Pembrokeshire Holdings Limited v Food Standards Agency

The Appellant is a food business operator which, trading as Euro Farm Wales, operates a slaughterhouse on the Withybush Trading Estate in Haverfordwest, Pembrokeshire (“the Premises”). On 25^th July 2023 and 20^th September 2023 respectively the Respondent served a Remedial Action Notice (“the RAN”) and a Hygiene Improvement Notice (“the HIN”) pursuant to the Food Hygiene (Wales) Regulations 2006 (“the FHWR”) on the Appellant. The notices were served as a consequence of concerns about the level of condensation in the Premises.

The Appellant appealed the notices to the Magistrates Court. The appeal was heard in September and October 2024. On 12^th December 2024 District Judge (Magistrates Courts) Layton handed down his judgment refusing the appeal and upholding the notices without modification.

The Appellant now appeals to this court by way of case stated. The Case Stated poses 18 questions for determination by this court. The full list of questions is set out in the appendix to this judgment together with answers flowing from the analysis I set out below.

The Appellant no longer contends that the notices were not effectively served; nor that they were invalidated by alleged deficiencies in the appointment of the relevant Official Veterinarians; nor that the RAN was not served as soon as reasonably practicable. As a consequence it is accepted that I am to answer question 1 in the negative and question 13 in the affirmative. Questions 10, 11, and 12 relate to the District Judge’s conclusions in respect of the consequences of the involvement and actions of the Official Veterinarians. The Appellant accepts that in light of the District Judge’s finding of fact that the enforcement decision was taken by the Veterinary Enforcement Decision Maker acting alone the lawfulness or otherwise of the actions of the Official Veterinarians is irrelevant to the validity of the notices. In light of that concession the parties are agreed that there is no need to address those questions.

The parties invited me to treat the remaining questions as concerned with three issues. As both Mr Jessop for the Appellant and Miss Griffiths for the Respondent said there is considerable overlap between the issues of risk and proportionality and also between a number of the questions. I have, however, treated the questions as relating to five issues because although questions 14 and 15 are closely connected with the District Judge’s approach to risk and proportionality they are properly to be seen as raising distinct issues. The issues, therefore, are:

The RAN alleged breaches of Regulation (EC) 852/2004 articles 3 and 4(2), Annex II Chapter IX point 3, and Annex II Chapter I point 2(b). The alleged contravention was described thus:

“On 18.07.23 at about 1pm, the plant OV observed that high amount of condensation was forming in multiple areas across the high-level fixtures in chiller 1 and chiller 2, more specifically at metal frames, line rails and ceiling, while beef carcasses meant for human consumption were moved and stored underneath, posing a risk of cross-contamination.

As incidents of the same nature occurred on 04/07/2023, 06/07/2023 and 12/07/2023, it is observed that this is an ongoing breach.”

The RAN required the Appellant to:

“Ensure that if condensation is formed in chillers 1 2, carcases (sic) are not stored underneath the areas of condensation and/or the condensation is removed promptly and at a frequency to prevent it from becoming a source of contamination for the carcases stored underneath.”

The HIN was issued in relation to “the design and construction of chiller number 1 and 2”. It said that the requirements of Regulation (EC) 852/2004 articles 3 and 4(2), and Annex II Chapter I point 2(b) were not being met for the following reasons:

“High amount of condensation formation has been observed by the plant OV on the ceiling, beams and rails in chiller numbers 01 and 02 on 25/08/23, 24/08/23, 23/08/23, 22/08/23, 18/08/23, 17/08/23, 16/08/23, 15/08/23, 11/08/23, 10/08/23, 09/08/23, 08/08/23, 04/08/23, 03/08/23, 02/08/23 and 25/07/23

Although the matter was verbally reported by the plant's Official Veterinarian to the Food Business Operator more recently on 15/05/2023 and written advice was previously sent on 21/12/2022, the problem has not been rectified within the agreed timescale. Therefore, this demonstrates an ongoing failure to ensure that the design and construction of chillers number 1 and 2 are such as to protect against the formation of condensation on surfaces.”

The HIN said that the following action was needed to comply with the Regulations:

“Investigate the root cause of condensation formation in chillers number 1 and 2 and take the necessary actions to prevent the formation of condensation; which could include increasing the chiller capacity and/or taking any necessary airflow controls, ventilation, and moisture reduction measures.”

Regulation 1 of the FHWR defined “the Community Regulations” as being EC Regulations 852/2004 and 853/2004 (together with other regulations which are not relevant for current purposes) “insofar as … they apply to food”. It defined “the Hygiene Regulations” as being the FHWR and the Community Regulations. The Community Regulations and Regulation (EC) 178/2002 are retained legislation following the departure of the United Kingdom from the European Union.

Regulation 6 of FHWR provided for the service of hygiene improvement notices thus:

“6.

—(1) If an authorised officer of an enforcement authority has reasonable grounds for believing that a food business operator is failing to comply with the Hygiene Regulations, the officer may by a notice served on that person (in these Regulations referred to as a “hygiene improvement notice”)—

(a)

state the officer's grounds for believing that the food business operator is failing to comply with the Hygiene Regulations;

(b)

specify the matters which constitute the food business operator's failure to comply;

(c)

specify the measures which, in the officer's opinion, the food business operator must take in order to secure compliance; and

(d)

require the food business operator to take those measures, or measures which are at least equivalent to them, within such period (not being less than 14 days) as may be specified in the notice.

