Astonquest Ltd, R (on the application of) v Ministry Of Agriculture, Fisheries & Food

The Court of Appeal held that it was appropriate to adjourn an application for permission to appeal where a closely overlapping preliminary reference to the European Court of Justice had been made by a court in another part of the United Kingdom.

The court emphasised comity and the avoidance of divergent treatment of identical Community law questions. Where another domestic court has sought an Article 177 reference, an English appellate court should normally await the outcome before deciding the same issue, unless the matter is acte claire.

The applicant sought permission to appeal from Moses J's refusal of judicial review of a Ministry decision allocating monthly fishing quotas to non‑producer organisation vessels. The issues included whether the Ministry's allocation discriminated against non‑sector vessels in breach of Article 40(3) of the Treaty of Rome.

While this application was pending a Scottish Sheriff referred similar questions to the European Court of Justice under Article 177. The Court of Appeal considered whether to make its own immediate reference or to adjourn pending the Scottish proceedings.

1. Disposition: The application for leave to appeal was adjourned pending the outcome of the Scottish proceedings and any Article 177 reference arising therefrom.
2. The Court emphasised the need for uniform interpretation of Community law across the United Kingdom. It noted the advantages of the ECJ in giving authoritative rulings and the importance of avoiding divergent domestic treatment of the same Community law issues.
3. The court declined to make an immediate reference to the ECJ in the circumstances. It held that it would be inappropriate to pre‑empt the Scottish court which had already decided to seek a preliminary ruling.
4. The court recognised an exception where the matter is acte claire. In such a case a reference may be unnecessary. The respondent's submission that the matter was acte claire was reserved and not decided finally at this stage.
5. The court gave liberty to both parties to apply to restore the application once the position of the Scottish Article 177 reference was finally and conclusively established. The outcome of the Scottish proceedings would strongly influence any resumed application.

• High Court (Queen's Bench Division, Crown Office List): Moses J refused judicial review on 23 February 1998. The decision addressed whether differential treatment of sector and non‑sector vessels was objectively justified and proportionate.
• Court of Appeal (Civil Division): Hirst LJ (with Aldous and Ward LJJ) adjourned the application for leave to appeal on 14 January 1999 pending the outcome of overlapping Scottish proceedings and any Article 177 reference.