Food Standards Agency v Bakers of Nailsea Ltd

An application for a summons in a Magistrates’ Court must positively demonstrate compliance with any statutory time limit. It is insufficient that the dates of the alleged offence and application might enable the court to infer that the proceedings are in time. The application should at least identify the applicable time limit, and must provide sufficient information where the limitation period depends on discovery of the offence. A party that made an express and considered concession below will ordinarily be held to it on appeal. Permission to change position requires exceptional circumstances, particularly where the proposed argument was considered and deliberately abandoned at first instance.

The Food Standards Agency appealed by way of case stated under section 111 of the Magistrates’ Court Act 1980 against a ruling of District Judge Taylor at Yeovil Magistrates’ Court. The District Judge held that applications for summonses concerning alleged breaches of the Food Safety and Hygiene (England) Regulations 2013 were invalid because they did not comply with Criminal Procedure Rule 7.2(3)(b)(i), and were therefore nullities.

Before the District Judge, the FSA had expressly conceded that the applications did not demonstrate that they were made within the applicable limitation period. On appeal, it sought to withdraw that concession and argued that the dates stated in the applications were sufficient. The central issues were whether the FSA could resile from its concession and whether the applications complied with Rule 7.2(3)(b)(i).

1. Appeal dismissed. The FSA was not permitted to resile from its express and considered concession that the applications failed to comply with Criminal Procedure Rule 7.2(3)(b)(i). The principle that parties should get their case right first time requires exceptional circumstances before a party may adopt a fundamentally different position on appeal. No such circumstances existed. The FSA sought a second opportunity to argue a point it had expressly considered and abandoned below (paras [25]–[31]).
2. The court nevertheless considered the substantive question. Rule 7.2(3)(b)(i) requires an application for a summons to demonstrate that it is made in time where legislation imposes a time limit. The Magistrates’ Court performs a judicial function when deciding whether to issue a summons and must be properly assisted on limitation. The rule therefore requires more than setting out the allegation and dates from which the court might infer compliance (para [34](i)–(v)).
3. An ordinary and natural reading of “demonstrate” requires a positive step. At least, the application must refer to the applicable time limit. Where the limitation period may run from discovery rather than commission, further information may be needed to establish that the application is in time. The FSA’s proposed variable approach would undermine the simple and consistent operation of the rule (para [34](iv)–(vi)).
4. The FSA’s concession was therefore correct in any event. The applications were nullities and the District Judge had no jurisdiction to entertain them. The question stated was answered in the negative (paras [35]–[36]).

• High Court (Administrative Court): appeal by way of case stated dismissed. The ruling of District Judge Taylor was upheld, and the applications for summonses were treated as nullities.