QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (On the application of ZOOLIFE INTERNATIONAL LTD)
|- and -
|THE SECRETARY OF STATE FOR ENVIROMENT, FOOD AND RURAL AFFAIRS
|(1) LONDON BOROUGH OF LAMBETH
(2) COUNTY HALL AQUARIUM LTD t/a THE LONDON AQUARIUM
(3) INTERNATIONAL ZOO VETERINARY GROUP
(4) SUE THORNTON
James Maurici (instructed by DEFRA Legal) for the Defendant .
The Interested Parties were neither represented nor present.
Hearing date: 20 November 2007
Further written submissions served on 26, 27 and 30 November 2007
Crown Copyright ©
The Honourable Mr Justice Silber :
II. The Background to this Application and the claim now being made
III. The Claimants
IV The Appointment of the Inspectors
(i) the exceptional nature of his work at the Aquarium;
(ii) the value of his intellectual property rights in connection with the activities and research he was conducting there;
(iii) that Miss Thornton was an employee of IZVG, which was a direct competitor of the claimant;
(iv) that the inspection would be likely to require him to reveal to Miss Thornton confidential unpublished research, methods, and techniques that were in the nature of trade secrets; and
(v) the background history of the relationship between himself/the claimant and IZVG, including the previous litigation.
"the operator [of the zoo] may give notice to the local authority of objection to any one or more of the inspectors, and the local authority or the Secretary of State as appropriate may if they think fit give effect to any such objection".
"1. A declaration that the defendant's refusal to give effect to the London Aquarium's objection to the nomination of Ms Sue Thornton as the List 1 inspector for the purposes of a periodic inspection of the Aquarium pursuant to the Zoo Licensing Act 1981, was unlawful;
2. A declaration that the defendant's reasons for its refusal to give effect to the London Aquarium's objection to the nomination of Ms Sue Thornton were inadequate;
3. A declaration that the defendant, in exercising his discretion whether or not to give effect to an objection to his nomination of a particular person as an inspector for the purposes of a periodic inspection of a zoo or aquarium pursuant to the Zoo Licensing Act 1981, should, where the reason given for the objection is a need to protect trade secrets, intellectual property and/or confidential information, take into account, and have due regard to:
(i) the fact that an inspector, notwithstanding the absence of any bad faith on his part, may obtain knowledge of trade secrets, intellectual property or confidential information which he is unable to completely put out of his mind following the inspection, and that this may be prejudicial to the interest of the person(s) to whom the trade secrets, intellectual property or confidential information belong;
(ii) any known history of intellectual property related or other disputes or litigation between the nominated inspector or his employer, and the person(s) to whom the trade secrets, intellectual property rights or confidential information belong; and
(iii) the need to draw a fair and proportionate balance between the legitimate interests of the person(s) to whom the trade secrets, intellectual property rights or confidential information belong, and the public interests served by the zoo inspection and licensing regime.".
a. whether the present claim should be dismissed as being academic ("The Academic Point Issue");
b. whether the decision in the decision letter and /or the reasoning in it can be impugned (" the Decision Letter Issue"); and
c. whether the appointment of Miss Thornton can be impugned on the grounds of apparent bias (" The Apparent Bias Issue").
V The Academic Point Issue
(i) The submissions of DEFRA
(ii) The claimants' submissions
31. In those circumstances if DEFRA refuses to reconsider its nomination of Ms Thornton or of another partner of IZVG, two consequences would follow. The first of which would be that the claimants would again have to seek an interim injunction as it did in the present case to prevent that person acting as an Inspector and the second consequence would be that the commercial relationship of the claimants with these other aquaria would again be likely to be destroyed for the simple reason that any aquarium would rather lose its vets (namely the claimants) rather than risk being closed down.
"…. I accept, as both counsel agree, that in case where there is an issue involving a public authority as to questions of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House, there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se... The discretion to hear disputes, even in the area of public law, must be exercised with caution and appeals which are academic between the parties should not be heard unless there is good reason in the public interest for doing so as for example (but only by way of example) where a discrete point of statutory construction which does not involve detailed consideration of the facts, and where large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future"
"It is well established that this House does not decide hypothetical questions. If the House were to do so, any conclusion, and the accompanying reasons, could in their turn constitute no more than obiter dicta expressed without the assistance of a concrete factual situation, and would not constitute a binding precedent for the future".
(a) Lord Hutton explained that "it is not the function of the courts to decide hypothetical questions which do not impact on the parties before them" (page 371 E );
(b) Lord Hutton expressly approved at page 371  the statement of Lord Justice-Clerk (Thompson) in Macnaughton v Macnaughton's Trustees  SC 387-392 that "our courts have consistently acted on the view that it is their function in the ordinary run of contentious litigation to decide only live, practical questions, and they have no concern with hypothetical, premature or academic questions, nor do they exist to advise litigants as to the policy which they should adopt in the ordering of their affairs"; and
(c) Lord Scott of Foscote stated that "the valuable time of the courts should be spent on real issues" (page 374 E ).
