England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH
(Mr Justice Ian Kennedy)

		Royal Courts of Justice Strand, London, WC2A 2LL Tuesday 23 October 2001

LORD JUSTICE SIMON BROWN:

1. This is the final chapter of the long-running dispute between the respondent Board and the appellant sheep exporters arising out of the European Community legislation governing the clawback of premium paid to sheep producers. The whole scheme for the payment of premium and its clawback in the event of sheep or sheepmeat being exported within the Community has long since passed into history. Not so, however, this litigation and something must therefore be said of the scheme although for the most part only in bare outline; anyone looking for a fuller exposition will find it in Ian Kennedy J's judgment below.

The scheme

2. Until the beginning of the 1992 marketing year, a variable slaughter premium for sheep was payable to sheep producers within the United Kingdom when prices recorded on the representative market were below a guide level. Premium was payable when the animal was first placed on the market with a view to slaughter, the rate of premium being fixed in each week by the Commission and increased or decreased according to the weekly market price. Animals for which the premium was payable had to be slaughtered in the United Kingdom or exported from the United Kingdom within 21 days of first being placed on the market with a view to slaughter. Sheep were required to be quarantined for at least 30 days before export; placement in quarantine, however, was deemed to satisfy the requirement of export. In the event that a premium was paid, an amount equivalent to that premium was to be charged on the export from the United Kingdom of the sheep or sheepmeat. This charge is known as "clawback".

The course of the dispute

3. Clawback was originally provided for by Article 4 of Commission Regulation 1633/84 in these terms:

"… the amount to be charged on departure of the products … shall be fixed each week by the Commission. It shall be equal to the amount of the premium fixed in accordance with Article 3(1) [a level fixed each week in respect of the week commencing 21 days before the week of fixing], for the week during which departure of the products in question took place."

4. This provision was successfully challenged by the exporters in the ECJ in Joined Cases C-38/90 and C-151/90 R v Lomas and Others [1992] ECR1-1781. The court held:

"19. The system provided for by the Commission Regulation No.16 33/84, whereby the slaughter premium is granted at the rate fixed for the week during which the animal was first placed on the market, while the sheep in respect of which the premium has been paid must be exported within 21 days of the date on which they were first placed on the market and the amount charged by way of a clawback is equal to the amount of the premium fixed for the week during which exportation took place, leads to the result that the amount of the clawback normally differs from that of the premium if the placing of the animal on the market for the first time and its exportation do not take place during the same week.

20. In those circumstances, Article 4(1) of Regulation No.1633/8 is not valid, in as much as it permits the charging, by way of a clawback, of an amount which in most cases is not exactly equal to that of the slaughter premium actually granted and thus goes beyond the limit of the power conferred on the Commission by Article 9(3) of Regulation No.1837/80, as amended by Regulation No.871/84." [emphasis added]

5. Article 9(3) of Regulation 1837/80, as amended, which was the governing Council Regulation, required the Commission to "take the necessary measures to ensure that an amount equivalent to the premium actually granted is charged on all [relevant] products … when they leave the region concerned".
6. In the light of that judgment the Commission plainly had to amend Article 4 of Regulation No.1633/84 and, by Article 1 of Regulation No. 1922/92, did so as follows:

"1. For the United Kingdom the amount of the clawback to be charged on departure of the products … shall be equal to the amount of the premiums fixed in accordance with Article 3(1) and actually granted for the same products subject to the same clawback. [Option 1]

At the request of the operator the amount of the clawback shall be fixed equal to the average amount of the premium fixed for the week of departure of the products and the three previous weeks. [Option 2]

Operators shall indicate within 28 days of notification by the competent United Kingdom authorities on which of the above mentioned options they intend to proceed. … "

7. That amended provision was in turn challenged by exporters but this time unsuccessfully. In Case C-212/94 FMC v Intervention Board for Agricultural Produce [1996] ECR1-389 the exporters advanced two arguments. They contended, first that the burden of proof placed upon them under option 1 was so strict as to render that option illusory; secondly that the process of averaging provided for by option 2 would necessarily produce a result "not exactly equal to that of the slaughter premium actually granted" and thus fall foul of the court's judgment in Lomas and Others and be, like the unamended Article 4, ultra vires the Council regulation. Both arguments were rejected. As to the second option, with which the present appeal is primarily concerned, the ECJ said this:

"37. That second option, which is intended, as is apparent from the fifth recital in the preamble to Regulation No.1922/92, to avoid the practical difficulties which traders might encounter in adducing the proof required under the first calculation method, fixes the clawback at an amount equal to the average of the slaughter premiums fixed for the week of export of the products concerned and the three previous weeks.

