Bloomsbury International Ltd & Ors v Sea Fish Industry Authority & Anor

A statutory levy provision may define both the persons liable and the goods or transactions in respect of which liability arises. Its meaning must be determined from the legislation as a whole, including its statutory purpose, related provisions and amendments.

The term “landed” in the Fisheries Act 1981 could include sea fish and sea fish products brought into the United Kingdom after being landed abroad. A levy calculated by reference to a first sale was not a charge having equivalent effect to a customs duty where the same chargeable event and marketing stage applied to domestic and imported products.

Private restitutionary claims could proceed by ordinary action where the claimant asserted private law rights and sought only monetary relief. Claims for mistaken payments made more than six years before proceedings were barred, and the recipient established a change-of-position defence.

The claimants, importing companies in the United Kingdom sea fish industry, challenged levies imposed by the Sea Fish Industry Authority under the Fisheries Act 1981 and the Sea Fish Industry Authority (Levy) Regulations 1995.

They sought restitution of levies paid, contending that the statutory scheme did not authorise levies on fish landed abroad and then imported into the United Kingdom. They also alleged incompatibility with articles 23 and 25 of the EC Treaty. DEFRA argued that the proceedings were an abuse of process because the challenge was brought by ordinary action rather than judicial review.

The trial also concerned limitation and the SFIA’s change-of-position defence to restitution for mistake.

1. Procedure. The claim was not an abuse of process. The claimants asserted subsisting private law rights in restitution and sought only monetary relief. The public law issue concerning vires was incidental or collateral to that claim. The proceedings could therefore continue by ordinary action.
2. Statutory power. Section 4(1) of the Fisheries Act 1981 identified the persons on whom a levy could be imposed, while section 4(3) limited the subject matter and methods of levy. It was not open to the SFIA to impose an unrestricted levy unrelated to the weight or value of sea fish or sea fish products landed in the United Kingdom or trans-shipped within British fishery limits.
3. Meaning of “landed”. Read in the context of the Act as a whole, including the treatment of importers in section 14(2), the Channel Tunnel amendment to section 4(8), and the protection against discrimination in section 2(2A), “landed” had the wider meaning of being brought onto United Kingdom land. The Regulations were therefore intra vires insofar as they applied to imported fish and fish products.
4. EC Treaty. The relevant chargeable event was the first sale, not importation. In any event, the levy applied systematically to domestic and imported products at the same marketing stage and on the same chargeable basis. It was therefore not a charge having equivalent effect to a customs duty under articles 23 and 25.
5. Restitution. The claimants failed to prove that they could not, with reasonable diligence, have discovered their alleged mistake earlier. Claims for payments made more than six years before 9 September 2008 were accordingly statute-barred. The SFIA also proved that it had spent the relevant levy receipts in good faith on the basis that they were lawfully received, establishing a sufficient causal connection and inequity for a change-of-position defence.

The challenge to the levy’s legality was rejected. Permission was granted to amend the claim concerning articles 23 and 25, but that challenge failed. The court reserved the proposed amendment concerning exclusive or disproportionate benefit.