Newby Foods Ltd, R (on the application of) v Food Standards Agency (No. 2)

Where a national court has referred the controlling question of EU-law interpretation to the Court of Justice, related claims founded on legitimate expectation, natural justice, proportionality or sincere cooperation cannot be finally determined until that interpretation is settled. Interim relief may nevertheless be granted under the American Cyanamid principles. In a public-law case, the balance of convenience must include the wider public and European interests, and the applicant must show special reasons for restraining enforcement of the apparent law. The possibility that relief may temporarily permit conduct later found unlawful is important but not conclusive. Public-health uncertainty justified refusing relief for ruminant products, while relief was granted for pre-moratorium lamb intended for specified pet-food use and for pork and poultry products where the remaining issue was labelling.

This was the claimant’s application for interim relief in judicial review proceedings against the Food Standards Agency. In an earlier judgment, the court had referred the principal questions concerning the interpretation of paragraphs 1.14 and 1.15 of Annex I to Regulation (EC) No 853/2004 to the Court of Justice of the European Union.

The dispute concerned whether low-pressure mechanically recovered meat, described as desinewed meat, was mechanically separated meat or a meat preparation. The claimant challenged a moratorium and associated restrictions affecting production from ruminant, pig and poultry bones. The immediate questions were whether the court should determine subsidiary grounds before the European ruling and, pending that ruling, whether interim relief should be granted.

1. Interpretation and subsidiary grounds. The court declined to determine the principal interpretation issue because it had been referred to the Court of Justice. The claims based on legitimate expectation, natural justice and proportionality could succeed only if the claimant’s interpretation of the Regulation was correct. The duty of sincere cooperation under article 4(3) of the Treaty on European Union did not assist the claimant on the assumed alternative interpretation, and the court reserved whether it conferred enforceable rights.
2. Proposed amendments. The amendment alleging that the Commission lacked power to impose safeguard measures could not produce useful relief if the claimant’s activities were ultimately unlawful. The proposed argument that the process did not involve removal from flesh-bearing bones after boning was refused. It would imply that even high-pressure crushing could not produce mechanically separated meat, an obviously incorrect consequence.
3. Interim relief. Applying American Cyanamid Co v Ethicon [1975] AC 396, the serious-issue and adequacy-of-damages requirements favoured relief. Under R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603, the balance of convenience had to include the public interest and the importance of upholding the apparent law. The applicant nevertheless showed special reasons for relief in relation to some products, and the prospect that relief might temporarily permit unlawful activity was not decisive.
4. Relief was refused for production from ruminant bones. Although the public-health risk appeared very low, the evidence did not enable the court confidently to exclude it, and public perception was relevant. Relief was granted permitting sale of the stored 51 tonnes of lamb as a meat preparation for cat and dog pet food, and permitting continued production and sale of desinewed pork and poultry as meat preparations, subject to the specified hygiene requirements. The FSA was restrained from enforcing the moratorium inconsistently with those permissions.

The judgment was a second-instance procedural stage within the same judicial review proceedings. An earlier judgment referred the EU-law interpretation questions to the Court of Justice of the European Union. This judgment determined interim relief pending that ruling.