets, intellectual property rights or confidential information belong; and

(iii)

the need to draw a fair and proportionate balance between the legitimate interests of the person(s) to whom the trade secrets, intellectual property rights or confidential information belong, and the public interests served by the zoo inspection and licensing regime.”.

The issues which I have to resolve are;

The submissions of DEFRA

Mr James Maurici counsel for DEFRA submits that the claims being pursued by the claimants in the present proceedings are now academic and that they should be dismissed because any judgment in the present proceedings will be of no value to the claimants because first the statutory objection to the nomination of Miss Thornton as a Part I Inspector has been withdrawn by the London Aquarium; second the nomination by DEFRA of Miss Thornton as a Part I Inspector has been withdrawn; and third the inspection of the London Aquarium has now taken place and fourth the claimants’ agreement with the London Aquarium has been terminated.

The claimants’ submissions

Mr. Alan Bates counsel for the claimants contends that the present proceedings should be allowed to proceed . He contends that there are issues at stake in the present claim, which have very considerable ongoing importance to the claimants’ interests and which the Court is able to and should resolve in the present proceedings.

It is said on behalf of the claimants that the refusal of DEFRA to withdraw the nomination of Ms Thornton has led to the collapse of the claimants’ commercial relationship with the London Aquarium thereby terminating their ability to continue their research work there. The claimants have in consequence had to make arrangements to continue their research work in other United Kingdom aquariums but these aquariums will require to be inspected but that in the light of the limited number of Part 1 Inspectors, it is very likely that at some stage in the future DEFRA would nominate Ms Thornton or another partner, officer or employee of IZVG to carry out such an inspection.

On that basis, Mr. Bates contends that it is vital to the claimants’ interests that guidance should be given in a judicial decision as to the approach which DEFRA is obliged to adopt when considering requests for an alternative person to be nominated as an inspector if Miss Thornton or another person associated with IZVG is nominated. The claimants’ case is that in the absence of such a ruling any request from an aquarium for an inspector other than Miss Thornton or another partner of IZVG to be nominated (which requests any such aquarium is likely to make in view of its contractual confidentiality obligation owed to the claimants) is likely to be refused again because of the common law duty of confidence, which would again be regarded by DEFRA as a complete answer to the concerns of the claimants.

In those circumstances if DEFRA refuses to reconsider its nomination of Ms Thornton or of another partner of IZVG, two consequences would follow. The first of which would be that the claimants would again have to seek an interim injunction as it did in the present case to prevent that person acting as an Inspector and the second consequence would be that the commercial relationship of the claimants with these other aquaria would again be likely to be destroyed for the simple reason that any aquarium would rather lose its vets (namely the claimants) rather than risk being closed down.

Discussion.

The starting point for considering whether a court should permit a party to pursue an academic point in a public law case is the classic statement of Lord Slynn of Hadley in R v. Secretary of State for the Home Department ex parte Salem [1999] I AC 450 in a speech with which other members of the Appellant Committee agreed when he explained (with my emphasis added) that:

“…. I accept, as both counsel agree, that in case where there is an issue involving a public authority as to questions of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House, there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se... The discretion to hear disputes, even in the area of public law, must be exercised with caution and appeals which are academic between the parties should not be heard unless there is good reason in the public interest for doing so as for example (but only by way of example) where a discrete point of statutory construction which does not involve detailed consideration of the facts, and where large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future”

One of the reasons for this approach was expressed by Lord Goff in R v. Secretary of State for the Home Department ex parte Wynne [1993] 1 WLR 115 at 120A-B where he said that:

“It is well established that this House does not decide hypothetical questions. If the House were to do so, any conclusion, and the accompanying reasons, could in their turn constitute no more than obiter dicta expressed without the assistance of a concrete factual situation, and would not constitute a binding precedent for the future”.

