QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| COMPASSION IN WORLD FARMING LIMITED
|- and -
|THE SECRETARY OF STATE FOR THE ENVIRONMENT, FOOD AND RURAL AFFAIRS
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
David Anderson QC and Marie Demetriou (instructed by DEFRA) for the Defendant
Crown Copyright ©
Mr Justice Newman:
The European Position
"In formulating and implementing the Community's agriculture, transport, internal market and research policies, the Community and the Member States shall pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rights, cultural traditions and regional heritage".
I regard this provision as significant because it demonstrates the breadth and range of considerations to which Community legislation in this sphere necessarily gives rise.
(1) That in issuing the Directive the Community was giving effect to the principles laid down in the Convention.
(2) That it was necessary for the Community to make further provisions for the uniform application of the Convention and its recommendations and for specific rules concerning the application of the Directive.
(3) Recognition that the European Institutions and the Member States when drafting and implementing Community legislation, in particular on the common agricultural policy, should pay full regard to the welfare requirements of animals.
(4) Recognition that differences between Member States may distort conditions of competition and interfere with the smooth running of the organisation of the market in animals.
(5) Recognition that there was a need to establish common minimum standards for the protection of animals kept for farming purposes in order to ensure rational development for production and to facilitate the organisation of the market in animals.
"Member States shall make provision to ensure that the owners or keepers take all reasonable steps to ensure the welfare of animals under their care and to ensure that those animals are not caused any unnecessary pain, suffering or injury".
"Member States shall ensure that the conditions under which animals (other than fish, reptiles or amphibians) are bred or kept, having regard to their species and to their degree of development, adaptation and domestication, and to their physiological and ethological needs in accordance with established experience and scientific knowledge, comply with the provisions set out in the Annex".
"1. Member States shall bring into force the laws, regulations and administrative provisions, including any sanctions, necessary to comply with this Directive not later than 31 December 1999, subject to any different decision taken by the Council in the light of the report referred to in Article 8. They shall forthwith inform the Commission thereof.
When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be paid down by Member States.
2. However, after 31 December 1999, Member States may, in compliance with the general rules of the Treaty, maintain or apply with their territories stricter provisions for the protection of animals kept for farming purposes than those laid down in this Directive. They shall inform the Commission of any such measures.
3. Member States shall communicate to the Commission the texts of the main provisions of national law which they adopt in the field governed by this Directive".
"Animals shall be cared for by a sufficient number of staff who possess the appropriate ability, knowledge and professional competence".
The requirement in connection with freedom of movement is in precisely the same form as Article 4 of the Convention. The requirement for inspection assumes some specificity for animals kept in a system in which their welfare depends on frequent human attention, where the requirement is that they be inspected at least once a day. But the requirement for animals in other systems is expressed as a requirement to be inspected at intervals sufficient to avoid any suffering. Mr Singh drew attention to the requirement that "accommodation and fittings for securing animals should be constructed and maintained so that there are no sharp edges or protrusions likely to cause injury to the animals", as an example of a specific obligation, adequately defined so as to be enforceable as stated. I have to say that whilst it identifies a specific, potential cause of injury to animals it lacks the specificity which would facilitate ready enforcement, namely a reference to the dimensions and character of the edges and lengths of protrusions.
"14. Animals must be fed a wholesome diet which is appropriate to their age and species and which is fed to them in sufficient quantity to maintain them in good health and satisfy their nutritional needs. No animal shall be provided with food or liquid in a manner, nor shall such food or liquid contain any substance, which may cause unnecessary suffering or injury.
15. All animals must have access to feed at intervals appropriate to their physiological needs.
16. All animals must have access to a suitable water supply or be able to satisfy their fluid intake needs by other means.
17. Feeding and watering equipment must be designed, constructed and placed so that contamination of food and water and the harmful effects of competition between the animals are minimised.
18. No other substance, with the exception of those given for therapeutic or prophylactic purposes or for the purposes of zootechnical treatment as defined in Article 1(2)(c) of Directive 96/22/EEC, must be administered to an animal unless it has been demonstrated by scientific studies of animal welfare or established experience that the effect of that substance is not detrimental to the health or welfare of the animal".
"20. Natural or artificial breeding or breeding procedures which cause or are likely to cause suffering or injury to any of the animals concerned must not be practised.
This provision shall not preclude the use of certain procedures likely to cause minimal or momentary suffering or injury, or which might necessitate interventions which would not cause lasting injury, where these are allowed by national provisions.
21. No animal shall be kept for farming purposes unless it can reasonably be expected, on the basis of its genotype or phenotype, that it can be kept without detrimental effect on its health or welfare".