(2)

Any person who fails to comply with a hygiene improvement notice will be guilty of an offence.”

Regulation 9 of FHWR provided for remedial action notices and the relevant parts of that regulation stated that:

Regulation 20 set out the right of appeal on receipt of a hygiene improvement notice or a remedial action notice. Regulation 22 provided that on such an appeal the court may cancel the notice in question or affirm it with such modification as the court thinks fit.

Regulation (EC) 852/2004 related to the hygiene of foodstuffs.

At article 2(1)(f) “contamination” was defined as meaning “the presence or introduction of a hazard” and article 2(2) provided that “the definitions laid down in Regulation (EC) 178/2002 shall also apply”.

Article 3 provided that:

“Food business operators shall ensure that all stages of production, processing and distribution of food under their control satisfy the relevant hygiene requirements laid down in this Regulation.”

Article 4(2) said that:

“Food business operators carrying out any stage of production, processing and distribution of food after those stages to which paragraph 1 applies shall comply with the general hygiene requirements laid down in Annex II and any specific requirements provided for in Regulation (EC) No 853/2004.”

Annex II set out “General Hygiene Requirements for all Food Business Operators” save where Annex I applied.

Chapter 1 of Annex II dealt with “General Requirements for Food Premises” save those covered by chapter III and the relevant parts of this chapter provided as follows:

“1.

Food premises are to be kept clean and maintained in good repair and condition.

2.

The layout, design, construction, siting and size of food premises are to:

...

(b)

be such as to protect against the accumulation of dirt, contact with toxic materials, the shedding of particles into food and the formation of condensation or undesirable mould on surfaces

...

5.

There is to be suitable and sufficient means of natural or mechanical ventilation. Mechanical airflow from a contaminated area to a clean area is to be avoided. Ventilation systems are to be so constructed as to enable filters and other part requiring cleaning or replacement to be readily accessible.”

Chapter II of Annex II set out specific requirements for rooms where foodstuffs were prepared, treated, or processed. At paragraph 1(c) it said:

“In rooms where food is prepared, treated or processed ... the design and layout are to permit good food hygiene practices, including protection against contamination between and during operations. In particular:

...

(c)

ceilings (or, where there are no ceilings, the interior surface of the roof) and overhead fixtures are to be constructed and finished so as ... to reduce condensation...”

Chapter IX of Annex II set out provisions applicable to foodstuffs and at paragraph 3 it said:

“At all stages of production, processing and distribution, food is to be protected against any contamination likely to render the food unfit for human consumption, injurious to health or contaminated in such a way that it would be unreasonable to expect it to be consumed in that state.”

Regulation (EC) 853/2004 laid down “specific hygiene rules for food of animal origin”.

By article 3(1) of Chapter II food business operators were required to comply with the relevant provisions of Annexes II and III. Article 4(1)(a) then provided that:

“Food business operators shall place products of animal origin F7... on the market only if they have been prepared and handled exclusively in establishments:

[a] that meet the relevant requirements of Regulation (EC) No 852/2004, those of Annexes II and III of this Regulation and other relevant requirements of food law;”

Chapter II of Annex III set out requirements for slaughterhouses and at paragraph 2(d) it said:

“To avoid contaminating meat, they must:

...

d)

have installations that prevent contact between the meat and the floors, walls and fixtures;”

Chapter IV of that annex addressed slaughter hygiene and included, at paragraph 11, the requirement that carcasses were not to come into contact with floors, walls, or work stands.

Under the heading “storage and transport” chapter VII provided that:

“Food business operators must ensure that the storage and transport of meat of domestic ungulates takes place in accordance with the following requirements.

...

(b)

During the chilling operations, there must be adequate ventilation to prevent condensation on the surface of the meat.”

Regulation (EC) 178/2002 laid down “the general principles and requirements of food law, established the European Food Safety Authority, and laid down procedures in matters of food safety.

The Claimant relied on the following definitions in article 3 of this regulation:

“(9)

‘risk’ means a function of the probability of an adverse health effect and the severity of that effect, consequential to a hazard;

(10)

‘risk analysis’ means a process consisting of three interconnected components: risk assessment, risk management and risk communication;

(11)

‘risk assessment’ means a scientifically based process consisting of four steps: hazard identification, hazard characterisation, exposure assessment and risk characterisation;

(12)

‘risk management’ means the process, distinct from risk assessment, of weighing policy alternatives in consultation with interested parties, considering risk assessment and other legitimate factors, and, if need be, selecting appropriate prevention and control options;

(13)

‘risk communication’ means the interactive exchange of information and opinions throughout the risk analysis process as regards hazards and risks, risk-related factors and risk perceptions, among risk assessors, risk managers, consumers, feed and food businesses, the academic community and other interested parties, including the explanation of risk assessment findings and the basis of risk management decisions;

(14)

‘hazard’ means a biological, chemical or physical agent in, or condition of, food or feed with the potential to cause an adverse health effect;”

Section 1 of the regulation addressed the “General Principles of Food Law” and article 6 dealt thus with risk analysis.

“1 In order to achieve the general objective of a high level of protection of human healthand life, food law shall be based on risk analysis except where this is not appropriate to thecircumstances or the nature of the measure.

2 Risk assessment shall be based on the available scientific evidence and undertakenan independent, objective and transparent manner.

