Regina v. Dairy Produce Quota Tribunal for England and Wales
(Respondents) ex parte Caswell (A.P.) and another (A.P.)
(trading as Mr. A. R. and Mrs. E. E. Caswell) (Appellants)
JUDGMENT
Die Jovis 17° Maii 1990
Upon Report from the Appellate Committee to whom was
referred the Cause Regina against Dairy Produce Quota Tribunal
for England and Wales ex parte Caswell (A.P.) and another
(A.P.) (trading as Mr. A. R. and Mrs. E. E. Caswell), That the
Committee had heard Counsel on Monday the 26th and Tuesday the
27th days of March last, upon the Petition and Appeal of
Albert Raymond Caswell and Eirys Edwina Caswell, of
Berthylwyd, Llangynin, St. Clears, Dyfed, praying that the
matter of the Order set forth in the Schedule thereto, namely
an Order of Her Majesty’s Court of Appeal of the 26th day of
May 1989, might be reviewed before Her Majesty the Queen in
Her Court of Parliament and that the said Order might be
reversed, varied or altered or that the Petitioners might have
such other relief in the premises as to Her Majesty the Queen
in Her Court of Parliament might seem meet; as upon the case
of the Dairy Produce Quota Tribunal for England and Wales
lodged in answer to the said Appeal; and due consideration had
this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty’s Court of
Appeal (Civil Division) of the 26th day of May 1989 complained
of in the said Appeal be, and the same is hereby, Affirmed and
that the said Petition and Appeal be, and the same is hereby,
dismissed this House: And it is further Ordered, That the
Costs of the said Appellants in respect of -the said Appeal be
taxed in accordance with the Legal Aid Act 1988.
Cler: Parliamentor:
Judgment: 17.5.90
HOUSE OF LORDS
REGINA
v.
DAIRY PRODUCE QUOTA TRIBUNAL FOR
ENGLAND AND WALES
(RESPONDENTS)
EX PARTE CASWELL (A.P.) AND ANOTHER (A.P.)
(TRADING AS MR. A. R. AND MRS. E. E. CASWELL)
(APPELLANTS)
Lord Bridge of Harwich
Lord Griffiths
Lord Ackner
Lord Goff of Chieveley
Lord Lowry
LORD BRIDGE OF HARWICH
My Lords,
I have had the advantage of reading in draft the speech of
my noble and learned friend Lord Goff of Chieveley. I agree with
it and for the reasons he gives I would dismiss the appeal.
LORD GRIFFITHS
My Lords,
I have had the advantage of reading in draft the speech
prepared by my noble and learned friend, Lord Goff of Chieveley.
I agree with it and, for the reasons he gives, I would dismiss this
appeal.
LORD ACKNER
My Lords,
I agree that, for the reasons given by my noble and learned
friend Lord Goff of Chieveley, this appeal be dismissed.
LORD GOFF OF CHIEVELEY
My Lords,
There is before your Lordships’ House an appeal from a
decision of the Court of Appeal dated 20 May 1989, by which they
dismissed an appeal from a decision of Popplewell J. dated 25
November 1988 refusing the appellants substantive relief by way of
judicial review on the ground that there had been undue delay on
the part of the appellants and that, if substantive relief were
granted, there would be detriment to good administration.