"Animals shall be fed a wholesome diet which is appropriate to their age and species and which is fed to them in sufficient quantity to maintain them in good health, to satisfy their nutritional needs and to promote a positive state of wellbeing".
The words emphasised are additional to the requirements imposed by the Directive. Again, paragraph 24 of Schedule 1, which transposes paragraph 15 of the Annex, provides:
"All animals shall have access to feed at intervals appropriate to their physiological needs (and, in any case, at least once a day), except where a veterinary surgeon acting in the exercise of his profession otherwise directs".
The Grounds of Challenge
(1) The failure of the Defendant properly to implement and enforce Article 4 of Council Directive 98/58/EC of 20th July 1998 concerning the protection of animals kept for farming purposes.
(2) The failure of DEFRA to apply the correct burden of proof when deciding how to enforce the requirements of Article 4 of the Directive and paragraph 21 of the Annex thereto.
(3) The failure of DEFRA to comply with paragraph 14 of the Annex to the Directive (paragraph 22 of Schedule 1 to the Welfare of Farm Animals (England) Regulations 2000 SI 2000 1870 by refusing to adopt a policy of prosecution in cases where broiler breeder chickens are subjected to restricted feeding practices, which lead to the birds experiencing chronic hunger.
The Claimant has not pursued Ground (2).
Ground (1) – Failure properly to implement the Directive
(i) Article 249 of the EC Treaty provides that a Directive is binding on Member States as to the result to be achieved, but leaves to the national authorities the "choice of form and method" by which that result is achieved.
(ii) One must consider whether a Directive has been properly implemented by determining the result which the Directive requires Member States to achieve. A distinction is to be made between a "conduct result" and "an end result" (a state of affairs).
(iii) In this case the obligation is one under which the Member State must bring about a certain state of affairs, namely an end result.
(iv) The state of affairs required by the Directive is one in which no animal in any Member State is bred or kept unless the conditions in the Annex are all met.
(v) By choosing to require owners and breeders only to take all reasonable steps to ensure the specified result is achieved the Government has treated the obligation as a "conduct result" and not "an end result".
(vi) If owners and breeders do not conduct themselves as they should, there will be no coercive power available to ensure the specified result is achieved.
Member States shall take appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks.
They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty."
"There has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did" (at p.148).
"It is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that it is not necessary"(at p. 148).
"24. The rule of law is not well served if a crime is defined in terms wide enough to cover conduct which is not regarded as criminal and it is then left to the prosecuting authorities to exercise a blanket discretion not to prosecute to avoid injustice.
The Case Law
"[T]he transposition of a Directive into domestic law does not necessarily require that its provisions be incorporated formally and verbatim in express, specific legislation".
To this Mr Singh's response is that, if a State chooses to transpose verbatim, it should not qualify the language in such a way as to lead to a lack of correspondence with the terms employed by the Directive. He relies upon Case 412/85 Commission v. Germany  ECR 3503, where a general prohibition on the deliberate killing or capture of species of birds was transposed so as not to apply where the acts concerned took place in the course of the normal use of the land for agriculture, forestry or fishing purposes or in the context of the exploitation of the products obtained for such activities. The transposition was held to contain derogations not meeting the requirement of the Directive.
"… there may be great differences in the types of obligations which Directives impose on the Member States and therefore in the results which must be achieved". Case C-60/01 Commission v. France  ECR 1-5679.
"Directives [which] lay down that Member States are to take the necessary measures to ensure that certain objectives formulated in general and unquantifiable terms are attained, whilst leaving them some discretion as to the nature of the measures to be taken" (para 27).
(2) I am unable to conclude that an obligation upon owners and breeders to take reasonable steps to ensure the conditions contained in the Directive are complied with is such a departure from the Directive that the result required will not be achieved. If owners and breeders take reasonable steps to achieve the conditions it is likely that the conditions will be met.
(3) Whilst the state of affairs to be achieved is that animals are to be bred and kept in conditions which comply with the conditions in the Annex, there are any number of measures which a Member State can choose so as to fully implement a Directive in fact and law and:
"From the fact that a situation is not in conformity with the objectives laid down in the first paragraph of Article 4 of the amended Directive, then, the direct inference may not in fact be drawn that the Member State concerned has necessarily failed to fulfil its obligation …" (Case C-365/97 Commission v. Italy  ECR 1-7773, para 68).
DEFRA controls and supervises measures specifically designed to "ensure high standards of animal health and welfare" (DEFRA OBJECTIVE).
(4) The state of affairs to be achieved is not to be confused with the obligation imposed on a Member State to achieve it.
(5) The suggested distinction between an "end result" and a "conduct result" does not demonstrate a failure to implement but reflects the distinction in Article 249 between the result and the "method and form" by which the result is achieved.