3 Risk management shall take into account the results of risk assessment, and ... otherfactors legitimate to the matter under consideration and the precautionary principle where the conditions laid down in Article 7(1) are relevant, in order to achieve the general objectivesfood law established in Article 5.”

At Chapter 2 section 4 the regulation set out the “General Requirements of Food Law” and under the heading “food safety requirements” article 14, paragraphs 3(a) and 5 said:

“(3)

In determining whether any food is unsafe, regard shall be had:

(a)

to the normal conditions of use of the food by the consumer and at each stage of production, processing and distribution, and

...

(5)

In determining whether any food is unfit for human consumption, regard shall be had to whether the food is unacceptable for human consumption according to its intended use, for reasons of contamination, whether by extraneous matter or otherwise, or through putrefaction, deterioration or decay.”

The District Judge began his judgment by setting out the background. He then addressed an issue as to the burden of proof concluding that the burden of proof on the contested issues lay on the Respondent.

The Appellant had advanced a number of grounds of appeal in its appeal to the Magistrates’ Court but for current purposes only grounds 6, 9, and 10 are relevant.

In ground 6 the Appellant had contended that the notices should be set aside because there was no risk and the decision to issue them had not been proportionate. The District Judge addressed risk and proportionality separately.

In dealing with risk the District Judge set out the terms of the RAN and the HIN. He then summarized the evidence he had received thus:

“47.

The court received expert evidence on this point. Mr Peter Hewson, expert for the appellant, said that condensation is not a contaminant unless it has become contaminated. He states paragraph 8 of his report that ‘The slaughterhouse environment is conducive to the production of condensation which can be a concern for regulators who assume it to be a hazard even though there is no scientific data to support that assumption.’ He referred the court to what appears to be the only scientific study on the risk associated with condensation in slaughterhouses namely Brashears et al, Meat Science 2001. The study, he explained, concluded that condensation does not appear to carry microbial loads such as will contaminate the product. His report at paragraph 10 reads: ‘That condensation is a frequent and an inevitable occurrence in food premises has resulted in legislation that does not prevent condensation but requires premises to be designed to protect against the formation of condensation...Thus, there is an acceptance that condensation will occur, but food business operators are required to minimise it’. He concluded that ‘condensation is common in food business and is not a significant risk to public health’. In his evidence Mr Hewson said that ‘condensation should be controlled as a failure to do so could allow some pockets of pathogens in part of the establishment’.

48.

The expert called by the respondent, Ms Frances Merino, said that over the period August 2022 to January 2024 there was a high level of condensation observed in the chillers at the premises and that despite efforts to reduce the condensation it persisted. She said it was important to control condensation as if not it would be possible for the bacteria to increase or create a harbourage site for a particular microorganism (as noted by Bashear et al). She said the concern is that its continued presence ‘may foster the proliferation of bacteria and the formation of undesirable moulds’. She went on to say that any condensate dripping from an unclean ceiling could pose a risk of cross contamination. She said that she agreed with Mr Hewson that the risk of physical and chemical contamination from condensation was low but maintained that it is still theoretically possible. She disagreed with the suggestion that the risk was negligible. She agreed that a potential solution to the condensation problem would be more space between carcasses or less carcasses being processed at the site. When it was suggested to her that the regulator could have imposed one or both of these potential solutions, she said it was the responsibility of the FBO to implement this.”

The District Judge’s reasoning and conclusion followed in these terms;

“49.

The appellant submitted at some length that condensation does not present a risk and that the limited scientific data supports that position. However, the regulations clearly guard against excessive levels of condensation. The only plausible explanation for this is the risk that condensation may cause when it makes contact with a surface containing a contaminant which is hazardous, and then comes into contact with meat products.

50.

I accept the expert evidence of Ms Merino that such a risk is not negligible. I cannot accept the appellant’s submission that condensation does not present anything other than a negligible risk to human health. There was clear evidence before the court that there were high levels of condensation, and that this condensation was dripping onto carcasses that were entering the food chain. Occasionally carcasses would be trimmed where condensation had been seen to have fallen onto them.

51.

Having received evidence from the OVs, the VEDM and the expert called by the respondent I find that the respondent has established to the requisite standard of proof than the levels of condensation in the chillers falling onto the carcasses presented a risk to human health. The appellants could have addressed this by reducing the number of carcasses being processed every day or by leaving greater gaps between the carcasses. I do not accept the appellant's submission that the regulator should have imposed this on the FBO. The FBO had a clear responsibility to address the issue itself. The implementation of a cleaning programme and engagement of a staff member to squeegee the affected areas was insufficient. Whilst longer terms steps were being taken to address the issue, such as the construction of new chillers and arranging for engineers to undertake site visits, the VEDM clearly felt the situation could not be left in the short to medium term and I accept the evidence presented that the risk remained despite the cleaning regime and ventilation system implemented to address it.”

In dealing with proportionality the District Judge summarized the evidence he had received from the Official Veterinarians and from a veterinary auditor. He then set out his conclusion saying at [57]:

“From the evidence before the court, it was clear that the appellants' efforts to control condensation were not containing it to an acceptable level. There were genuine concerns about the risk this presented to the public through condensation becoming contaminated and dripping on carcasses and entering the food chain. Discussions had taken place, but the problem continued. Steps had been implemented but this did not adequately resolve the issue. Every opportunity had been afforded to the FBO to protect against condensation to no avail. I am firmly of the view that the service of the notices was proportional and that taking this step at this time did not offend the enforcement hierarchy.”

