K and AC Jackson & Son, R (on the application of) v Department for the Environment, Food and Rural Affairs

A public authority’s adopted practice may generate a legitimate expectation even where it is described as guidance or best practice. The relevant question is whether the practice represents how the authority proposes to act and, if so, whether departure is legally required or proportionate to a legitimate public aim. A procedural practice concerning diagnostic testing may require reconsideration or re-testing where the prescribed procedure was not followed. A court may resolve disputed procedural facts where fairness requires it, particularly where later evidence permits a more reliable examination than was available to the decision-maker. General precautionary policy cannot cure a decision based on an unverified or procedurally flawed test.

The claimants sought judicial review of DEFRA’s notices requiring the slaughter of a pedigree bull after a positive bovine tuberculosis gamma-interferon blood test. They alleged that two blood samples had been mixed in the field contrary to the Animal Health operating manual, and that DEFRA had unlawfully refused to apply its stated policy of re-testing where a diagnostic test had not been properly carried out.

The court heard oral evidence on whether the samples had been mixed, found that they had, and then considered the consequences for legitimate expectation, error of fact, the statutory slaughter power, and the precautionary approach to bovine tuberculosis control.

1. Factual finding. The court preferred the claimants’ evidence and found that Boxster’s blood samples had been mixed on site. The court was entitled to resolve that procedural dispute in the unusual circumstances of the case.
2. Legitimate expectation. Applying Nadarajah v Secretary of State [2005] EWCA Civ 1363, a public authority’s adopted practice or promise should be honoured unless departure is required by law or is a proportionate response to a legitimate public aim. The principle applies whether the expectation is procedural or substantive.
3. The instruction not to decant blood between tubes was capable of generating an expectation even though it used the word “please” and was described as best practice. The source and wording of the practice were not decisive. The re-testing policy was not limited, on its terms, to laboratory defects, and “diagnostic test” naturally included the process from farm sampling through laboratory analysis.
4. The court rejected DEFRA’s argument that the breach was immaterial because no scientific evidence established that mixing could cause a false positive. The scientific dispute could not be resolved satisfactorily in judicial review proceedings. The precautionary slaughter policy assumed the integrity of the process establishing infection and did not address a test carried out contrary to the prescribed procedure.
5. The application for judicial review was granted. The decisions and statutory notices dated 13 April and 29 July 2010 were to be quashed. A mandatory order requiring re-testing was refused, although DEFRA was expected seriously to consider re-testing and not reject it solely on the basis advanced in the proceedings. The Article 1 of Protocol 1 argument did not require determination.

The judgment records that permission to apply for judicial review was granted on 27 January 2011 by Mr Rabinder Singh QC, sitting as a Deputy Judge of the Administrative Court. No appeal stage is stated.