These statements refer to the approach of the House of Lords but there is no reason why they should not apply with equal force to other courts. This approach to academic issues was considered further in the speeches by the members of the Appellate Committee in R (on the application of Rushbridger) v. Attorney General[2004] 1 AC 357 in which:

Similar principles have been applied in the Administrative Court, for example, by Munby J in Smeaton v Secretary of State [ 2002] 2 FLR 146, 244 [420] (“the facts remain that the court-including the Administrative Court- exist to resolve real problems and not disputes of merely academic significance”) and by Davis J in BBC v Sugar [2007] 1 WLR 2583, 2606 [70] (“to grant remedies by reference to a decision made in now outmoded circumstances seems to me to be an arid and academic exercise. It is not something that, as an Administrative Court Judge, I would have been minded to do”). Although these statementsindicate thatif an issue is academic, the court cannot determine it, these statements must be subject to what was said in Salem and which has, as far as I can discover, not been disapproved of or qualified in any manner in any later case.

In my view, these statements show clearly that academic issues cannot and should not be determined by courts unless there are exceptional circumstances such as where two conditions are satisfied in the type of application now before the court. The first condition is in the words of Lord Slynn in Salem (supra) that “a large number of similar cases exist or anticipated” or at least other similar cases exist or are anticipatedand the second condition is that the decision in the academic case will not be fact-sensitive. If the courts entertained academic disputes in the type of application now before the court but which did not satisfy each of these two conditions, the consequence would be a regrettable waste of valuable court time and the incurring by one or more parties of unnecessary costs.

These points are particularly potent at the present time where the Administrative Court is completely overrun with immigration, asylum and other cases and where it would be contrary to the overriding objectives of the CPR for an academic case to be pursued. After all one of those overriding objectives is “dealing with a case justly [which] includes, so far as is practicable …(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases” (CPR Part 1.1) It is noteworthy that there have been a number of cases where the court has considered it appropriate to hear an academic issue but those cases, which often concerned statutory construction or the impact of the European Convention on Human Rights on English statutes, satisfied the two tests which I have set out in paragraph 36 above (see generally the examples given in R (on the application of B) v Dr SS, Dr AC and the Secretary of State for the Department of Health [2005] EWHC 86(Admin) [47]).

I come to the conclusion that there are a number of factors some of which are overlapping and which individually or cumulatively indicate that the present claim should not be heard as it is academic and I will now set them out in no particular order of importance.

First, any decision on the facts of this case would be fact-sensitive and would depend first on the reasons given by the particular aquarium , namely the London Aquarium, for not wishing the particular person to be an Inspector and second on the reasons given by DEFRA for rejecting those reasons. There is no certainty or even probability that both the reasons for the objections or that DEFRA’s response would be the same as they were in the present case. After all, there had been no previous applications by an aquarium for DEFRA not to appoint a proposed Inspector because the claimants were concerned about the appointment of that Inspector. In the future, there is no certainty or even a probability that the aquarium concerned would object rather than say terminating the claimants’ contract if the claimants were unhappy with the appointment of any particular Inspector.

Second, the duties of the claimants are not the same in the case of each aquarium as those which they performed at the London Aquarium. Whilst there might be different reasons given for objecting on grounds of confidentiality with the result that the result in the present case would not necessarily be the same in any other cases.

Third, there is no certainty or even a probability that even if somebody involved with IZVG was part of an inspection team inspecting another aquarium where the claimants were engaged that there would be any objection from them. Mr Geach had been involved in acrimonious litigation with IZVG and in particular with one of its partners Mr Greenwood. Nevertheless when Mr Greenwood was selected by DEFRA to be part of the inspection team to inspect an aquarium called The Deep in Hull, there was no objection from the claimants, who were retained as vets at that aquarium. I agree with Mr Maurici that this shows that even if partners of IZVG are appointed to inspect aquariums where the claimants are acting there is no certainty or probability that the claimants will object.