(6) I do not accept that the inclusion of words qualifying the duty as one requiring, "reasonable steps", amounts to a derogation from the obligation imposed by the Directive. The qualified duty is directed towards achieving exactly the same result, namely compliance with the scheduled requirements. The fulfilment of the duty by taking reasonable steps is apt and likely to give rise to substantial compliance and is within the margin of discretion allowed to a Member State.
(7) In considering whether there has been a significant failure to achieve the aims of the Directive, regard can be had to the whole system of implementation including the Code enacted under statutory authority, the SVS inspection procedures, guidance, instruction and the availability of warning procedures, which are backed by a criminal sanction. These are not mere administrative procedures.
(8) The Defendant was entitled to take the view that best practice would not be most effectively promoted by a confrontational system based exclusively on criminal prosecution. Further, it was entitled to take the view that the imposition of sanctions for the commission of an offence of strict liability was:
(a) capable of being regarded as inherently undesirable and disproportionate;
(9) There is no evidence to enable the Court to conclude that there has been a failure to implement because of a protracted period of inaction in the face of failures by owners and breeders to comply with the scheduled requirements.
(10) A limited excursion into the manner of implementation by other Member States discloses Germany to have adopted an administrative sanction ("offence") "committed by anyone who acts deliberately or improperly". Sweden legislated for "offences committed deliberately or through negligence". Having regard to the limits of the excursion, I should emphasise that the results do not form part of my substantial reasoning for the conclusion I have reached that Ground 1 must fail.
Ground (2) - Restricted feeding
"Animals should be fed a wholesome diet which is appropriate to their age and species and which is fed to them in sufficient quantity to maintain them in good health, to satisfy their nutritional needs and to promote a positive state of well-being".
"More severe and prolonged feed restriction is routinely applied to broiler breeders. Intakes of 50% of normal ad libitum intake are applied for most of the rearing period with proportionately less restriction during lay".
Exactly the same passage is referred to in the statement of Mr Pritchard, but he quotes the sentences immediately following upon the words "restriction during lay", which are as follows:-
"This restriction is needed to optimise reproductive performance and may be associated with some welfare disadvantages not at least in relation to one of the 'five freedoms' (freedom from hunger). Conversely such restriction also results in the welfare benefits of considerably reduced incidences of metabolic disorders and mortality".
The point of difference is important because broiler breeders, if left to feed ad libitum, would be relieved of hunger, but at risk of "metabolic disorders and mortality".
1. Freedom from hunger and thirst – by ready access to fresh water and a diet to maintain full health and vigour;
2. Freedom from discomfort – by providing an appropriate environment including shelter and a comfortable resting area;
3. Freedom from pain, injury or disease – by prevention or rapid diagnosis and treatment;
4. Freedom to express normal behaviour – by providing sufficient space, proper facilities and company of the animals' own kind;
5. Freedom from fear and distress - by ensuring conditions and treatment to avoid mental suffering.
"Broiler breeders are truly caught in a welfare dilemma, because the management practices that are necessary to ensure health and reproductive competence may also result in the reduction in other aspects of welfare. In this paper I review the welfare concerns associated with feed restriction of broiler breeders. Broiler breeders show evidence of physiological stress as well as increased incidents of abnormal behaviours, and are also chronically hungry. Alternative methods of decreasing feed intake, dietary dilution or the use of anorexic agents, are also discussed. Thus far, all of these methods have proven unsatisfactory in terms of body weight control, and in addition they do not necessarily improve welfare. Emphasis needs to continue to be placed on developing alternatives to, and modifications of, current feed restriction programmes in order to improve broiler breeder welfare. In addition, the use of genetic selection to decrease the need for restriction should be further explored" (emphasis added).
The legal issue or "dilemma" is whether practices "necessary to ensure health and reproductive competence" can also constitute practices which do not "promote the positive state of well-being of broiler breeders" or "maintain them in good health" (para 22 Regulations).
The body weight gains of broiler breeders are limited by feed restriction to control reproduction and mortality. If female broiler breeders are fed ad libitum, egg production and hatchability are poor and mortality is high (Table 1). Feed restriction controls ovulation rate and restores normal function to the reproductive process (see below). In males, feed restriction maximises fertility (Table 2) by controlling the size of the birds and the ability to mate (Hocking 1990; Hocking et al, 1996). High mortality in broiler breeders fed ad libitum is largely related to cardiovascular failure in females and culling for lameness in males.
Whereas the housing of commercial broiler breeders compares favourably to that of battery hens, the degree of feed restriction to which they are subject has raised concerns that they may be chronically stressed. This review will discuss the assessment of the welfare of feed restricted broiler breeders of both sexes and how it can be audited. A number of other welfare issues are present in commercial systems of production that are largely specific to this group of farm animals and these will be discussed before a brief examination of the welfare of broiler breeders in alternative systems."