Ground 9 had related to the effect of the initial approval of the premises by the Respondent and the District Judge addressed this at [61] thus:

“Ground 9 invites the court to cancel the RAN. The RAN alleges the layout, design and construction of the premises is not such as to protect against condensation, but the premises were approved by the FSA who have a continuing duty to consider this approval and as that approval remains current the breach cannot have occurred. I do not accept this argument. These are distinct matters and does not invalidate the notice. This ground is rejected.”

At [62] the District Judge dealt shortly with ground 10 saying:

“Ground 10 is based on the requirement in the RAN that the FBO to remove (sic) condensation or prevent condensation whereas the legal position is to protect against condensation. The RAN in para 4 under heading ‘Action/measures to be taken by the Food Business’ reads: ‘Ensure that if condensation is formed chillers 1 & 2, carcases (sic) are not stored underneath the area of condensation and/or the condensation is removed promptly and at a frequency to prevent it from becoming a source of contaminant for the carcasses stored underneath.’ The RAN is clearly requiring the FBO to protect against condensation and the RAN is legally compliant.”

Finally, the District Judge turned to the abuse of process argument. He said:

The District Judge annexed his judgment to the Case Stated and listed his findings of fact together with the 18 questions which I have appended to this judgment and, where relevant, below.

The District Judge addressed risk in his judgment at [46] – [51] and the issue is dealt with in questions 4, 5, and 6 thus:

“(iv)

Whether my assessment of risk was wrong in law;

(v)

Whether I erred in law in affirming the notices if, as is alleged, there was no food safety risk;

(vi)

Whether I was wrong when assessing risk to food safety when there was no evidence before the court that the carcasses intended for the human food chain were to be consumed raw;”

It is necessary to remember that the breaches alleged in the RAN were of regulation (EC) 852/2004 Annex II Chapter I paragraph 2(b) and of Annex II Chapter IX paragraph 3 and articles 3 and 4(2) and in the HIN of Annex II Chapter I paragraph 2(b) and articles 3 and 4(2).

Mr Jessop’s argument for the Appellant was based on the fact that the requirement in chapter IX paragraph 3 was that food was to be “protected against any contamination” which was likely to have particular consequences. He said that regulation (EC) 852/2004 was to be read in the context of the rules of Food Law generally and in particular of regulation (EC) 178/2002. It is correct that article 2(2) of regulation (EC) 852/2004 provides that the definitions in 178/2002 apply to 852/2004.

Mr Jessop submitted that because contamination was defined as meaning “the presence or introduction of a hazard” account had to be taken of the definition of “hazard” in 178/2002 as being the presence of an agent in or condition of food “with the potential to cause an adverse health effect”. In addition, Mr Jessop submitted that there had to be regard to the definition of “risk” in 178/2002 as being concerned with the probability of adverse health effects following from a hazard.

The consequence of those matters was, Mr Jessop submitted, that for a breach of the chapter IX paragraph 3 obligation to be established it was necessary to show that there was the potential for an adverse health effect. This was because without such a potential there was no contamination.

Mr Jessop also contended that the latter part of chapter IX paragraph 3 was significant. That referred to contamination such that it would be unreasonable for the food to be consumed in that state. Mr Jessop submitted that this was significant because here the condensation was affecting meat carcasses and the meat would not be eaten raw.

Finally, Mr Jessop said that the chapter I paragraph 2(b) obligation was also to be read in the context of Food Law and of regulation (EC) 178/2002 with the consequence that condensation which did not give rise to contamination was not caught by that provision.

I do not accept those contentions for the following reasons.

The last of the contentions can be dealt with shortly. The terms of chapter I paragraph 2(b) are clear. The requirement is for the layout, design, construction, siting, and size of premises to be such as to protect against a number of matters including the formation of condensation. There will be a breach of that provision if the layout, design, and the other elements do not in fact protect against the formation of condensation. There is no implicit provision that there is only a breach if there is also contamination. This follows from the wording of the provision in circumstances where there is no need to imply the further provision. It also accords with the purpose of the legislation because, as I will explain further below, although condensation is not itself contamination it creates the potential for contamination and can lead to a risk of contamination.

The crux of the Appellant’s argument in relation to the chapter IX paragraph 3 obligation was that there was only a breach if contamination was present. As Mr Jessop and Mr Kingham put it in their skeleton argument “there can be no breach without evidence of contamination”. The flaw in this contention becomes clear when regard is had to the terms of the regulation and the nature of the obligation. The obligation is to protect against contamination. A requirement to protect against a particular state of affairs, here contamination, is a different obligation from one requiring the prevention of that state of affairs. Where there is an obligation to prevent a state of affairs there will only be a breach if the state of affairs occurs. However, where there is an obligation to protect against a state of affairs there can be a breach of that obligation if no steps have been taken to protect against the state of affairs arising. The absence of protection or of adequate protection can be a breach even if the state of affairs to be protected against has not come about. In the current context there can be a failure to protect against contamination even if contamination has not yet occurred. The presence or absence of contamination may very well be potent evidence either that adequate protective steps have not been taken or that they have been. Nonetheless, the issue is not whether contamination is present but whether the food business operator in question has protected the food against contamination. This analysis flows from reading the language used in context. It also accords with the approach taken by the Divisional Court in Kothari v London Borough of Harrow [2009] EWHC 1354 (Admin) which I will consider below.