The matter has arisen as follows. The appellants are dairy
farmers, who farm in partnership two farms in Dyfed, called
Berthlwyd and Pantdwfn. They sell milk wholesale to the Milk
Marketing Board. The present case is concerned only with
Pantdwfn. As from 1 April 1984, the sale of milk wholesale
became subject to a “wholesale quota” allocated to each milk
producer under the Dairy Produce Quotas Regulations 1984 (1984
S.I. No. 1047) (“the Regulations”), which were made to give effect
to E.E.C. Regulations (Council Regulation (E.E.C.) No. 856/84
(Official Journal No. L. 90, 1 April 1984, p. 10), Council
Regulation (E.E.C.) No. 857/84 (Official Journal No. L. 90, 1 April
1984, p. 13) and Commission Regulation (E.E.C.) No. 1371/84
(Official Journal No. L. 132, 18 March 1984, p. 11). Under the
Regulations, milk producers became eligible to be awarded
“primary wholesale quota” and “secondary wholesale quota: see
regulation 2 and paragraphs 9 and 10 of Schedule 2.” The former
was allocated on the basis of milk production during the reference
year, which was 1983. The latter was allocated on the ground of
insufficient primary wholesale quota, being based either on the
fact that 1983 was an unrepresentative reference year, so enabling
1981 or 1982 to be selected in its place, or on the extent of a
producer’s investment for dairy farming. An exceptional hardship
claim could, however, be made where (inter alia) a producer had
before 2 April 1984 entered into a transaction or made an
arrangement, the reasonably expected outcome of which was a
wholesale delivery of dairy produce in respect of which wholesale
quota was not otherwise capable of being allocated. Exceptional
hardship claims were made by a significant number of milk
producers, constituting about 11 per cent, of producers.
Under the Regulations, a Dairy Produce Quota Tribunal
(“D.P.Q.T.”) was established: regulation 6. D.P.Q.T. adjudicated on
applications for primary and secondary wholesale dairy produce
quotas (on appeal from local panels), and it had sole jurisdiction
over exceptional hardship claims. It is still in being, though it
completed the bulk of its work in 1984 and 1985.
The appellants were allocated primary and secondary
wholesale quotas in respect of Berthlwyd. However, there was no
milk production at Pantdwfn during the reference year (1983) or in
earlier years, and so wholesale quota could only be awarded in
respect of Pantdwfn on the basis of exceptional hardship. The
appellants therefore made a claim on that basis, which was
determined by D.P.Q.T. in February 1985. At the hearing before
the tribunal, the appellants were asked how many cows they would
be able to milk at the end of March 1985 (the end of the first
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quota year). Milking had not then commenced, but the appellants
estimated that by the end of March 1985 they would be able to
milk about 70 cows. The chairman of the tribunal then indicated
that quota would be awarded only for that number on the basis of
exceptional hardship, although the housing and facilities at
Pantdwfn could carry a dairy herd of 150 cows. He also Indicated
to the appellants that there was a possibility of making a further
application (an indication which proved to be incorrect).
The decision of D.P.Q.T. was posted to the appellants on 20
February 1985. It determined the quantity of dairy produce
justified by the appellants’ claim for wholesale quota in respect of
Pantdwfn on the ground of exceptional hardship as 318,500 litres
per annum, being the expected produce from 70 dairy cows at a
specified average yield. The appellants then consulted Mr.
Goronwy Evans, a local non-legal expert In milk marketing
matters. He advised them that there was nothing they could do
at that time. They then consulted the European Commission, from
which they received a reply in very general terms. It was not
until May 1987 that they first became aware of the remedy of
judicial review, as the result of an article in the “Farming Press.”
A local solicitor was then consulted. He frankly admitted that he
knew nothing about judicial review, but promptly referred the
appellants to their present solicitors. Within a week, they
submitted an application for legal aid; it was not however until 5
October 1987, after considerable correspondence, that legal aid was
granted to the appellants. Within two days the appellants attended
a conference with counsel, who forthwith settled the necessary
documents for an application for leave to apply for judicial review,
which were engrossed on 15 October 1987. The respondents to the
application, D.P.Q.T., were notified on 19 October. On 21 October
Mann J. granted the appellants leave to apply, observing however
that the appellants would have to deal with the matter of delay at
the hearing.