"Controlling body weight had undoubtedly been responsible for a large part of the decrease over time in the prevalence of musculo–skeletal disease and genetic selection for improved leg health in growing birds may also have contributed".
He also points out that aggression in males has been the focus of some concern, but states there is no evidence that feed restriction has increased the prevalence of aggressive mating or that feed restriction is associated with increased aggression. He devoted a whole section to the subject 'Assessing Hunger in Broiler Breeders':
"The objective of assessing the subjective psychological feeling of stress associated with hunger in feed restricted broiler breeders is problematic and has not been resolved. The degree of feed restriction changes with age and reaches a maximum of about 0.75 at 10-12 weeks of age as measured by the reduction in feed intake as a proportion of birds fed ad libitum (Fig 1). Comparisons of body weight or feed intake of restricted - as a proportion of ad libitum-fed birds are misleading because of the large differences in body weight arising from the disparate allocation of feed. Prediction of the feed intake of restricted broiler breeders as a proportion of the feed consumed by ad libitum-fed birds of the same body weight by regression analysis, shows that feed intake declined to 0.45 during rearing (Hocking, 1993c). Restricted birds continue to gain weight throughout the rearing period in response to regular increases in feed allocation (Figure 1). They cannot therefore be described as starving and are substantially better fed than would be those farm animals in many traditional farming systems where maintenance feeding, at best, prevailed for many months. Restricted birds rapidly consume their feed compared with birds fed ad libitum and comparisons of rates of eating (Savory et al., 1993b) are subject to the problems of comparing birds of different size, physiological maturity and prior experience, over very short periods of time (several minutes). Birds fed on restricted diets adopt different feeding strategies to those fed ad libitum. Large quantities of feed are stored in the crop of restricted birds and competition ensures that they quickly learn to consume feed as rapidly as possible, whereas birds fed ad libitum eat regularly throughout the day and night and do not store large quantities of feed in the crop. Attempts have therefore been made in our research to assess how well feed restricted birds cope with the hunger that is imposed upon them, and whether the normal biological systems for surviving limited feed supplies in natural conditions are compromised in any way.
Compared with ad libitum feeding, feed restriction is invariably associated with a change in behaviour: restricted birds spend less time resting and more time foraging (scratching and pecking the litter), drinking and spot pecking, and than birds fed ad libitum (Kostal et al., 1992; Savory et al., 1992; Hocking 1993c; Savory et al., 1993a; Savory and Maros 1993; Savory et al., 1993b; Hocking 1996; Hocking et al., 2001). An increase in the heterophil-lymphocyte ratio, the proportion of basophilic cells and an increase in plasma corticosterone concentration (recognised indexes of physiological stress) were reported in many but not all experiments (Maxwell et al., 1990; Maxwell et al., 1992; Hocking et al., 1993; Savory et al., 1993a; Savory and Maros 1993; Savory et al., 1993b; Hocking et al., 1996; Hocking et al., 2001). There is little evidence that feed restriction compromised fundamental bodily functions, as indicated by a profile of several enzyme systems and when differences were detected they were in favour of the feed restricted birds (Hocking et al., 1993; Hocking et al., 1996; Hocking et al., 2001). Freeman (1985) argued that many of the responses of the birds to perceived stressors were normal adaptations for survival and that those which would leave the animal unprotected, such as impaired immune function, are more satisfactory indices of stress. Indirect measures of immune function are generally at least as good if not better in feed restricted broiler breeders than ad libitum controls (Katanbaf et al., 1989; O'Sullivan et al., 1991; Hocking et al., 1996). Hunger and satiety are not discrete opposing states but represent two extremes of a continuous scale that might be measured by determining the strength of the motivation to feed. Research into motivation to feed, by measuring operant responses in feed restricted broiler breeders has shown that the strength of motivation is largely dependent on the size of the restricted bird in relation to its potential and, somewhat anomalously, that the motivation to feed is greater after a larger than a smaller meal (Savory et al., 1993b; Savory and Mann, 1999; Savory and Lariviere, 2000).