Fourth, even if DEFRA sought in the future to appoint Miss Thornton or someone else connected with IZVG as an Inspector, it is possible that the aquarium owners or the local authority or the prospective inspector might wish to adduce evidence or make submissions on the relationship between the claimants and IZVG. In that event, the court would on that occasion have to consider different material from that before me on this occasion because on the present application neither the aquarium, nor the prospective inspector nor the local authority have made representations. Fifth in the present case, the claimants have explained the importance of their confidential information but I have not heard if London Aquarium or IZVG or any Inspector agree with this evidence. In consequence any decision in this case would depend on assumed facts and in particular those set out in paragraphs 13 to 17 above. In consequence, any decision in this case is unlikely to be determinative or of any value in subsequent proceedings.

Finally this is an academic claim and for it to be determined by this court, there has, as I have explained, to be in Lord Slynn’s words in Salem to be a “good reason in the public interest for doing so” because no court should not use its valuable time hearing academic cases. As I have explained, there is in the present case no such good reason or indeed any reason to depart from the general rule explained in the cases to which I have referred in paragraphs 32 to 35 above. Indeed if the present case could be pursued and not regarded as academic, it is not very easy to envisage a case which would be regarded as not academic.

For all those reasons I have concluded that there is no reason as to why the present claim should be determined and that I must refuse to grant any relief to the claimants. In those circumstances, Mr. Maurici contends that I should not deal with any other of the other submissions made on this application. I am unable to accept that submission as it is desirable- if not necessary- for me to resolve the outstanding issues in case I am wrong on the academic issue and also because it might well be necessary for me to come to conclusions on the other issues when dealing with the question of costs. So I will now turn to consider the merits of the case although my comments will be obiter dicta.

The claimants’ submissions

The claimants contend that DEFRA’s refusal in the decision letter to comply with the request from the London Aquarium not to appoint Ms Thornton as an inspector for the inspection due of the London Aquarium under the 1981 Act was unreasonable. The claimants also complain of the lack of reasons in that letter. Initially the claimants also contended that the continuing refusal of DEFRA to nominate an alternative inspector to Ms Thornton until mid-March 2007 was also wrongful but during the course of the proceedings Mr Bates correctly in my view limited his challenge to the decision and the lack of reasoning in the decision letter.

The case for the claimants is that Miss Thornton as a partner of IZVG the claimants’ main competitor would in the course of her inspection acquire knowledge of information, which was commercially confidential to the claimants and which constituted the claimants’ possessions for the purposes of Article 1 of the First Protocol to the European Convention on Human Rights.

It is said by Mr Bates that it is unusual for a commercial undertaking as a consequence of a regulatory process to be given access to the trade secrets of a competitor and that the claimants’ concerns supported as they were by the London Aquarium required serious and careful consideration by DEFRA in deciding whether to exercise its discretion to nominate an alternative inspector. In performing that duty, the claimants contend that DEFRA was obliged to act reasonably in balancing the risks to the trade secrets and commercial interests of the claimants against any countervailing interests which are likely to arise from nominating a different inspector. It is said that such decision as to where the balance lay had to be reasonable and proportionate but the course adopted by DEFRA and its decision was Wednesbury unreasonable.

Mr Bates dismisses as being incorrect the contention that it would be a breach of confidence by Miss Thornton to have revealed the information she gained during the inspection to a third party because DEFRA failed to appreciate the risk to direct its mind properly to this matter . Importance is attached by Mr. Bates to the fact that the commercial interests of the claimants are the products of considerable investment and research by Mr Geach and that these were important factors of which DEFRA should have taken account but did not do so.

Another complaint of the claimants is that DEFRA failed to take account of the heavily disputed litigation between Mr Geach and the IZVG partnership. This according to Mr Bates was important because the work and responses of Miss Thornton would be contained in the document which would be in all probability of crucial importance when considered by Lambeth when deciding as to whether to renew the aquarium’s licence and if so to what conditions should be subject . Importance was attached to the appearance of bias, which I will deal with in part VI below in paragraphs 71 to 86.