The application came on for hearing before Popplewell J. on
23 November 1988. After a hearing lasting half a day, he dealt
with the substantive issue in an ex tempore judgment in which,
after reviewing the relevant Regulations, he concluded that
D.P.Q.T. had erred in law in making an award based upon the
limited number of cows which the appellants would have on
Pantdwfn farm at the end of March 1985, without regard to the
future. There has been no appeal from that decision. Popplewell
J. then heard argument on the question of delay. On 25
November he delivered a second judgment in which he held that,
by reason of the delay which had occurred, no order of mandamus
or certiorari should be made, and that the relief granted should be
limited to a declaration giving effect to his interpretation of the
Regulations and stating that D.P.Q.T. had erred in law. The
appellants then appealed against the judge’s refusal of substantive
relief. On 26 May 1989 the Court of Appeal dismissed their
appeal, the sole judgment being delivered by Lloyd L.J., with
whom Kerr and Butler-Sloss L.JJ. agreed [1989] 1 W.L.R. 1089.
The appellants now appeal to their Lordships’ House, with leave of
the Court of Appeal.
I turn first to the relevant legislative provisions relating to
delay in matters of judicial review. These are to be found in
R.S.C., Ord. 53, r. 4, and in section 31 of the Supreme Court Act
1981. Ord. 53, r. 4, provides as follows:
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“(1) An application for leave to apply for judicial
review shall be made promptly and in any event within
three months from the date when grounds for the
application first arose unless the court considers that there
is good reason for extending the period within which the
application shall be made. (2) Where the relief sought is an
order of certiorari in respect of any judgment, order,
conviction or other proceeding, the date when grounds for
the application first arose shall be taken to be the date of
that judgment, order, conviction or proceeding. (3) The
preceding paragraphs are without prejudice to any statutory
provision which has the effect of limiting the time within
which an application for judicial review may be made.”
Section 31 of the Act of 1981 provides (so far as relevant)
as follows:
.
“(6) Where the High Court considers that there has been
undue delay in making an application for judicial review, the
court may refuse to grant – (a) leave for the making of the
application, or (b) any relief sought on the application, if it
considers that the granting of the relief sought would be
likely to cause substantial hardship to, or substantially
prejudice the rights of, any person or would be detrimental
to good administration. (7) Subsection (6) is without
prejudice to any enactment or rule of court which has the
effect of limiting the time within which an application for
judicial review may be made.”
When Order 53 was redrawn in 1977, rule 4(1) then provided
that, where there had been undue delay in making an application
for judicial review, the court might refuse to grant leave for the
making of the application, or any relief sought on the application,
“if, in the opinion of the court, the granting of the relief
sought would be likely to cause substantial hardship to, or
substantially prejudice the rights of, any person or would be
detrimental to good administration.”
Rule 4(2) then provided that, for an order of certiorari to remove
any proceeding for the purpose of quashing it, the relevant period
for the purpose of paragraph (1) was three months after the date
of the relevant proceeding. In 1980, however, that rule was
replaced by the present rule, save only that rule 4(1) referred to
“An application for judicial review . . . .” Following critical
comment by the. Court of Appeal in Reg. v. Stratford-on-Avon
District Council, Ex parte Jackson [1985] 1 W.L.R. 1319, in which
it was held that those words must be read as referring to an
application for leave to apply for judicial review, the rule was
amended to give express effect to that interpretation. Despite the
change in Ord. 53, r. 4, made in 1980, section 31(6) of the
Supreme Court Act 1981 mirrored the old rule 4, which had by
then been replaced. In 1985, clause 43 of the Administration of
Justice Bill of that year contained a provision which would have
repealed section 31(6) of the Act of 1981; but the clause was
abandoned for other reasons, and the proposed repeal fell with it.
– 4 –
In the result, the courts have been left with the task of
giving effect to two provisions relating to delay, which at first
sight are not easy to reconcile. First, in Ord. 53, r. 4(1), undue
delay is defined, whereas in section 31(6) it is not. Second, rule
4(1) applies only to applications for leave to apply for judicial
review, whereas section 31(6) applies both to applications for leave
to apply and to applications for substantive relief. Third, rule 4(1)
looks to the existence of good reason for extending the specified
period, whereas section 31(6) looks to certain effects of delay as
grounds for refusing leave, or substantive relief, as the case may
be. A further twist is provided by the fact that rule 4(1) and (2)
are expressed to be without prejudice to any statutory provision
which has the effect of limiting the time within which an
application for judicial review may be made; and that section 31(6)
is expressed to be without prejudice to any enactment or rule of
court which had that effect. These two provisions were said by
Lloyd L.J., in the Court of Appeal, to produce a circulus
inextricabilis [1989] 1 W.L.R. 1089, 1094F.