38. That system differs fundamentally from the method of calculation declared invalid in the judgment in Lomas and Others, according to which the clawback was equal to the amount of the premium fixed solely for the week of export of the products concerned.

…

43. … it cannot be argued that the new system is incompatible with Regulations No 1837/80 and No 3013/89, which require an amount equivalent to that of the premium actually paid to be levied on departure from Great Britain of the products for which the variable slaughter premium had been granted. The word 'equivalent' cannot be understood as referring to an amount which is exactly the same for each transaction, especially in a situation such as that arising under the second option where the amount of a premium paid in the past can no longer be determined exactly; instead, that word must be understood, in accordance with the purpose of the legislation in question, as meaning that the result of levying the clawback should in fact be to neutralise the impact of the premium. As is clear from the foregoing considerations, that condition is satisfied by the new method of calculation laid down in Articles 1 and 2 of Regulation No. 1922/92." [emphasis added]

8. As Ian Kennedy J observed below:

"By this decision the ECJ had moved a considerable distance from its earlier decision in R v Lomas and Others, recognising that equality and equivalence properly so called were not practically to be achieved."

9. The third European Court judgment to which I must refer is that of the Court of First Instance (CFI) in Case T-455/93 Hedley Lomas (Ireland) Limited v Commission [1997] ECR 2-1095, an action started by a number of the present appellants in 1993 but stayed, as were the present actions, to await the judgment of the ECJ in FMC. FMC was concerned principally with sheepmeat rather than live sheep. On that ground, when the stay on Hedley Lomas was lifted, the exporters sought to distinguish FMC and to argue, as recorded in paragraph 29 of the judgment:

"… in the case of the live trade, the sheep must be placed in quarantine for 30 days prior to export and the date of placing in quarantine is deemed to be the date of export for the purpose of satisfying the 21-day rule, although clawback is determined at the actual date of export, by which stage the rate of clawback would be radically different from the rate of premium actually paid. Moreover, the sheep continue to fatten during the quarantine period, with the result that clawback is applied to a greater weight than that by which the premium was calculated."

10. The CFI refused to entertain the argument because of its procedural bar against adding grounds and arguments that do not rest on facts or legal considerations emerging since the case was begun.

The present actions

11. Following the CFI's decision in Hedley Lomas the respondents applied for summary judgment against the appellants on all their long outstanding claims. For the most part these were by way of counterclaims for unpaid clawback in actions brought against them by the appellant exporters for alleged over-payment of clawback, but in two cases they were claims for unpaid clawback commenced by the respondents themselves. These applications came before Ian Kennedy J and, after four days argument variously in December 1999 and January 2000, were the subject initially of a reserved judgment in the respondents' favour handed down on 14 April 2000 and thereafter of a further ruling by the judge on 23 June 2000 that his judgment in all these actions was indeed a final judgment and not, as the appellants had sought to contend, merely the determination of a number of legal issues so as to leave outstanding various factual issues.
12. Now before us is principally the exporters' appeal by permission of Ian Kennedy J against certain of his legal rulings, but additionally, with Sir Murray Stuart-Smith's permission, an appeal (now pursued only by Mr Feakins) against the grant of summary judgment in any event.
13. The judge's rulings against which the appellants now appeal are two in number. One concerns criticisms which the appellants make of the respondents for failing to discount the weight of the sheep at the point of export to reflect the fact that their weight will inevitably have increased during their period in quarantine. The other concerns the appellants' contention that some at least of the respondents' claims are barred by the three year Community limitation period which applies to the recovery of export charges. Let me consider each in turn.