In assessing whether a food business operator has protected food against contamination it is necessary to consider what is the risk of contamination occurring in light of the arrangements which the food business operator has put in place. In this context the reference to “risk” is to that term in a non-technical sense and as equivalent to “potential”. The fact that “risk” is a defined term for particular purposes in regulation (EC) 178/2002 does not preclude the use of the term in a non-technical sense here. The reference to risk in 178/2002 is concerned with looking at the combined result of the likelihood of an adverse health effect from a hazard and the severity of that effect if it eventuates. In that context the term is concerned with the effects of a hazard. That provision and the use of risk in that context does not assist in the exercise of interpreting a provision designed to prevent a hazard from arising in the first place.

It follows that when a court is considering whether food is being protected against contamination it is appropriate to consider what risk, in the non-technical sense, there is of contamination in light of the arrangements the food business operator has put in place. That was the approach which the District Judge adopted here. He assessed whether there was a more than negligible risk of contamination in the circumstances of the Appellant’s arrangements. In that regard it is of note that the case which was put on behalf of the Appellant to the Respondent’s expert witness was that the risk of contamination was negligible. The District Judge accepted that condensation did not, of itself, amount to contamination but went on to consider whether the degree of condensation present in the Premises gave rise to a risk of contamination. That was an entirely appropriate course to take. Such an approach is consistent with the obligation under chapter 1 paragraph 2(b) which deals with matters which are not necessarily themselves contamination, in the sense of the presence of a hazard, but which are matters which can give rise to a risk of contamination.

It follows that whether the presence of condensation demonstrates that there was a failure to protect against contamination will depend on the extent to which the level of condensation present gives rise to a risk of contamination. Here, the District Judge heard expert evidence. Having done so he accepted that in the particular circumstances of the Appellant’s operation and of the Premises the level of condensation gave rise to a risk of contamination which was more than negligible and which demonstrated a failure to protect against contamination. That approach was correct in law and resulted in the District Judge reaching a conclusion which was properly open to him.

For the Appellant, Mr Jessop sought to rely on the decision in Kothari. However, on a proper analysis that decision supports the approach I have set out above and which was adopted by the District Judge.

In that case the Divisional Court was concerned with an offence under the English regulations corresponding to the FHWR. The breach there was said to consist of a breach of the requirement in annex II chapter 1 paragraph 5 of regulation (EC) 852/2004 that “there is to be suitable and sufficient means of natural or mechanical ventilation”. The offence was said to have been committed in the course of the operation of a restaurant and the operators of the restaurant were appealing against their conviction for a breach of that requirement. Roderick Evans J (with whom Keene LJ agreed) analysed the magistrates’ findings and concluded, at [23], that it was implicit in the Case Stated that the justices had found that the kitchen in question was adequately ventilated by the extractor system in use. That led to the quashing of the convictions as the judge explained in the following terms at [28]:

“The provisions of these Regulations are preventative and prosecutions for alleged breaches of them do not have to wait until food hygiene has been compromised. However, it is necessary for the prosecution to prove that the deficiencies which they allege amount to breaches of the Regulations. Here the justices expressly found that despite the existence of grease staining outside the premises the kitchen was adequately ventilated and there was no evidence of a food hygiene hazard or contamination. In the light of these findings it was not open to the justices to conclude that the extractor system was not ‘suitable and sufficient’ for the purposes of these Regulations…”

If it stood alone the reference to there being “no evidence of a food hygiene hazard or contamination” might be seen as support for Mr Jessop’s contentions. However, that reference does not stand alone and it has to be seen in the context of the paragraph as a whole and, in particular, of the first sentence. Those opening words are significant and accord with the interpretation I have set out above. In that passage Roderick Evans J expressly said that the regulations were preventative and that there could be a breach even if food hygiene had not yet been compromised. It is clear when the paragraph is read as a whole that if the magistrates had found that the kitchen was not adequately ventilated the convictions would have been upheld even in the absence of a food hygiene hazard or contamination. That would have been because in such circumstances there would not have been suitable and sufficient means of ventilation. Similarly, in the circumstances of the current case a failure to protect against contamination would amount to a breach of the regulations even if contamination had not yet occurred.

Mr Jessop also relied on the final part of the chapter IX paragraph 3 provision which referred to food being “contaminated in such a way that it would be unreasonable to expect it to be consumed in that state”. His argument was that because any condensation would only affect raw carcasses and because the meat would not be eaten raw it would not be consumed in that state and so there was no breach of this provision.

I do not accept this reading of this provision. When read properly chapter IX paragraph 3 is referring to the need to protect against contamination which is likely to have any one of three effects:

The use of “or” before contaminated in the provision demonstrates that the list is of distinct states and that the protection is to be against contamination giving rise to any one of those states. The food being contaminated in such a way that it would be unreasonable for it to be consumed in that state is a state different from that of being unfit for human consumption and of being injurious to health. The “state” referred to in the last element is the state of contamination. That part of the provision is addressing circumstances in which the contamination does not render the food unfit for human consumption or injurious to health but where it has the effect that, whether for reasons of seemliness or otherwise, it would be unreasonable to expect it to be consumed in light of fact of the contamination. Accordingly, it does not assist the Appellant to say that the carcasses would in due course be cooked.

