Newby Foods Ltd, R (On the Application Of) v Food Standards Agency (No. 4)

Where an applicant succeeds on some issues but fails on a distinct application, costs may be allocated by reference to the issues rather than by treating the result as wholly successful or wholly unsuccessful. The applicant should bear the costs attributable to the failed issue, while the respondent should pay an appropriate proportion of the costs of the hearing concerning the issues on which the applicant succeeded. The court may adopt a practical percentage allocation to avoid disproportionate examination of the parties’ detailed costs.

The judgment concerned the costs consequences of a hearing involving Newby Foods Ltd, the Food Standards Agency and the European Commission. The applicant succeeded in obtaining permission to continue producing de-sinewed pork and poultry meat and in selling 51 tonnes of frozen lamb. It also reopened the issue of continuing production of de-sinewed lamb meat, but the Food Standards Agency successfully resisted that application on a procedural threshold issue. The court therefore had to determine a proportionate costs order reflecting the applicant’s mixed success.

1. The applicant succeeded on the issues concerning continued production of de-sinewed pork and poultry meat and the sale of the frozen lamb. If those had been the only issues, the Food Standards Agency would have paid the costs of the hearing.
2. The applicant failed on the separate application to continue producing de-sinewed lamb meat. The applicant was therefore required to bear its own costs of that application, including the costs of witness statements directed wholly or substantially to that issue.
3. The court considered that a practical issue-based allocation was preferable to a detailed and potentially disproportionate examination of each party’s costs. The Food Standards Agency was ordered to pay 50% of the applicant’s costs of the hearing, including 50% of counsel’s fees, except for fees incurred before the hearing in preparing evidence for the failed lamb-meat application.
4. The Food Standards Agency was also ordered to pay the costs of preparing the submissions on costs. All other costs were costs in the case.