The weight of the sheep

14. Six criticisms of the method by which clawback has been calculated were listed by the judge below. The first three he described as "inescapably … direct criticisms of the regulations themselves" and, as such, barred by the decision of the ECJ in TWD Textilwerke Deggendorf v Germany (1994) ECR I-833. The last three criticisms he noted as follows:

"d. Clawback was charged on the animal's actual weight at the time of departure whereas premium was paid only up to a stipulated weight, whatever the actual weight. This complaint was of more significance when a reduction was made in the premium-attracting weight …

e. No allowance was made in the weight recorded at departure for the sheep being wet or dirty. Apparently the market inspectors who assess the sheep for premium do make some rough and ready allowance for such factors. In the result, say the exporters, the live/dead weight coefficient used to assess the killed-out weight, and so the amount of clawback, was again falsified.

f. There was no allowance for the natural, as the exporters would say, increase in weight of the animals over their 30 days in quarantine. So clawback was charged on an animal which was necessarily heavier than it had been when it had attracted premium. … "

15. As to these three criticisms the judge concluded:

"[They] could either be said to be direct criticisms of the Council for setting the animals leaving the region as the relevant time, or direct criticisms of the Commission for failing to 'take the necessary measures to ensure that an amount equivalent to the premium actually granted is charged'. Perhaps more clearly they criticise the Commission for failing to 'adopt detailed rules for the application of (the) article', as the Council had enjoined. Even if it could be said that the Commission had taken the necessary steps by, in its turn, requiring the United Kingdom (by Article 5(2)) to take the necessary steps, which I doubt, that could not by itself satisfy the requirement to adopt detailed rules. Put at its lowest there remains such a lack of clarity that the Board was able to operate in the unlawful fashion that it did, unlawful in that it did not comply with the Council's injunction to recover a sum equivalent to the premium, and that must itself be an indirect attack on the Regulations."

16. The judge accepted the respondents' contention that all these criticisms were properly to be regarded as criticisms of the European legislation so as to be barred by the decision in TWD.
17. Mr Green QC submits on appeal that, properly understood, these three criticisms go not to the validity of the Regulation (which he acknowledges he cannot now challenge) but rather to the true construction and/or application of the Regulation. It is, of course, upon option 2 that the argument focuses. For convenience let me repeat it:

"At the request of the operator the amount of the clawback shall be fixed equal to the average amount of the premium for the week of departure of the products and the three previous weeks."

18. The argument was advanced throughout by reference to the weight which the animals will inevitably put on during their time in quarantine (i.e. criticism (f)), rather than criticisms (d) and (e). If criticism (f) cannot be made good, plainly the others too will fail.
19. As I understand it the argument runs essentially as follows. Option 2 must be construed purposively to achieve the objective which underlies it. This objective, as made plain by the ECJ in FMC, is "to neutralise the impact of the premium", and this can only be achieved by construing the measure so that the clawback equates as closely as possible to the premium. That can be done as a matter of construction by requiring the respondent Board to calculate clawback upon the basis either of the animal's weight at the date when premium was granted or of the average weight of the animal during the four weeks preceding its export. This construction, submits Mr Green, is open to the court because the reference in option 2 to "the premium fixed" for the relevant four weeks refers not merely to the premium rate but also to the animal's weight at each of those stages. Failing that, submits Mr Green, there is a lacuna in the Commission's legislation which the United Kingdom is therefore bound to fill by adopting its own implementing rules with regard to determining the animal's weight. Simply to take the weight at the date of export will necessarily inflate the clawback beyond the level of the original premium. It must accordingly be discounted to fulfil the express purpose of the clawback regime.
20. Ingenious though these arguments are, to my mind they are impossible. However purposively one construes option 2, it cannot in my judgment surrender the meaning contended for by the appellants: the "amount of the premium" for each of the specified four weeks can only refer to the rate of premium; it cannot require the calculation of that rate as applied to some notionally reduced animal weight on a week by week basis. Still less can it allow for a straight line discount to a notional weight at the date when the premium was actually paid – which, indeed, could well be before even the first of the four specified weeks.
21. Nor in my judgment is there any lacuna in the legislation such as to require, or even permit, the UK to discount the animal's export weight with a view to approximating the clawback more closely to the premium. Rather the detailed mechanism for the recovery of clawback has been put in place by the Commission as required of them by the Council. All the necessary measures have been adopted. Most relevantly for present purposes, the Commission by Article 1(2) of Regulation 2668/80 and Annex 1 thereto fulfilled their obligations under Article 12(3) of Council Regulation 1837/80 by fixing coefficients for calculating all the necessary levies, in the case of live sheep a coefficient of 0.47. It was not open to the United Kingdom in those circumstances unilaterally to determine and apply some further coefficient to the weight of the sheep at export in order to take account of other factors (which in any event may have been reflected in the Commission's coefficient).
22. On true analysis each of these complaints was available, if at all, against the Commission. It is hardly surprising, therefore, that the appellants sought to advance them before the CFI in Hedley Lomas, an application against the Commission. In the various proceedings before the ECJ it was never suggested that the problem of increased weight through the quarantine period was soluble, and, indeed, required to be solved, by action on the part of the United Kingdom government. I would reject this final assault on the clawback scheme.