It is appropriate to stand back and look at this aspect of the matter in the round. It is necessary to remember that the regulations are penal provisions and account is to be taken of that in their interpretation. Nonetheless, the position was that it was common ground before the District Judge that the condensation did not itself constitute contamination because it was simply water. However, it was also common ground that it could provide a mechanism whereby contaminants were transferred to the carcasses. Here, large amounts of condensation were present and condensation was dripping on to the carcasses. The District Judge was entitled to accept the evidence that this gave rise to a risk of contamination and to find, as a consequence, that there had been a failure to protect against contamination.

It follows that in this regard the District Judge’s approach to risk was correct in law and that the findings he made were properly open to him.

This topic was addressed in the judgment at [52] – [58] and was covered thus in questions 7, 8, 9, 16, and 17:

“(vii)

Whether I was in error in failing to have regards to whether the breaches alleged in the notices were made out and whether the measures to be taken were capable of remedying the alleged breaches;

(viii)

Whether I erred when I concluded, in respect of the RAN, that the appellants could have addressed any risk in ways other than that which was required at section 4 of the notice;

(ix)

Was my approach to proportionality and the decision to issue both the RAN and the HIN correct;

(xvi)

Did I fail in fully taking into account the extent to which the Food Business Operator had complied with the HIN before it was served;

(xvii)

Did I err in failing to take into account the fact that the HIN was issued 56 days after the originally served notice;”

It was common ground before the District Judge and before me that it was necessary to consider the proportionality of issuing the notices. The approach to be taken is that set out by Lords Reed and Toulson in R(Lumsdon) v Legal Services Board [2015] UKSC 41, [2016] AC 697 at [33] namely that:

“Proportionality as a general principle of EU law involves aconsideration of two questions: first, whether the measure in question issuitable or appropriate to achieve the objective pursued; and secondly,whether the measure is necessary to achieve that objective, or whether it could be attained by a less onerous method. …”

Before the District Judge, although there was some reference to the terms of the notices, attention was focussed on the issue of whether it was proportionate to issue the notices and it was that question which the District Judge addressed in his judgment. Before me the Appellant placed rather more weight on the terms of the notices and on criticism of the measures it was required to undertake. The proportionality of the act of issuing the notices and the proportionality of the measures required by the notices are very closely related questions. Determining whether it was proportionate to issue the notices will at least potentially require consideration of the measures which the notices required the Appellant to undertake.

The Appellant based its argument on proportionality principally on the same argument as I have considered above in relation to risk. The contention was that there was no breach unless there was in fact contamination; that there was no evidence of actual contamination in this case; and that it was, accordingly disproportionate to issue the notices. I have explained above why it was not necessary for there to be evidence of actual contamination and the proportionality attack based on the same contention fails for the same reason. The District Judge was entitled to conclude that the high levels of condensation gave rise to a risk of contamination. It follows from that conclusion that it was likely to be proportionate to issue the notices. The answer to whether it was in fact proportionate is found in the District Judge’s analysis at [57] of his judgment. The judge found that the Appellant’s efforts to remedy the problem had not been effective and that the Appellant had been given “every opportunity” to protect against condensation. In light of that finding the conclusion that it was proportionate to issue notices under the FHWR was unimpeachable.

The question then becomes one of whether it was proportionate to issue the notices in the particular terms of the RAN and the HIN. To answer that it is necessary to consider the proportionality of the measures which the notices required the Appellant to undertake.

The RAN required the Appellant to ensure that:

“if condensation is formed in chillers 1 2, carcases (sic) are not stored underneath the areas of condensation and/or the condensation is removed promptly and at a frequency to prevent it from becoming a source of contamination for the carcases stored underneath.”

It cannot realistically be suggested that it was disproportionate to require the Appellant to take action of that kind.

I will deal with the precise terms of the HIN below and, as explained there, some modification of the wording is required. It is, however, of note that the HIN does not specify the measures to be taken but instead gives examples of the steps which could be taken to achieve the required result. When modified in the respect I will explain below the terms of the HIN are not even arguably disproportionate.

Mr Jessop referred to [48] and [51] where the District Judge noted that the problem could have been addressed by reducing the number of carcasses being processed or by leaving greater gaps between the carcasses. He submitted that this showed that the terms of the notices were disproportionate because a different and, he submitted, less onerous method could have been used to address the problem. I do not accept that contention. The existence of an alternative way of addressing the problem will only make the requirements imposed in notices under the FHWR disproportionate if that alternative method is clearly less onerous than that required in the relevant notice. That is not the position here. Reducing the number of carcasses processed or leaving greater gaps between them are not self-evidently less onerous steps than those required by the notices. As Miss Griffiths pointed out a reduction in the number of carcasses processed would inevitably have had an adverse impact on the productivity and so the profitability of the Appellant’s operation. It was not disproportionate for the notices to require action which would involve the Appellant in expenditure but which would not affect the number of carcasses which could be processed in the Premises.

As I will explain below the District Judge was right to say that the Respondent’s approval of the design, layout, and construction of the Premises was not a ground for challenging the notices. Nor was it a factor rendering the measures required disproportionate in light of the finding that high levels of condensation were present.

The District Judge took account of the steps which the Appellant had taken. He had expert evidence which addressed the state of affairs from August 2022 to January 2024. It follows that he had evidence of the effect of the Appellant’s actions both before and after the issue of the notices. Against the background of that evidence the District Judge was entitled to find as a fact that the measures which the Appellant had taken had been ineffective and to regard this as relevant to the proportionality of the further measures which were required by the notices.

