Caterpillar (Xuzhou) Ltd, R (on the application of) v Secretary of State for Business and Trade & Anor

In a bespoke anti-dumping regime, the Trade Remedies Authority is not subject to a positive duty to identify and notify every potential interested party. The statutory scheme requires interested parties to make themselves known during the registration period, subject to the Authority’s procedural discretion and practical constraints.

A party which comes forward very late has no entitlement to be treated as if it had registered in time or to have an individual rate calculated. Procedural fairness must be assessed in the statutory and international context, including the requirement to complete investigations within the applicable time limit. A provisional affirmative determination may stand despite later changes in the evidence. The Secretary of State may rely on the Authority’s economic-interest analysis and need not conduct an independent economic calculation.

Caterpillar challenged the Trade Remedies Authority’s provisional affirmative determination and the Secretary of State’s decision to accept a recommendation requiring guarantees in an anti-dumping investigation concerning excavators originating in China.

Caterpillar alleged failures to notify it, procedural unfairness, irrationality, and failure by the Secretary of State to exercise his statutory discretion. It later emerged that Caterpillar had known of the investigation from its inception but had not registered. The Authority subsequently calculated an individual rate for Caterpillar, and the disputed provisional rate ceased to have legal effect.

The court considered whether the claim was academic and, alternatively, whether the pleaded grounds were arguable.

1. Disposition. Permission to apply for judicial review was refused on every ground. The claim was academic and, in any event, the challenges were not arguable. The provisional affirmative determination and Guarantee Decision were unimpeachable.
2. Notification and registration. Schedule 4 to the Taxation (Cross-border Trade) Act 2018 and the Trade Remedies (Dumping and Subsidisation) (EU Exit) Regulations 2019 create a comprehensive procedural scheme. The TRA must notify interested parties known to it, but is not required to undertake an extensive inquiry to discover unknown exporters. Interested parties are expected to make themselves known during the registration period.
3. The TRA had complied with its notification obligations and had widely publicised the investigation. Caterpillar had actual knowledge from November 2023 and had ample opportunity to register. Its failure to participate resulted from its own inaction.
4. Late participation and fairness. A late-emerging interested party has no procedural entitlement to be treated as if it had registered in time, to reopen a provisional determination, or to receive an individual anti-dumping rate. The decision whether to accept late information was multi-factorial and evaluative. It was lawful and procedurally fair to consider the disruption, the statutory timetable, the provisional nature of the determination, and the need to complete the investigation within the international time limit.
5. The TRA could make a provisional affirmative determination where interested parties had been given an adequate opportunity to provide information. That condition remained satisfied despite Caterpillar’s later appearance. The fact that the TRA subsequently calculated an individual rate under exceptional time pressure did not establish that its earlier refusal was unlawful.
6. Residual rate. Caterpillar received the residual rate because it had not registered and had no individual rate calculated. The statutory concept of a non-co-operative party under regulation 49 was not engaged because Caterpillar had not registered as an interested party. Internal references to it as non-co-operative were shorthand and did not alter the operative decision.
7. Secretary of State. Under paragraph 15 of Schedule 4, the Secretary of State had to decide whether accepting the TRA’s recommendation was in the public interest and have regard to the TRA’s advice on the economic-interest test. He was not required to conduct his own economic calculations. He considered Caterpillar’s representations and was entitled to rely on the TRA’s expertise. The decision fell within a macro-political and macro-economic field in which the court would be slow to intervene.
8. Academic claim. The later individual assessment meant that the challenged provisional rates had no continuing legal effect. The pleaded challenge to the Guarantee Decision had likewise been overtaken. Any challenge to the individual rate or final measures would have to be brought separately or through the statutory reconsideration and appeal routes.
9. Duty of candour. Caterpillar breached its continuing duty of candour by relying on an asserted lack of knowledge which was false. The court found that the breach was serious and that, had permission not already been refused on the merits and academicity, the breach would independently have justified refusal of permission.

First-instance judicial review claim. Permission to apply for judicial review was refused on all grounds by the High Court (Administrative Court).