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

Costs should reflect both the legal merits and the practical value of proceedings. A claimant which obtains no formal relief may nevertheless have been justified in bringing proceedings where the court provides necessary clarification of an important issue. That does not, however, justify an award of costs where the principal claim was misconceived and no breach of the relevant duty was established.

Where an application is caused substantially by the conduct of one party, another party required to participate in its defence may receive only a proportion of its costs. The court may make no order as to the balance.

Following an earlier judgment on the substantive application, the court determined costs and the appropriate form of relief. The claimant had sought declarations concerning threatened conduct by the European Commission, alleging that it could amount to contempt of court and breach of the duty of sincere cooperation under TFEU Article 4(3).

The contempt claim had failed because conduct outside the territorial jurisdiction of the English courts could not constitute contempt under English law. The court made no declaration concerning sincere cooperation, but had clarified the scope of that duty and criticised aspects of the Commission’s conduct. The costs issues concerned the claimant’s position against the Commission and the Food Standards Agency.

1. Claim against the Commission. The claimant obtained no formal relief. Its primary application, based on contempt of court, was misconceived and unsupported by authority or established principle. The court also made no finding that the Commission had breached the duty of sincere cooperation.
2. Nevertheless, the application had not achieved nothing. Given the history and the Commission’s response to the interim relief, clarification of the relationship between national court orders and the Commission’s conduct was justified. The court had been entitled to explain the scope of the duty, although that did not warrant a costs order in the claimant’s favour.
3. The claimant had also pitched its case too high on almost every aspect and had failed to disclose that it had a substantial shareholder. In the circumstances, neither party should recover costs from the other. There was no order for costs as between the claimant and the Commission.
4. Claim against the FSA. The FSA had little choice but to participate in defending the application. However, the application arose largely from the Commission’s conduct rather than anything done by the claimant. The claimant was therefore ordered to pay 50% of the FSA’s costs of defending the application. No order was made as to the remaining 50%.
5. If the FSA’s costs could not be agreed, they were to be determined by detailed assessment on the standard basis.

The judgment concerned costs and relief following the court’s substantive judgment handed down on 7 May 2014. No appellate decision is stated.