Limitation

23. The appellants submit that a claim for unpaid clawback falls within Council Regulations 1697/79 and is thus subject to a three year limitation so that some at least of the respondents' claims are time barred (whereas none would be if the national six year limitation period were to apply). The respondents seek to meet this argument in two ways. They contend first that the Regulation has no application to the recovery of the clawback, alternatively that, even if it applies, their claims were brought within the relevant three year period.
24. Regulation 1697/79, by Article 1(2)(b) defines "export duties" to mean "agricultural levies, and other export charges laid down within the framework of the common agricultural policy … ".
25. Article 2(1) of the Regulation provides that competent authorities must take action to recover uncollected export duties but that:

"… such action may not be taken after the expiry of a period of three years from the date of entry in the accounts of the amount originally required of the person liable for payment or, where there is no entry in the accounts, from the date on which the customs debt relating to the … goods was incurred."

26. "Customs debt" is defined by Article 1(2)(d) to mean "the obligation on a … person to pay the amount of the … export duties … " Article 2(2) provides that "action for recovery shall be taken by notifying the person concerned of the amount of … export duties for which he is liable".
27. Ian Kennedy J below dealt with the limitation argument in a single paragraph. Having said that the answer to it depended on clawback being within one or other of the descriptions "agricultural levy" or "export charge", he said:

"The ECJ has twice ruled that it is not. It has held it to be the off-setting of the slaughter premium and neither a levy nor a duty."

28. That conclusion appears to have been based upon the following paragraphs of the ECJ's judgment in Lomas and Others:

"15. … the Court has already held (Case 106/81 Kind v EEC (1982) ECR 2885 and Case 61/86 United Kingdom v Commission (1988) ECR 431) that although any charging of a sum of money upon exportation to another Member State constitutes in principle, no matter how that charge is described, an obstacle to the free movement of products within the Common Market, the charging of such a sum may nevertheless be justified …

16. … as the Court stated in those cases, … the variable slaughter premium may call for corrective measures to restore equality between producers in all regions so far as their competitive position is concerned, in particular by charging the clawback on exportation outside the region concerned of products in respect of which the premium has been granted.

…

18. It follows that the clawback is not to be regarded as a charge having an effect equivalent to a customs duty, or the variable slaughter premium as an export premium, only insofar as the clawback is intended to offset exactly the impact of the variable slaughter premium, by enabling products from the region in which that premium was granted to be exported to other Member States without disturbing their markets."