If hungry birds are able to conduct normal foraging activity in response to feed restriction then the psychological feelings of hunger are likely to be minimised or dissipated. Experimental evidence by Savory and co-workers suggests that stereotypic behaviour has de-arousing properties that might help the birds to cope with the stress of feed restriction (Kostal et al., 1992; Savory et al., 1992; Savory et al., 1993a). Support for this proposal is also found in the results of an experiment that compared ad libitum and conventionally fed broiler breeders with those in which feed restriction led to body weights that were 0.24, 0.40, 0.55, 0.70 and 0.85 of ad libitum-fed contemporaries. The sum of oral behaviours (drinking, feeding, foraging and spot pecking) was similar in all 7 groups and comparable with the proportion of time spent foraging in feral fowl (Hocking et al., 1996). Furthermore, spot pecking occurs at a great frequency in restricted broiler breeders in experimental pens than in commercial flocks (Figure 3) where flock size is large and there is ready access to litter. The key practical application of these results is that restricted broiler breeders should have access to a suitable foraging substrate and it is worth noting that many studies of stereotypic behaviour in restricted broiler breeders have been conducted on birds kept in cages….The most promising long-term strategy to improve the welfare of feed restricted broiler breeders, and to prevent the degree of feed restriction becoming greater with further selection for improved feed efficiency, is genetic selection to decrease the prevalence of multiple ovulation. If broiler breeders could be selected to ovulate a single ovum in each daily cycle, a more generous feed restriction programme that optimised the welfare of the birds could be adopted. The use of genetic markers for single ovulation is promising in this respect and represents a potential solution that we are pursuing at Roslin. There is some evidence that if successful this strategy will improve welfare as dwarf broiler breeders that inherit a sex-linked gene affecting body weight are about one-third smaller than birds carrying the normal allele, have a lower number of ovarian follicles (Hocking et al., 1987) and require less severe feed restriction than conventional broiler breeders (Whitehead et al., 1987).
Figure 1. (a) Feed consumption of broiler breeder females fed ad libitum (solid line) and feed allocations to birds restricted to achieve target body weight (dotted line) from 0 to 60 weeks of age and (b) actual body weights attained by the same birds.
"It is declared that:
(1) In concluding that the current regime of restricted feeding of broiler breeder chickens is lawful, DEFRA has misdirected itself in law as to the effect of the Welfare of Farmed Animals in (England) Regulations 2000 and/or Council Directive 98/58 EC.
(2) In consequence DEFRA's policy of not prosecuting an owner or keeper of broiler breeder chickens which are subjected to the current regime of restricted feeding is unlawful."
(i) the period of feed restrictions is limited and directed to a particular need;
(ii) the quantity of what they want to eat is not a good benchmark;
(iii) the weight gain and the absence of compromise to essential bodily functions that accompany feed restrictions is a significant factor against the conclusion argued for;
(iv) the acceptance of hunger in other forms of husbandry is routine and it has not been shown that the birds can be described as starving;
(v) the availability of methods of reducing the impact of restricted feeding, for example by encouraging foraging, and further genetic selection and the ongoing research aimed at minimising or dissipating feelings of hunger, comprise material evidence pointing to the absence of a state of non-compliance with the conditions required by the Directive and the Regulations, and Regulation 22 in particular.
Balancing the needs of animals and the commercial interests of intensive farming.
(1) The ethical position can be taken to be fully and sufficiently expressed in the Convention and the Protocol to the Treaty on Improved Protection and Respect for the Welfare of Animals.
(2) The European Union has acted pursuant to the Convention and issued the Directive.
(3) It is impossible to conclude that the raft of measures, including not just legislation but Codes, advisory bodies, continuing research, the existence of veterinary and welfare divisions and the existence of monitoring and inspection teams are not sufficient evidence of an ample and effective response to the ethical call from the European Union.
(4) The Directive plainly contemplates that the measures which it regards as the "minimum standards" should be taken for ethical and for market purposes. It is the market which creates the constraints which give rise to the need for protective measures but the tenor and content of the Directive (reflecting the Convention) is not the pursuit of absolutism in standards. It is imperative for the enforcement of ethical standards recognising minimum standards of welfare of animals in intensive farming. The evidence does not disclose a general position in which the one is being sacrificed for the other but an enormous input of learning, research, consideration and measures of implementation which will continually improve the standard of the conditions in which broilers are reared.
MR JUSTICE NEWMAN: For the reasons given in the judgment, which I now hand down, this application for judicial review fails.
MS DEMETRIOU: My Lord, the defendant seeks its costs, to be subject to detailed assessment. I see that the claimant has put in a note of costs. I do not know if my Lord would prefer me to make submissions on the note now or wait for my learned friend.
MR JUSTICE NEWMAN: I would have thought it would be better if you were to make your submissions after Mr Singh has made his because he has not developed his. He has given us notice of some authority and some citations. So I would have thought you will not be disadvantaged if you do that. Mr Singh?
MR SINGH: My Lord, as you know from your note, we do respectfully submit that, although costs normally follow the event, there is always a discretion in the court, in the public law context in particular. Although I cannot say that there is an universal practice that in public interest cases the court will not make an order as to costs, nevertheless there are examples, including the Privy Council decision in a New Zealand case to which we made reference, and from this court, where judicial review cases have been brought by an organisation, not to vindicate its own private interest but the public interest in the rule of law and the welfare of a section of the population, perhaps for, as in this case, the welfare of animals.