Question 17 related to the fact that the HIN on which the Respondent relied was a replacement for one which had been issued contemporaneously with the RAN. Rightly, it was not suggested before me that the District Judge erred in addressing the later iteration of the HIN nor in taking no account of the interval of timing.

Accordingly, the District Judge’s approach to the question of proportionality was correct in law and the findings which he made in applying that approach were properly open to him.

The District Judge had dealt with this topic in the judgment at [61] and he formulated question 14 in these terms to address it:

“(xiv)

Was I correct in ruling that the regulatory and statutory approval of the slaughterhouse based upon its design, layout and construction did not invalidate the RAN and the HIN which alleged that the breach was caused by failures in the layout, design and construction of the premises;”

The Respondent had approved the design, layout, and construction of the Premises. The District Judge was right to treat this as a distinct exercise which did not affect the validity of the notices. The facts of the original approval by the Respondent and the subsequent failure to revoke such approval are potential evidential or forensic points in favour of the Appellant’s challenge to the notices but no more than that. It was open to the Appellant to refer to those matters when challenging the Respondent’s evidence and in argument. The contention would be that the approval showed that the Respondent was mistaken in saying that there had been a breach of the requirements of the regulations. The relevance of those matters did not extend beyond that and did not impact on the lawfulness or proportionality of the notices. If the District Judge concluded, as he was entitled to do, that there had been a failure to protect against contamination and that the layout, design, construction, siting, and size of the Premises were in fact not such as to prevent against the formation of condensation neither the earlier approval nor the failure to revoke it invalidated the notices. It is conceivable that the earlier approval could in some cases be relevant to proportionality if, for example, the Food Standards Agency had changed its stance at short notice and without giving a food business operator an opportunity to resolve matters. That was not the position here where the problems had been longstanding and where the District Judge found that the Appellant had been given “every opportunity” to address the position without the issue of notices.

The District Judge’s conclusion on this issue was set out at [62] and was addressed thus in question 15:

“(xv)

Was I correct in ruling that the HIN was not [in]valid because it required the ‘prevention of condensation’ whereas the law required only that condensation is removed if formed or reduced;”

There is some confusion in [62] between the terms of the RAN and those of the HIN. The measures to which the District Judge refers are indeed those set out in the RAN. However, the reference to taking “the necessary actions to prevent the formation of condensation” is to be found in the HIN.

The obligation on the food business operator under annex II chapter 1 paragraph 2(b) is that the layout, design, construction, siting, and sizing of the relevant premises are to be “such as to protect against … the formation of condensation”. As I explained above there is a difference between an obligation to protect against a particular state of affairs and an obligation to prevent that state of affairs. On one view the obligation to protect against is more onerous than that to prevent because there is only a breach of the latter if the state of affairs in question occurs. However, there is scope for a different view on the basis that it is potentially arguable that if appropriate measures have been taken to protect against the state of affairs there is no breach even if those measures ultimately turn out to be insufficient. I need not determine which of those views is correct and much would depend on the terms of any particular regulations and the particular factual circumstances. It suffices for current purposes to note that the HIN should refer to the “protect against” obligation because that is the obligation derived from the provision, annex II chapter 1 paragraph 2(b), which is invoked by the HIN.

Accordingly, the HIN is to be modified pursuant to regulation 22(1) by the replacement in section 3 of the word “prevent” by the words “protect against”. So modified the HIN is entirely unexceptionable.

The Appellant’s abuse of process argument was covered at [83] to [86] and following of the judgment and in questions 2 and 3 in these terms:

“(ii)

Whether I correctly approached the question as to whether there had been an abuse of process because of alleged failures in therespondent's duty to disclose or its duty of candour;

(iii)

Whether I was correct in ruling that the appellant could have a fair trial;"

In the course of closing submissions at the hearing below the Appellant raised the issue of whether the notices had been properly served. The Respondent sought and obtained permission to adduce further evidence on this point. This evidence consisted of further statements from some witnesses who had already provided evidence and a statement from a witness who had not previously provided a statement. The Appellant was given an opportunity to require these witnesses to attend for cross-examination but declined to do so. The Appellant did, however, say that the evidence of Ms Grapligia and Ms Chaloupska showed that the decision to serve the notices had not been taken by the Veterinary Enforcement Decision Maker, Mr Gabaldon, acting alone. The District Judge rejected that contention and there is no appeal in that regard. However, the Appellant went on to contend that the contents of those witnesses’ statements showed that the Respondent had failed in its duty of candour. It then said that this meant there had been an abuse of process on the part of the Respondent and that the District Judge should cancel the notices as a consequence.

The Appellant’s argument before me started from the proposition that the Respondent owed a duty of candour. In that regard the Appellant relied on my decision in the case of Total Sprint Ltd v Swale BC [2023 EWHC 2968 (Admin), [2024] 1 WLR 1687 and on an analogy with the duty of candour owed by a public body whose decision is challenged in judicial review proceedings. The Appellant said that in order properly to fulfil that duty the Respondent should have carried out a disclosure review, namely a review of the material in the case with a view to disclosing it to the Appellant. It said that the fact that further material (in the form of the contents of the additional witness statements) was adduced at a late stage in the proceedings indicated that the Respondent had not carried out a disclosure review (or had not done so properly). It was then said that this failure was a breach of the duty of candour and, as such, was an abuse which was fundamental and which caused the fairness of the proceedings to be harmed irredeemably. Next, the Appellant contended that the District Judge’s response to this failure should have been to allow the Appellant’s appeal. Elegantly though it was advanced by Mr Kingham, this argument was misconceived in a number of respects for the following reasons.