DEFRA’s submissions

Mr Maurici points out that as the complaint of the claimants is about the decision letter of 21 December 2006, it is necessary to focus on the representations made on behalf of the claimants and which were set out in London Aquarium’s letter of 18 December 2006 and which were the subject matter of the responses which are contained in the decision letter.

That letter from the London Aquarium can be summarised as making three points, which they considered justifying the removal of Miss Thornton from the list of inspectors for the London Aquarium. First, it is said DEFRA should have agreed to remove her name because of the previous litigation between IZVG (which was the entity of which Ms Thornton had become a partner although she had not been involved with IZVG at the time of the litigation) and Mr Geach the sole director of the claimants and a former employee of IZVG.

The second matter referred to in the letter by London Aquarium was that there was a substantial amount of confidential information used in the veterinary nutritional healthcare program at the London aquarium which would be very valuable to a competitor working in the same field . So what was said to be needed by the London Aquariums was the:

“lengthy and costly preparation of confidentiality agreements between the inspection team and inspected party and their contractors would have to be completed prior to inspection and that such action is inappropriate ”

The third matter referred to in the letter of 18 December 2006 was to refer to a recent inspection in which the claimants and the local authority complained that an inspector had undermined the professionalism of the claimants. Thus it was suggested that the inspector to be appointed of the London Aquarium should be somebody “who is not direct competitor of the inspected party or their contractors”.

In the decision letter, which was the subject of the challenge in this case, the person writing on behalf of DEFRA explained the policy of DEFRA of retaining only one inspector from a previous inspection team and I add that there is no challenge to that policy. The decision letter then proceeded to consider the previous litigation of IZVG and Mr Geach but explained that it was not a good enough reason for replacing Ms Thornton as:

“the zoo community is small and it is inevitable that inspectors, zoo vets and zoo operators would occasionally have come across each other in a professional capacity which may have led to a difference of opinion or friction“.

The complaints of the claimant fall under three main heads and I will comment on them each in turn in paragraphs 57 to 86 below but I should explain that I did not understand Mr. Bates to wish to pursue in oral submissions the complaint that inadequate reasons were given in the decision letter. In my view, this criticism is doomed to failure and must be rejected because, as I have explained, the decision letter explains clearly and fully why DEFRA could not accept the representations of London Aquarium.

The issue of confidentiality

The case for the claimants is that DEFRA erred when considering “the claimant’s interest in protecting its commercially confidential information from disclosure to its competitors” . The way in which DEFRA dealt with this in the decision letter was by saying that:

“… the [1981 Act] itself requires during the inspection, the inspectors have access to all records kept by the operator in pursuance of conditions of the licence requiring conservation measures referred to in section 1A(f) to be implemented at the zoo, and the operator shall produce the records. In relation to records that may be deemed confidential it is our opinion that the zoo operator is still required to allow the inspectors access to them if the inspectors request that information from them. Refusal to do so could be seen as compromising the integrity of the inspection”.

As I understand it, the claimants do not take objection to these points but Mr. Bates’ criticism is based on the next paragraph in the decision letter which states that:

“It is our view that the zoo operator/zoo vet (depending on who owned the information) would only have a course of action with regard to breach of confidence if the zoo inspectors were to disclose or use the information without the zoo operator/ zoo vet’s permission, and only then if the operator/zoo vet had made the zoo inspectors aware that the information is confidential. As our zoo inspectors act on behalf of the local authority, and inspecting vet reports is part of the remit of the inspection, there should be no reason for them to use or divulge information to a third party. This being the case we do not see there is an issue with regard to the confidential information that may be seen as part of the inspection”.

