Flint Bishop scores crucial High Court victory for the Food Standards Agency

Nick Wells

East Midlands law firm Flint Bishop has secured an important victory for UK government agency the Food Standards Agency, successfully defending the FSA against a High Court judicial review challenge in the reported case of R (on the application of Agro Foods (Ashford) Ltd) v Food Standards Agency [2019] EWHC 2718 (Admin), [2019] WLR(D) 581.

Commercial litigation partner Nick Wells has acted for the FSA, a non-ministerial central government department responsible for food hygiene regulations and ensuring compliance in England, Wales and Northern Ireland, for a number of years.

He has represented the FSA in several High Court claims as well as an intervention in a case against the Netherlands government in the Court of Justice of the European Union. He has developed real expertise in the EU and domestic legislation surrounding the financing of the FSA’s inspection services, known as official controls, which must be provided to all approved meat establishments in the UK.

Flint Bishop and Wells were retained by the FSA to defend this judicial review claim, which was issued by one such establishment in the Administrative Court, a specialist list of the Queen’s Bench Division of the High Court, and related to the meaning of Regulation 4 of a UK statutory instrument implementing EU law known as the Meat (Official Control Charges) (England) Regulations 2009.

Regulation 4 gives the FSA the power to refuse to provide further official controls where a court judgment has been obtained for non-payment of official controls charges and remains unsatisfied. The FSA interpreted this power as allowing it to refuse to provide official controls at any premises at which a judgment has been obtained, which enabled it to reduce the risk of insolvencies by FBOs to avoid payment of official controls charges where, for example, phoenix companies could be used.

The consequences of a successful challenge to the FSA could have been worth millions of pounds and require additional taxpayer funding to plug funding gaps caused by non-payment of official controls charges, as well as provide a loophole to industry to avoid EU mandatory charging.

Following a full hearing at the Royal Courts of Justice in front of renowned public law specialist QC and Deputy High Court Judge, Michael Fordham QC, a 22 page written judgment has been handed down, in which the Court held that the FSA’s interpretation was correct and the judicial review claim was dismissed in its entirety, handing Flint Bishop and the FSA a crucial victory.

Nick Wells, who led the legal team, said: “This was a challenging case for the FSA and the legal team, as it involved legislation that was enacted between 2000 and 2009, with limited records from much of that period to demonstrate the necessary meaning of Regulation 4. It is very satisfying to have finally resolved this long-running problem in the FSA’s favour and the decision of the High Court has proved that the FSA’s position, and the advice that we have provided on that position, has been correct and justified all along.

“The FSA can now continue with its policy on the use of Regulation 4 with the comfort of a supportive reported High Court judgment to protect the FSA and the taxpayer from potentially significant funding gaps from lost official controls charges.”

The full detailed judgment in the case R (on the application of Agro Foods (Ashford) Ltd) v Food Standards Agency [2019] EWHC 2718 (Admin), [2019] WLR(D) 581, can be read here, or a case report summary digest here.