So, my Lord, our introductory submission is in essence that this is one of those cases where it is just and appropriate that your Lordship should exercise the discretion that the court has not to make an award of costs.
My Lord, the points that we make in support of that are summarised in paragraph 1 of our note, and I will just briefly run through those, if I may. The first is that the claim raised serious issues of law of wider importance, including about whether the United Kingdom had correctly implemented Community Law obligations. I will not repeat the arguments, but your Lordship recalls much of the debate was about that.
Secondly, the claim raised an important issue of animal welfare, about restricted feeding regimes, where, as your Lordship has noted in the judgment, it has become clear that it has been accepted by the defendants that the birds we are referring to are hungry. But the question has been about the legal significance of that, and we again submit that it was in the public interest and reasonable that should have been ventilated in court.
My Lord, the third point we make is the point that Lord Woolf, for example, alluded to in the New Zealand Mauri case, that this is a case brought in the public interest, not for any private gain. Of course many judicial review cases, although in one sense they raise issues of public interest, any question about the rule of law and the legality of administrative action could be said inherently to raise issues of public interest. But nevertheless in my submission the lines the courts have drawn are between those cases where, say, a planning developer or the like is vindicating the rule of law, but in doing that is obviously pursuing a case for its own advantage; contrast that with cases like the New Zealand Mauri case, the ex parte Challenger case, which is referred to in the note from Mr Fordham's textbook, and the like, where it has been acknowledged that the case is brought not for private gain, but for public interest reasons.
The fourth reason we advance is that the claimant is in any view a non-government organisation of limited means, while the defendant is obviously a large government department. Obviously we are not asking for our costs, but all we are saying is that costs should lie where they fall, given the public funds that are available to the defendant.
My Lord, I do not think it is necessary, unless you would like me to, to go to the New Zealand Mauri case because we have set out in our note the only paragraph in the Privy Council judgment which is relevant to the issue of costs, and the note from Mr Fordham's handbook --
MR JUSTICE NEWMAN: I have not had a chance to look at that.
MR SINGH: I wonder if one could just briefly go to that. It is, as always, a helpful summary of cases decided by the courts, particularly in this jurisdiction. Under the heading "No Order as to Costs, (a) Public Interest Cases" the New Zealand case is referred to, then the decision in ex parte Challenger, which I have already mentioned. That was a decision of Harrison J's. No order was made in the particular circumstances, where there was a genuine case of potential importance. The claimants were of limited means and it was a human rights case. Now, I accept that this is not, obviously, a human rights case, but there were here, we submit, issues of European Community law and animal welfare issues, which are equally important.
Another example is given, Shelter, a decision obviously in the housing context, the Greenpeace case, an environmental case, (Inaudible) v Anderson. I had forgotten, I must confess, my Lord, that in that famous case during war time the ultimate order as to costs in the House of Lords was that there should not be an order. And then, my Lord, an Australian decision is referred to, an environmental case brought in the public interest, where there was no order as to costs. The Swale Borough Council v Medway Ports Authority case is an English decision. There was no order because:
"There had been a breach of legitimate expectation but no remedy was given because of delay."
And the final authority referred to is the well-known case about Mr Blackburn. "He has served a useful purpose in bringing the matter to our attention," said the court and there was no order as to costs.
Admittedly, it is not an universal practice. I note, for example, that, under "(c) Contrasting Cases", Mr Fordham's textbook refers to the ex parte Fish, (inaudible) organisation case, where it is fair to note that Glydewell LJ in 1993 said:
"The court's discretion does not apply differently or in any special way in circumstances where the costs arise in judicial review proceedings."
What I would say about that, my Lord, is that -- I recall the case. As it happens, I was junior counsel for the government in that case and what I would say about that is that the date is significant; it was decided in 1993, before, if I may say so, the recent line of authorities has really emerged drawing this line between genuine public interest cases and other judicial review cases brought to vindicate private rights, and in particular the New Zealand Mauri Council decision, from my recollection, had not yet been decided. It is certainly reported in 1994 and to the best of my recollection it was not something that one knew about when the Court of Appeal made the order for costs in the ex parte Fish (inaudible) Organisation case.
MR JUSTICE NEWMAN: I think we have probably moved on also in the past ten years in a procedural sense, in that the rules on standing have really become relaxed.
MR SINGH: Yes, indeed.
MR JUSTICE NEWMAN: So it is not an uncommon feature now to have representative bodies, pressure groups, all sorts of organisations, being accorded standing before the court, which ten years ago Glydewell LJ probably would not have been able to foresee.