The claimants contend that in reaching this decision, DEFRA did not consider properly the claimants’ interest in protecting its commercially confidential information from disclosure to its competitor. I am unable to agree because as was explained in the decision letter, disclosure or use of confidential information would only give rise to a cause of action if it was disclosed or used without the permission of the zoo operator or zoo vet and if the operator/zoo vet had made the zoo inspectors aware that the information was confidential. It must not be forgotten that the regulatory system set out in the 1981 Act enabled confidential information to be looked at by those inspecting under the system (see for example In Re Smith Kline & French Laboratories Ltd) [1990] 1 AC 64).

In my view, no justifiable criticism can be made of DEFRA’s response in the decision letter because the inspectors themselves and indeed any body who considers the inspectors’ reports would be bound by the common law duty of confidence so as to preclude the use or disclosure by them of any confidential information. The sanction would be a claim for a breach of the long established and well- known common law duty of confidence (see, for example, R v Department of Health, ex parte Source Informatics Ltd [2001] 1 QB 424).

The real issue between the parties is whether it was Wednesbury unreasonable for DEFRA to conclude that the common law duty of confidence provided an effective and permissible answer to the concerns and worries of the claimants relating to the confidentiality of information that the inspectors would see. In my view, such a claim by the claimants that DEFRA had acted in a Wednesbury unreasonable manner in this respect is incorrect for at least three different reasons.

First, the proposed inspector to whose appointment the claimants were objecting, namely Miss Thornton, was somebody about whom the claimants had stated that they have “never sought to cast any aspersions on the character of Miss Thornton, or suggest she would deliberately set out to misuse or improperly divulge the claimant’s confidential information”. The reality is, however, that an inspection in which Miss Thornton was the only “List I” inspector was likely to have resulted in her gaining knowledge of gaining secrets which she might find difficult or impossible to erase from her mind when carrying out her own research, advisory, nutritional, treatment and other responsibilities on behalf of IZVG. Mr Geach explains in his witness statement that she could not be expected to go down multiple blind alleys in her research when she already knew the answer from what she had seen at the Aquarium.

In my view the answer to this complaint is that any use by Miss Thornton of what she had ascertained during the inspection would be an actionable breach of confidence. Nothing has been suggested, let alone proved, either that there had been breaches of confidence in the past committed by the inspectors or that Miss Thornton was likely to commit such a breach or if such a breach was committed that a claim for breach of confidence would not provide an adequate remedy. I have concluded that these points show clearly that the Wednesbury challenge must be rejected.

A second reason why I cannot uphold the complaint that the decision letter was Wednesbury unreasonable was that in the letter of objection it was not being said by London Aquarium, as a statutory objector, that there could not in any circumstances be an inspection by Miss Thornton of that aquarium but that there would need to be “lengthy and costly preparation of confidentiality agreements.” In my view there is nothing wrong with the answers given in the decision letter which was that the duty of confidence owed by the inspectors would be enough to protect the claimants’ interests and so the letters referred to by the London Aquarium would not be required. In other words, the decision letter correctly and properly allayed the fears of London Aquarium, which related to the need for “ lengthy and costly preparation of confidentiality agreements” . It is significant that those concerns of London Aquarium were not that such agreements would not give adequate protection to the claimants.

A third and less potent point which undermines the challenge to the decision letter was that Miss Thornton was a member of a professional body whose professional integrity has not been challenged and it is realistic to assume that she would be a person who would act honourably.

Thus in my view there is no error in public law in the way in which the Secretary of State dealt with the objection on the confidentiality issue.

Failure to give adequate weight to the claimants’ position

The next criticism of the claimants is that DEFRA failed to give adequate weight or any weight to the interests to the claimants in protecting its confidential information from disclosure and that it gave undue weight to the countervailing factors which are said to be “the loss of profits to IZVG / Miss Thornton associated with not receiving fees for the inspection and the inconvenience to DEFRA having to make a new nomination and that costs payable to Miss Thornton would be reduced as she lived a convenient travelling distance away from London”.

