Newby Foods Ltd, R (on the application of) v Food Standards Agency & Ors

In an interlocutory application, a party cannot reopen an issue already decided unless there has been a significant change of circumstances or facts have emerged which could not reasonably have been known in time for the first hearing. A fresh expert opinion on material already available does not satisfy that threshold. In deciding interim relief, the court must assess the balance of convenience and the public interest. A very low risk may nevertheless be material where public perception, food safety concerns and possible regulatory or commercial consequences cannot fairly be dismissed. Relief may be granted where refusal would cause severe commercial prejudice and the opposing risks are insufficiently evidenced.

This was the third judgment in continuing judicial review proceedings concerning the classification and labelling of low-pressure de-sinewed meat as mechanically separated meat or as a meat preparation. The court had referred questions of interpretation to the Court of Justice of the European Union and had previously granted conditional interim relief for certain pork, poultry and stored lamb products.

The Food Standards Agency and the European Commission opposed confirmation of relief. The claimant also sought to reopen the refusal of relief for the continued production of de-sinewed lamb meat, relying on fresh expert evidence concerning TSE risk. The issues were whether relief should be confirmed for pork and poultry, whether it should be confirmed for the stored lamb, and whether the lamb-production issue could be reopened.

1. Interim relief for pork and poultry. The Commission’s evidence did not establish a compelling risk of consumer harm, significant action by other Member States or material competitive distortion. The balance of convenience favoured relief because refusal would deprive the claimant of effective protection if the Court of Justice ruled in its favour and would almost certainly put it out of business. The conditional relief was therefore confirmed for pork and poultry products.
2. Stored lamb. The court accepted that the health risk from allowing the stored lamb to be used in pet food was very low, but held that public perception of risk could not be disregarded. On the evidence, the value of the product was materially greater than the figure relied on by the FSA. The factors supporting relief therefore continued to outweigh the limited evidence of possible adverse action, and relief was confirmed for the 51 tonnes of frozen lamb.
3. Reopening the lamb-production issue. The principle in Chanel Ltd v FW Woolworth & Co Ltd [1981] 1 WLR 485, as explained in The Leadmill Ltd v Karl O’Mare (Trading as The Treadmill) [2002] EWHC 1226 (Ch), applied. The claimant had to show a significant change of circumstances or facts which could not reasonably have been obtained for the earlier hearing. The new evidence merely involved a fresh expert considering material already available and previously relied on. The threshold was not crossed.
4. The court remained of the view that public-interest considerations weighed against interim relief for the production of de-sinewed lamb meat. The Commission’s possible reaction, the sensitivity of the market and the non-negligible risk associated with contamination or age of the animal justified refusal. There was no order for costs in favour of the Commission. The claimant was provisionally ordered to pay 50% of the FSA’s costs of the hearing, with the remaining costs in the case, subject to written submissions.

The judgment describes earlier interlocutory judgments in the same proceedings, including a referral of questions to the Court of Justice of the European Union and a judgment dated 26 July 2013 granting conditional interim relief. No appellate decision is stated.