MR SINGH: I think that is a accurate observation, yes.
MR JUSTICE NEWMAN: I think it gives rise to two difficulties, though, Mr Singh. It gives rise to -- in your favour, it could be said, it gives rise to the need to have some eye for where the public interest is truly being invoked or represented, as opposed to distinguishing those cases from those where, although they are representing a body of public opinion, it is not really the public interest, but the concerted pressure from a group of people who may share the same interests, who are themselves attempting to clarify the law, and it may be that the situation differs and one cannot have a situation where ad lib people are litigating with immunity from costs. So there is a difficult balance to achieve, is there not?
MR SINGH: It is certainly an issue of discretion for the court, having regard as always to all the circumstances of the case, and that is why I have not put it as highly as a general principle. But nevertheless, having regard to the particular circumstances of this case, we submit that is the just order. To address my Lord's concerns if I may, if one thinks, for example, about the law of charities, there is a public interest requirement, as I understand it, for there to be a charitable purpose but, as I understand it, it has also always been the law that you do not have to vindicate the interests of the entire public; it can be a section of the public. So I would respectfully ask your Lordship to bear in mind that it can be a perfectly proper public interest case even though public opinion may be divided, for example, on the issue.
What we would submit is that the real public interest is to bring the important issue of law to the court's attention so that what may be arguably a abuse of power or an error of public law generally can be put right, and we would also draw attention to the obvious fact, my Lord, that in this case after some detailed grounds have been put in objecting to the grant of permission, Wilson J thought it right to grant permission on the papers. So it was clearly regarded as one of the cases that ought to go forward.
Obviously at the end of the day we have lost and we acknowledge that, but we submit that the normal order is not one which is just in this case.
MR JUSTICE NEWMAN: Mr Singh, can I, without breaking your chain of submission, ask you? You say the claimants are of limited means?
MR SINGH: Yes.
MR JUSTICE NEWMAN: I do not know anything about its means. I imagine that its means are derived from the private subscription of members, is it?
MR SINGH: That is my instructions, yes. I do not have any more detailed information than that it is of limited means, my Lord. I hope that is the sort of thing that one can --
MR JUSTICE NEWMAN: I can assume, but can I also assume that, among the objects, it is in fact a limited company in some guise or another?
MR SINGH: It is. It is limited by guarantee.
MR JUSTICE NEWMAN: Limited by guarantee. Can I understand that it has among its objects, as necessary, the taking of proceedings and that those who subscribe subscribe -- whatever they do, by way of donation or membership subscription -- understanding that their money will be expended in litigation, or could be expended in litigation?
MR SINGH: I would need to take instructions. (Pause)
My Lord, as one might expect, it is not one of the express objectives of the organisation, but it is fair to observe that it is clearly an implied object, and in the past the organisation has been involved in earlier judicial review cases, either as an interested party -- an intervenor, rather -- or as a party itself.
MR JUSTICE NEWMAN: Yes, but it does not mean -- they do not have to pass a resolution or seek the members' approval to taking litigation?
MR SINGH: No, there is a board that would be involved in such a decision but not the membership generally. My Lord, may I make just one other point before I sit down?
MR JUSTICE NEWMAN: Of course.
MR SINGH: It is in connection with my Lord's point to me a moment ago about standing. We would respectfully submit, my Lord, that that is a point that if anything goes in favour of this claimant on this issue of costs, because of course in, say, a human rights case there might well be an individual, and often, for reasons my Lord can readily understand, those who are campaigning in the area might well seek to find a test case litigant who is going to qualify for public funding, and that obviously has consequences for protection against costs orders and the like. In the present context obviously there is not, by definition, going to be a human litigant because of the nature of animal welfare legislation and so the only sort of body, if ever the rule of law is going to be vindicated, which will bring such cases is likely to be an engineer like my client and it has been accorded standing. Permission was granted, no doubt because it was recognised that it is a responsible body bringing this as a genuine case. So we respectfully ask your Lordship to bear that in mind in exercising your discretion as well.
MR JUSTICE NEWMAN: Before you sit down, can I in fairness put something to you, which is in my mind?
MR SINGH: Yes.
MR JUSTICE NEWMAN: If I was minded to exercise my discretion to some degree in your favour, do I not have to bear in mind that there was one ground challenged, which introduced a large element into the case, which you abandoned.
MR SINGH: My Lord, it is obviously again one of the factors to be taken into account in the overall balance. All I would say about that, my Lord, is that again we hope we acted responsibly because we were given permission without limitation, and obviously until the defendant's evidence and detailed grounds of resistance are filed it is difficult for a claimant to know exactly how it should put its case eventually. But we have kept the issues under review at all stages and, having received the defendant's evidence and detailed grounds of resistance and in preparing for the hearing, we at that stage, which we submit was as early as was reasonably practicable, gave notice that we were not going to be pursuing that and we also obviously took into account what Wilson J had said in regard to permission.