The relationship between Ord. 53, r. 4, and section 31(6)
was considered by the Court of Appeal in Reg. v. Stratford-on
Avon District Council, Ex parte Jackson [1985] 1 W.L.R. 1319 (to
which I have already referred) with particular reference to the
meaning of the expression “undue delay.” It was there submitted
that, where good reason had been held to exist for the failure to
act promptly as required by Ord. 53, r. 4(1), and the time for
applying for leave had therefore been extended, the effect of
section 31(7) was that in such circumstances there was no power
to refuse either leave to apply or substantive relief under section
31(6) on the ground of undue delay, because an extension of time
under Ord. 53, r. 4, itself negatives the existence of undue delay.
That submission was rejected by the Court of Appeal. Ackner
L.J., who delivered the judgment of the court, said, at p. 1325:
‘This is not an easy point to resolve, but we have concluded
that whenever there is a failure to act promptly or within
three months there is ‘undue delay.’ Accordingly, even
though the court may be satisfied in the light of all the
circumstances, including the particular position of the
applicant, that there is good reason for that failure,
nevertheless the delay, viewed objectively, remains ‘undue
delay.’ The court therefore still retains a discretion to
refuse to grant leave for the making of the application or
the relief sought on the substantive application on the
grounds of undue delay if it considers that the granting of
the relief sought would be likely to cause substantial
hardship to, or substantially prejudice the rights of, any
person or would be detrimental to good administration.”
With this conclusion, I respectfully agree. First, when
section 31(6) and (7) refer to “an application for judicial review,”
those words must be read as referring, where appropriate, to an
application for leave to apply for judicial review. Next, as I read
rule 4(1), the effect of the rule is to limit the time within which
an application for leave to apply for judicial review may be made
in accordance with its terms, i.e. promptly and in any event within
three months. The court has however power to grant leave to
apply despite the fact that an application is late, if it considers
that there is good reason to exercise that power; this it does by
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extending the period. This, as I understand it, is the reasoning
upon which the Court of Appeal reached its conclusion in Reg. v.
Stratford-on-Avon District Council, Ex parte Jackson.
Furthermore, the combined effect of section 31(7) and of rule 4(1)
is that there is undue delay for the purposes of section 31(6)
whenever the application for leave to apply is not made promptly
and in any event within three months from the relevant date.
It follows that, when an application for leave to apply is
not made promptly and in any event within three months, the
court may refuse leave on the ground of delay unless it considers
that there is good reason for extending the period; but, even if it
considers that there is such good reason, it may still refuse leave
(or, where leave has been granted, substantive relief) if in its
opinion the granting of the relief sought would be likely to cause
hardship or prejudice (as specified in section 31(6)) or would be
detrimental to good administration. I imagine that, on an ex parte
application for leave to apply before a single judge, the question
most likely to be considered by him, if there has been such delay,
is whether there is good reason for extending the period under rule
4(1). Questions of hardship or prejudice, or detriment, under
section 31(6) are, I imagine, unlikely to arise on an ex parte
application, when the necessary material would in all probability
not be available to the judge. Such questions could arise on a
contested application for leave to apply, as indeed they did in
Reg. v. Stratford-on-Avon District Council, Ex parte Jackson; but
even then, as in that case, it may be thought better to grant
leave where there is considered to be good reason to extend the
period under rule 4(1), leaving questions arising under section 31(6)
to be explored in depth on the hearing of the substantive
application.
In this way, I believe, sensible effect can be given to these
two provisions, without doing violence to the language of either.