The decision in Total Sprint was made on a case stated appeal. That had arisen from a case in which the respondent, as the billing authority for non-domestic rates, had caused summonses to be issued without disclosing that it had previously obtained liability orders against a different company in respect of the same premises for an overlapping period of time. At [101] I explained that a person seeking to cause a court to issue a summons owed a duty of candour to the court and was obliged to disclose matters which might cause the court not to issue the summons. The nature of the proceedings and the basis on which the summons was being sought would be relevant both as to what should be disclosed to the court and as to the consequences of any breach (see at [102]). I also explained that when, in the course of proceedings in the magistrates’ court, an issue arises as to the defendant’s liability then fairness requires the party seeking an order based on that liability to disclose material potentially favourable to the defendant or adverse to the making of the order (see at [92] and [109]). A failure to make proper disclosure will not normally amount to an abuse of process. Instead, such a failure will normally be capable of being addressed in the course of the proceedings by way of granting adjournments to consider further material; by way of making costs orders; or by other procedural steps (see at [92] and [110]). A failure of disclosure will only warrant a stay of proceedings if it is not possible for the party resisting the order to have a fair trial despite measures of that kind being taken. Different considerations arise if there is an abuse of process arising from failings on the part of a prosecutor (or person in an equivalent position) which are such that it is contrary to the court’s sense of justice or propriety to continue with the proceedings (the limb 2 category of abuse derived from R v Maxwell [2011] 1 WLR 1837) but it is not suggested that this is such a case.

It is significant that the matter was before the District Judge on the Appellant’s appeal against the notices. That appeal was brought pursuant to regulation 20 of the FHWR and had been initiated by the Appellant’s making of a complaint. In those circumstances the Appellant was right to place emphasis on the analogy with the duty of candour owed by a public body whose decision is challenged in judicial review proceedings. It is that, rather than the situation considered in Total Sprint, which provides the closer analogy and the most assistance. Such a body must disclose material which assists the claim (in this case the appeal to the magistrates) or undermines the defence (here the resistance to the appeal). Thus, the Respondent had to disclose such material. Although such a body (and here the Respondent) must take steps to consider whether there is such material it is the failure to disclose material and not any deficiency in the review which can amount to a breach of the duty of candour. The existence of the duty does not, however, mean that a failure to make such disclosure can be relevant to the finding as to the validity or otherwise of the notices. Such a failure would not be a basis for allowing the appeal and setting aside the notices if they were otherwise valid. This can be seen by reference to the approach in judicial review proceedings. The courts regard a breach of the duty of candour in such proceedings as a serious matter but it will not result in an otherwise lawful and rational decision being overturned. Such a failure can result in sanctions by way of costs against the non-disclosing public body and those can be accompanied by an adjournment to enable consideration of the material. Those sanctions do not, however, include the quashing of a lawful decision. At most a failure of disclosure may warrant the court drawing inferences favourable to the party challenging the decision or adverse to the non-disclosing public body but it will not have any further effect. It follows that even if there had been a failure of disclosure here it would not have warranted the District Judge in allowing the appeal.

There are two further difficulties facing the Appellant’s contentions in this regard. The first is that in light of the District Judge’s factual findings there was no breach of the disclosure obligation here. The additional statements were adduced to address the question of service. The Appellant sought to argue that they assisted its case on the different question of whether the decision to issue the notices had been taken by Mr Gabaldon acting alone. The District Judge considered that argument and concluded, at [89], that the further statements were “not at odds with” the earlier evidence and that they did “not undermine [Mr Gabaldon’s] evidence in any way”. Those were conclusions reached by the District Judge flowing from his assessment of the evidence. The existing evidence showed that Mr Gabaldon had made the decision on the basis of evidence provided to him by others. The District Judge concluded that the new material showed nothing more than that. Those conclusions are incompatible with the Appellant’s contention that there was a breach of the duty of disclosure. The obligation was to disclose potentially adverse material. The obligation is a broad one and it is enough for the material to be only potentially adverse. It includes material which might turn out ultimately not to be adverse or in respect of which the adverse effect is displaced by other evidence. Here, however, the District Judge indicated that the further statements did not have even that effect. The findings that the statements were not at odds with the other evidence and that they did not undermine Mr Gabaldon’s account “in any way” show that they did not fall into the category of matters which should have been disclosed. The material did form the basis for an argument by the Appellant but it was an argument which was dismissed in robust terms as misconceived. There was no obligation to disclose material which replicated the evidence already given nor which could only form the basis for a misconceived argument.

Finally, even if the Appellant’s argument that there had been a failure of disclosure were to be accepted such a failure did not lead to any unfairness here in light of the steps which the District Judge took to address the position. The Appellant was given the opportunity to have the witnesses called and for them to be cross-examined but declined that offer. The Appellant did make submissions as to the effect of the contents of the witness statements. The District Judge addressed those submissions on their merits and concluded that they had no substance. This was a classic example of the way in which the consequences of alleged deficiencies in disclosure can be addressed in the course of the trial.

It follows that there is no substance in this aspect of the appeal and both these questions are to be answered in the affirmative.

The effect is that the RAN and the HIN are both affirmed subject to the modest modification of the wording of the HIN which I have set out above.