MR JUSTICE NEWMAN: Thank you very much. Yes, Ms Demetriou?
MS DEMETRIOU: My Lord, it is important to bear in mind in my submission that the cases referred to by my learned friend are exceptional and that the normal course in these cases is that costs should follow the event. As my Lord pointed out, the standing rules have relaxed and that gives rise to a point in the defendant's favour on this issue, which is that actions brought in the public interest by campaigning bodies such as the claimant are now commonplace and, as my Lord indicated, it is important that they should not be able to pursue through litigation whichever points they deem to be in the public interest with immunity from costs. It would be inappropriate for the taxpayer to bear costs in such circumstances.
So the court does have to be very careful when exercising its discretion to depart from the normal course, in my submission. That is demonstrated by the fact in judicial review proceedings, in contrast to private proceedings, there is a procedure for organisations such as the claimant to apply for a pre-emptive costs order, which would achieve exactly the same result as the claimants are asking for now.
My Lord, the conditions that have to be satisfied by a claimant in the position of Compassion in World Farming when applying for a pre-emptive costs order are fairly strict in that they have to show at the stage at which they apply that the merits of the case are strong. So the court has to be satisfied that the claim is indeed one which is appropriate to be litigated in the public interest.
But perhaps more significantly, the court will have regard to the financial resources of the claimant, and it is normal to submit evidence of financial resources. As the Child Poverty Action Group case, which my Lord is no doubt familiar with, established, generally speaking an order will not be made unless the court finds that the claimant would probably discontinue the proceedings in the absence of the order.
The claimant did not apply for a pre-emptive costs order in this case, no doubt because it considered that it would not satisfy those conditions. There is no evidence before the court as to its financial means. One can, putting at its lowest, assume that, by virtue of the fact that it did not apply for a pre-emptive costs order, it is in a position to pay costs because it pursued the litigation knowing that there was a risk that costs would be awarded against it.
In my submission, my Lord, it would entirely inappropriate for the court to exercise its discretion to achieve by the back door something which the claimants had not been able to achieve by the proper route, by applying for a pre-emptive costs order. So in my submission there are not really any grounds in this case for departing from the normal principle that costs follow the event.
In terms of the New Zealand case referred to by my learned friend, I would note there that in the passage which Mr Singh set out in his note it was important for the court that there was an undesirable lack of clarity in an important area of law. The reason for that lack of clarity arose, my Lord will see, because different views had been expressed by different members of the Court of Appeal on a particular issue.
My Lord, this case is very different, in that your Lordship has in very clear terms found for the defendant. There is no indication in my Lord's judgment that there was any lack of clarity in the law and in my submission the principles in the New Zealand case are therefore not applicable to the facts of the present case. Unless I can help any further --
MR JUSTICE NEWMAN: No, you have been very helpful. Thank you very much indeed. Mr Singh, would you like to respond?
MR SINGH: May I reply briefly on the point about pre-emptive costs orders? My Lord, in my submission it is wrong to suggest that there is a link between those two jurisdictions. This court has two distinct jurisdictions. One is the general jurisdiction, which is at large there is a discretion under Part 44, Rule 3.1, as to whether to make any order for costs at all and that of course is because the court is well equipped after the case has been fully decided to exercise that discretion at large.
In contrast to that, the court has recognised that in very exceptional circumstances, before the court is ever in a position to know what all the factors going to its discretion are ever likely to be, at a pre-emptive stage the court may issue an order saying that there will be no order as to costs or perhaps a ceiling as to costs, no matter what the outcome, and one can readily understand why the courts have said that that is to be an exceptional kind of order, subject to very strict conditions. The fact that that kind of order was not sought or made should not in any way preclude the court in my submission from exercising its more general discretion at the post-decision stage.
The only other thing I would like to say on this is that, yes, there is a jurisdiction to grant a pre-emptive costs order but since that decision in CPAG, while a number of post-decision orders of the kind I seek today have been made by this court, so far as I am aware this court has never made in fact a full pre-emptive costs order. In practice it is very difficult indeed to obtain. But there is one case of which I am aware, in which in fact I had some role to play, the CND case last year, in which the court made a partial pre-emptive costs order. It imposed a ceiling as to the exposure to liability to costs in the sum of £25,000. But that is, as far as I am aware, the only time even a partial order has been made at a pre-emptive stage. In my respectful submission there is simply no merit in the suggestion that your Lordship should draw the link between the two different jurisdictions.