I reject those criticisms for three reasons. First, in my view there is no justification in these criticisms as the duty of confidence owed to the claimants was given adequate weight in the decision letter as I have explained. It was not suggested in the decision letter that there had to be any balancing of the confidentiality claims of the claimants against any countervailing factors. Indeed the approach of DEFRA was that the confidentiality claims of the claimants had to be addressed as a discrete point and it was appraised and dealt with on that basis.

Second, it is well established that the weight to be given to any particular consideration is a matter for the decision maker and as long as the decision is not Wednesbury unreasonable a decision maker is entitled to give to any consideration as much or as little weight as he thinks appropriate (see Tesco v Secretary of State for the Environment [1995] 1WLR 759 especially at page 764 per Lord Keith of Kinkel with whom the other members of the Appellate Committee agreed). There is no basis for contending that DEFRA in its decision letter made a decision which was Wednesbury unreasonable.

Third, in any event there is no need for DEFRA to give any weight to the countervailing factors because the decision in this case was made on the basis that the law of confidence would give adequate protection to the claimants.

The Claimants’ case

The claimants contend that the decision under challenge should be quashed on the grounds of apparent bias which arises because, as I have explained, Mr Geach has been involved in acrimonious litigation with his former colleagues at the IZVG partnership. Miss Thornton is now a member of that partnership although she was not involved with IZVG or was not a partner of IZVG while Mr Geach was working with and for them.

Although the claimants do not consider Miss Thornton would be actually biased, they consider this to be a case of apparent bias. The reasoning of Mr Bates is that in the same way as justice must be “seen to be done”, so administrative acts ought to be seen to be untainted by improper conflicts of interest or other circumstances which might undermine confidence in the fairness impartiality of any administrative process.

He contends that justifiable concerns of the claimants concerning the appropriateness of the person contributing to the decision- making process are not removed simply because that person is not himself or herself the decision-maker where there was a risk of “infection” (see, for example, R v Governors of Sheffield Hallam University, ex parte R [1995 ] ELR 267, 284-285). He also points out that it is not an answer to concerns that the person in question would appear to be biased that this person was only one of a number of people performing the same duties together. He points out correctly that Inre Medicaments and Related Classes of Goods (No 2) [2001] 1WLR 700, apparent bias on the part of one member of the Restricted Practices Court was not rebutted by the fact that no apparent bias existed on the part of the other two members of that court.

So Mr Bates contends that there is no good reason why a different approach should be taken in the case of the appointment of an inspector under the 1981 Act. He said there is real importance in maintaining public confidence in the impartiality of the inspectors appointed to produce reports, which are likely to be crucial and frequently decisive in determining whether or not a licence under the 1981 Act is renewed.

DEFRA’ s Submissions

In response, Mr. Maurici contends that there is no apparent bias in the present case in the light of first the relationship between on the one hand Miss Thornton or IZVG and on the other hand the claimants and second the role which the Inspectors had to perform in this case.

Mr. Maurici submits correctly that the applicable principles which have to be applied in order to ascertain if a claim for apparent bias is made out are not in dispute and that they were summarised in this way by Lord Phillips M.R. when giving the judgment of the Court of Appeal in R ( on the application of PD) v West Midlands etc Mental Health Review Tribunal [2004] EWCA Civ 311 when he approved this formulation of the proper approach to a claim of apparent bias as being that:

Lord Phillips concluded that when considering apparent bias:

“… precedent can be helpful in focussing the mind on the relevant issues and producing consistency of approach. In a case such as the present, however, the search is for the reaction of the fair-minded and informed observer. The court has to apply an objective assessment as to how such a person would react to the material facts. There is a danger when applying such a test that citation of authorities may cloud rather than clarify perception. The court must be careful when looking at case precedent not to permit it to drive common sense out of the window.”

Discussion

In the present case, there is no dispute about the applicable principles but what is in issue is the application of them to the facts of this case. In my opinion “the fair minded and informed observer” would conclude that: there was not a real possibility that the Inspectors who would have included Miss Thornton as one of their number would be biased for the reasons which I now set out in no particular order of importance.