29. What the ECJ was there saying, however, was not that clawback was neither a levy nor a charge within the meaning of Regulation 1697/79 (an issue not arising in Lomas and Others) but rather that clawback could not be struck down in its entirety as a "charge having effect equivalent to a customs duty" (and thus unlawful under Articles 9 and 12 of the Treaty), providing only that it properly offset the impact of the premium – which, of course, in that first case it was held it did not.
30. Unless, indeed, clawback (and other such neutralising charges like monetary compensation amounts) are to be regarded as "export duties" within the meaning of Regulation 1697/79, it would seem to follow that the Regulation can have no application whatever to intra-community trade – since otherwise by definition anything qualifying as an export duty would be subject not to a three year limitation period but instead to a complete ban as constituting "a charge having effect equivalent to a customs duty".
31. This logic led Mr Barling QC for the respondents to submit that Regulation 1697/79 has indeed no application to intra-community trade although he acknowledged that such a conclusion was certainly not acte claire. Not only is it not acte claire, but it seems to me a very difficult argument indeed, and not least because, so far from the Regulation being expressly limited to duties arising in trade between Member States and third countries, it expressly encompasses charges within the framework of the common agricultural policy which substantially involves intra-community trade also. Mr Barling's argument is also fundamentally inconsistent with what both he (on behalf of the United Kingdom) and the Commission argued in FMC to the effect that the three year limitation period applied by Regulation 1430/79 to the repayment of export duties should be held to apply to the exporters' claims for the repayment of clawback "since clawback is an amount which, like monetary compensation amounts, must be paid to the national authorities on the exportation of the products concerned". That argument in the event failed, but it failed not because anyone doubted that clawback was a relevant export duty (defined identically in Regulation 1430/79 as in Regulation 1697/79), but rather because Article 2 of Regulation 1922/92 in terms provides that exporters entitled to reimbursement are so entitled "within the time limits … laid down in the relevant national law".
32. Mr Barling now seeks to invoke Article 2 of Regulation 1922/92 by submitting that it would be anomalous if a different rule were to apply to claims brought by the Board for unpaid clawback than to exporters' claims to recover overpaid clawback. The point seems to me, however, to cut the other way: Article 2 in terms deals only with the exporters' claims. Regulation 1922/92 is silent as to any claims by the Board and accordingly normal community law rules for limitation apply to such claims. And why should not Regulation 1697/79 apply to clawback? Time and again in the legislation it is referred to as an amount 'charged' or 'levied' on products leaving the country and, it must be remembered, although in one sense it is an off-set, it is charged, not on the producer who was paid the premium but rather on the exporter.
33. I turn, therefore, to the respondents' alternative argument (not dealt with by the judge below but now the subject of a respondent's notice) which is that in any event they complied with the three year period by notifying the exporters shortly after the adoption of Regulation 1922/92 of the fresh liability arising under option 2 – for which all exporters elected since none could satisfy the requirements of option 1.
34. Central to this argument is Mr Barling's submission that the earliest date from which the three year limitation period could run was that on which the debt was incurred and here the debt in respect of which each of these actions was brought was not incurred, indeed could not have been incurred, until the old invalid Article 4 had been replaced in 1992 by the new Article 4.
35. Mr Green's contrary argument is that the obligation to pay the clawback arose on the actual exportation of the sheep which in some cases was more than three years before the Board's fresh 1992 notifications to exporters of their revised liability – the event which, pursuant to Article 2(2) of Regulation 1697/79, stopped time running. In support of this argument Mr Green relies on the language of the Regulations requiring the Commission to adopt the necessary measures to levy clawback, namely "when [the relevant] products leave the territory of the Member State concerned" (Article 9(3) of Council Regulation 1837/80), or "on all the [relevant] products … leaving Great Britain …" (Article 24(5) of Council Regulation 3013/89). Additionally, however, he relies on what the CFI said in paragraph 48 of its judgment in Hedley Lomas:

"It should also be noted that the duty of the national authority in the United Kingdom to demand payment of clawback upon export of products which had benefited from a premium derived not from Article 4 of Regulation 1633/84 but from Article 9(3) of Regulation 1837/80, later amended by Regulation 871/84, and subsequently from Article 24(5) of Regulation 3013/89, which indicated that an amount equivalent to the premium would be charged when those products left the territory of the Member State concerned. Despite the Lomas judgment, a Member State which had availed of the power to pay a variable slaughter premium under Article 9(1) of Regulation 1837/80, as subsequently amended, was under a duty to ensure that an amount equivalent to the premium paid was charged in respect of products which left its territory. It follows that demands for clawback made by a national authority on the basis of Article 4 of Regulation 1633/84 were not wholly devoid of lawful authority notwithstanding the subsequent declaration of invalidity of paragraphs 1 and 2 of that article."