45. For all those reasons I have concluded that there is no reason as to why the present claim should be determined and that I must refuse to grant any relief to the claimants. In those circumstances, Mr. Maurici contends that I should not deal with any other of the other submissions made on this application. I am unable to accept that submission as it is desirable- if not necessary- for me to resolve the outstanding issues in case I am wrong on the academic issue and also because it might well be necessary for me to come to conclusions on the other issues when dealing with the question of costs. So I will now turn to consider the merits of the case although my comments will be obiter dicta.
VI The Decision Letter issue
(i) The claimants' submissions
49. Mr Bates dismisses as being incorrect the contention that it would be a breach of confidence by Miss Thornton to have revealed the information she gained during the inspection to a third party because DEFRA failed to appreciate the risk to direct its mind properly to this matter . Importance is attached by Mr. Bates to the fact that the commercial interests of the claimants are the products of considerable investment and research by Mr Geach and that these were important factors of which DEFRA should have taken account but did not do so.
(ii) DEFRA's submissions
"lengthy and costly preparation of confidentiality agreements between the inspection team and inspected party and their contractors would have to be completed prior to inspection and that such action is inappropriate "
"the zoo community is small and it is inevitable that inspectors, zoo vets and zoo operators would occasionally have come across each other in a professional capacity which may have led to a difference of opinion or friction".
(iii) The issue of confidentiality
"… the [1981 Act] itself requires during the inspection, the inspectors have access to all records kept by the operator in pursuance of conditions of the licence requiring conservation measures referred to in section 1A(f) to be implemented at the zoo, and the operator shall produce the records. In relation to records that may be deemed confidential it is our opinion that the zoo operator is still required to allow the inspectors access to them if the inspectors request that information from them. Refusal to do so could be seen as compromising the integrity of the inspection".
"It is our view that the zoo operator/zoo vet (depending on who owned the information) would only have a course of action with regard to breach of confidence if the zoo inspectors were to disclose or use the information without the zoo operator/ zoo vet's permission, and only then if the operator/zoo vet had made the zoo inspectors aware that the information is confidential. As our zoo inspectors act on behalf of the local authority, and inspecting vet reports is part of the remit of the inspection, there should be no reason for them to use or divulge information to a third party. This being the case we do not see there is an issue with regard to the confidential information that may be seen as part of the inspection".
(iv) Failure to give adequate weight to the claimants' position
Thus I reject this complaint of the claimants .
VII The Apparent Bias Issue
(i) The Claimants' case
(ii) DEFRA' s Submissions
"(a) in order to determine whether there was bias in a case where actual bias is not alleged "the question is whether the fair-minded and informed observer, having considered the facts would conclude that there was a real possibility that the Tribunal was biased" (per Lord hope of Craighead in Porter v Magill  2 AC 357 at 494 ). It follows that this exercise entails consideration of all the relevant facts as "the court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased" (ibid ).
(b) "Public perception of a possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson  200 CLR 488, 509 at paragraph 53 by Kirby J when he stated that "a reasonable member of the public is neither complacent nor unduly sensitive or suspicious"" (per Lord Steyn in Lawal v Northern Spirit Limited  ICR 856, 862 ).
(c) in ascertaining whether there is a case of unconscious bias, the courts must look at the matter by examining other similar analogous situations. "One does not come to the issue with a clean slate; on the contrary, the issue of unconscious bias has cropped up in various contexts which may arguably throw light on the problem" (Lord Steyn in Lawal v Northern Spirit Limited (supra), 862 ).
(d) the approach of the court is that "one starts by identifying the circumstances which are said to give rise to bias .. [a court] must concentrate on a systematic challenge and apply a principled approach to the facts on which it is called to rule" (per Lord Steyn in Lawal v Northern Spirit Limited (supra) 864-5 )
(e) the need for a Tribunal to be impartial and independent means that "it must also be impartial for an objective viewpoint, that is it must offer sufficient guarantees to exclude any legitimate doubt in this respect" (Findlay v United Kingdom (1997) 24 EHRR 221 at 224-245 and quoted with approval by Lord Bingham of Cornhill in R v Spear  1 AC 734 )."
"… precedent can be helpful in focussing the mind on the relevant issues and producing consistency of approach. In a case such as the present, however, the search is for the reaction of the fair-minded and informed observer. The court has to apply an objective assessment as to how such a person would react to the material facts. There is a danger when applying such a test that citation of authorities may cloud rather than clarify perception. The court must be careful when looking at case precedent not to permit it to drive common sense out of the window."
86. For all these reasons, the fair-minded and informed observer would be satisfied there was no real possibility that Miss Thornton, let alone the Inspectors collectively, would be biased even after taking account of past professional disputes between Mr. Geach and IZVG and which did not concern either London Aquarium or Miss Thornton.