First, the role of Miss Thornton was not that of a decision-maker but as one of a team of advisers to Lambeth .There were four advisers nominated and Lambeth could always appoint more if it so wished. It is settled law that the fact that the inspector in question is not the actual decision-maker but is only an adviser is a relevant factor which undermines a claim of actual bias ( see R (Smith Kline Beecham) v ASA [2001] EWCA Admin 6 in which the previously stated views of an adviser who was not a decision-maker did not lead a fair-minded and informed adviser to conclude that there was a real danger of bias).

Second, although Mr. Geach and Miss Thornton were at least aware of each other and might have met as they were part of a small group of vets with special knowledge of aquatic animals. there was nothing to suggest that she or any previous Inspectors had allowed their loyalties to their employers (irrespective of whether they were IZVG or another entity) to interfere with their professional duties as an Inspector to act fairly.

Third, Miss Thornton like Mr. Geach is a qualified vet and a member of a highly respected profession, whose members are subject to strict ethical and professional standards which are upheld by a professional body. She was therefore subject to the high standards expected of a registered vet, who is subject to the discipline of a professional body . This would indicate to the fair –minded and informed observer that she would act fairly and honourably

Fourth, there was no objection when Mr. Greenwood of 1ZVG was appointed as an Inspector at The Deep Aquarium which was where the claimants had a contract with the aquarium operators even though Mr. Greenwood had been the main protagonist for IZVG during Mr. Geach’s dispute with that company. This fact would indicate to the fair-minded and informed observer that it is accepted that vets appointed as Inspectors would not allow the fact that a competitor was providing services to the aquarium under inspection to influence or adversely effect in any way their professional judgment or their use of information discovered during the inspection.

Fifth, there was no suggestion that Mr. Greenwood had acted in any way unfairly to the claimants when he performed his duties as an Inspector at the Deep Aquarium.

Sixth, it is important to realise that it was not the claimants that were being inspected but the London Aquarium and so that makes the connection between the claimants and IZVG even more remote.

Seventh, and I only mention this if I am wrong and if there was otherwise an apprehension of apparent bias, then that approach would be rebutted because the reason why Miss Thornton was selected was that there were only seven inspectors who were qualified to act as Part I Inspectors but, as I will explain, there would only be two possible appointees if the claimants’ submissions are sound. Of those seven possible appointees as inspectors, one was Miss Thornton, while another was Mr. Geach, who was obviously ineligible because of his association with the London Aquarium. Of the remaining five possible inspectors, one was Mr. Greenwood of IZWG in relation to whom there would be the same objections as Miss Thornton, another was a vet with whom Mr. Geach had fallen out during a previous inspection. DEFRA correctly contend that the claimants would have objected to any of these people being appointed as Inspectors. In addition another vet, who was a Part I inspector had carried out a previous inspection of London Aquarium and he was therefore ineligible to carry out the 2007 inspection of that aquarium.. In consequence there were only two vets who would be eligible to be appointed. Bearing in mind that DEFRA adopted a policy of rotation of inspectors, it would be almost impossible for there to be an inspector selected who did not satisfy the claimants’ test of being independent of IZWG This would mean that this, in Lord Phillips’ words in PD (supra at [11]), would be “an extreme case where it was impossible, or virtually impossible, to assemble a tribunal free of connections that might give rise to apprehension of apparent bias”

For all these reasons, the fair-minded and informed observer would be satisfied there was no real possibility that Miss Thornton, let alone the Inspectors collectively, would be biased even after taking account of past professional disputes between Mr. Geach and IZVG and which did not concern either London Aquarium or Miss Thornton.

I have concluded that none of the complaints relied on by the claimants either individually or cumulatively show that they are entitled to the relief claimed or to any relief. For all those reasons and notwithstanding the admirable submissions of Mr Bates, this application must be dismissed.