36. In the passage, submits Mr Green, the CFI was recognising that the original demands for clawback were lawful ("not wholly devoid of lawful authority") because even though Article 4 of the Commission Regulation was unlawful, the underlying liability for clawback arose under the Council Regulation and arose at the date of export. It follows, I understand him to argue, that the Board could only properly have sought to rely upon the original notifications of liability (no doubt adapted as necessary to the new option 2 basis of calculation) rather than, as in fact occurred, to treat them as void and issue fresh notifications in their place. In any event, he submits, the Board cannot recover as they now seek to do upon notifications given more than three years after the relevant products were exported.
37. On this part of the case I unhesitatingly prefer Mr Barling's arguments. I do not accept for a moment that time began running under Regulation 1697/79 on the date of export: the requirement upon the Commission to charge "when" the products leave the country means in my judgment "in the event that" rather than "on the date that". The "customs debt" arose when the exporter became liable to pay the clawback which could only be upon a demand lawfully being made upon him. When, therefore, one must ask, were demands lawfully made upon these exporters such as to set time running in respect of the claims now at issue? In my judgment, only once Article 4 was amended so as to become valid and, even then, only when the exporters elected under it to be charged by reference to option 2 and were duly invoiced. That is when their liability arose and the fact that on this approach the incurring of the debt and its notification to the exporters (respectively the events starting and ending time running) occurred at one and the same time is nothing to the point. Nor do I see anything inconsistent with this approach in paragraph 48 of the Hedley Lomas judgment. All that the CFI was there deciding was that the clawback already paid pursuant to the original demands was not recoverable in full merely because the particular article under which it had been demanded had since been found invalid. That is quite a different thing than to hold that unpaid clawback could still be recovered pursuant to such demands, which in my judgment the CFI did not hold. I have no doubt that the Board were right to issue fresh demands and that having done so their action to recover the clawback did not fall foul of the three year limitation period.
38. I turn finally to Mr Feakins' appeal against summary judgment which I can deal with very shortly indeed. It is, in truth, quite hopeless. Mr Feakins, let me explain, seeks to contend that, of the total clawback claimed against him, some £197,000 is properly referable to exempt consignments for which he should not have been charged. The first point to make about this argument is that as long ago as August 1992 the Board wrote to Mr Feakins stating quite plainly that he would not be granted exemption for these exports unless and until the Board was supplied with the relevant customs forms. No response appears ever to have been made to that letter save only for a bald assertion by Mr Feakins' solicitor on 19 October 1993 that "the sum which you allege our clients owe is completely different from figures previously disclosed to our clients and they have no idea how the total has been calculated".
39. When all these claims for summary judgment came before Ian Kennedy J he mentioned one only as requiring special consideration, that brought by Barretts & Bairds of which he said: "In this one instance there is an outstanding factual dispute about the ultimate destination of some of their exports". That action he dealt with at the conclusion of his judgment as follows:

"I should refer briefly to Barretts & Baird's separate point concerning the confusion, as they would say, by the Board of their exports to Switzerland with their exports to the European Community. During the hearing their counsel accepted the Board's undertaking to reconsider sympathetically the evidence which remains available to identify the destination of their consignments. I do not think it appropriate to make any order to that end."

40. Since that judgment, we are told, that particular action has settled. The contrast between the two cases is striking: not only was no such outstanding factual dispute mentioned with regard to Mr Feakins' case but his counsel were quite unaware of it: so much was made plain to the judge when the matter was relisted before him on 23 June 2000. Indeed, even at that stage, the only "evidence" before the court was by way of a letter of 22 June 2000 from Mr Feakins to his solicitor. Since then Mr Feakins has sought to adduce further evidence by way of a witness statement dated 26 September 2001 and another made and produced in the course of the hearing before us on 10 October 2001. Having considered both those statements and their various exhibits, together with a statement also dated 10 October 2001 made by Mr Basham on behalf of the Board and submitted at our invitation, I for my part have not the least hesitation in dismissing Mr Feakins' appeal and, indeed, in refusing him leave to adduce any further evidence upon it (a question which Sir Murray Stuart-Smith expressly left open for consideration by the full court on the appeal).
41. Nothing could be plainer than that Mr Feakins did not reserve his position on the facts before the judge below and that in any event he could and should have adduced all this material years ago if he wished to rely upon it. It seems highly likely too that at this distance in time it will be quite impossible for Mr Feakins to satisfy the Board's conditions for establishing the exempt status of the relevant exports and impossible too for the Board to be sure that, in the absence of the missing paperwork, these exports did indeed qualify for exempt status.
42. We invite the Board to take one last look at the material now produced on Mr Feakins' behalf and to consider whether or not at this final stage they are prepared to afford him some degree of ex gratia concessionary relief. Beyond that I for my part would not go.
43. It follows that I would dismiss all these appeals and uphold the order made by the judge below.

LORD JUSTICE MANTELL:

44. I agree.

LORD JUSTICE LATHAM:

45. I also agree.
ORDER: Appeal dismissed with costs (Order does not form part of the approved judgment)