Unlike the Court of Appeal, I do not consider that rule 4(3) and
section 31(7) lead to a circulus inextricabilis, because 31(6) does
not limit “the time within which an application for judicial review
may be made” (the words used in rule 4(3)). Section 31(6) simply
contains particular grounds for refusing leave or substantive relief,
not referred to in rule 4(1), to which the court is bound to give
effect, independently of any rule of court.
Accordingly, in the present case, the fact that the single
judge had granted leave to the appellants to apply for judicial
review despite the lapse (long before) of three months from the
date when the ground for their application first arose, did not
preclude the court from subsequently refusing substantive relief on
the ground of undue delay in the exercise of its discretion under
section 31(6). This was the approach adopted by both courts
below, applying (as they were bound to do) the decision of the
Court of Appeal in Reg. v Stratford-on-Avon District Council, Ex
parte Jackson [1985] 1 W.L.R. 1319. Before your Lordships Mr.
Gordon for the appellants submitted that the principles stated in
Ex parte Jackson were erroneous; but, for the reasons I have
already given, I am unable to accept that submission.
It follows that there is no doubt that, in the present case,
there was undue delay within section 31(6). No suggestion has
been made that substantial hardship or substantial prejudice were
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likely to be caused by the grant of the relief sought. The only
questions which remained on the appeal were (1) whether the
Court of Appeal should reject the judge’s conclusion that the grant
of such relief would be detrimental to good administration; and (2)
If not, whether it should interfere with the judge’s exercise of his
discretion to refuse such relief. The Court of Appeal decided
against the appellants on both of these points.
On the question of detriment to good administration, the
judge reviewed with care the evidence before him. This consisted
of an affidavit sworn by Mr. Newton, who was secretary of
D.P.Q.T. until September 1988, and two affidavits submitted by the
appellants in answer to that affidavit, one sworn by Mr. May of
the legal department of the National Farmers’ Union, and the
other by Mr. Collinson, a partner In the solicitors acting for the
appellants. It appeared from the evidence that the essence of the
quota system is that there is a finite amount of milk quota
available, so that a quota given to one producer is not available to
others. In fact, about 4,000 exceptional hardship appeals were
heard by D.P.Q.T. Of these, about 600 were successful, additional
quota being granted; so about 3,400 producers failed in their
applications for additional quota on this ground. In a large number
of these latter cases, the end of the final quota year was stated
to be the major consideration. Next, the fact that judicial review
was the remedy available to a milk purchaser aggrieved by a
decision of D.P.Q.T. must have become well known at least after
September 1985, when the first hearing of an application for
judicial review in such a case received wide publicity in the dairy
trade. Consideration was given to the possibility of other
producers seeking judicial review of adverse decisions of D.P.Q.T.
if the appellants’ application for substantive relief was successful.
It was accepted that sufficient provision had been made to deal
with the appellants’ claim for extra quota. But, in Mr. Newton’s
opinion, a small but administratively substantial number of milk
producers could be encouraged to make applications for judicial
review relying on the same point as the appellants, or a variation
of it; and that could mean re-opening the quota for the year 1984-
85, and for each succeeding year. Further allocations of quota
could only be made at the expense of all other producers whose
quotas would have to be reduced accordingly. Mr. Collinson, in his
affidavit, questioned whether other milk producers would be likely
to follow the appellants’ lead and seek judicial review or whether,
if they did so, they would obtain leave to apply after such a long
delay.
Having reviewed the evidence, the judge expressed his
conclusion on this point in the following passage in his judgment:
“It is obvious that if there are a number of applications the
problem of re-opening these claims, going back now three
years, is going to be very great. It arises out of events in
1985. The evidential problems are self-evident, leaving
aside the question of being able fairly to deal with claims
now in relation to matters in 1985. I think there is likely
to be a very real problem in relation to a number of cases.
I do not think the number of cases is de minimis. I have
concluded that the fact that hitherto there have been only
these two applications is not a matter which is of very
great help in determining what the effect will be of the
– 7 –
particular decision in this case. I have come to the
clearest view that there will be a detriment to good
administration if this application were granted.”
The judge’s conclusion, on the evidence before him, that
there was likely to be a very real problem in relation to a number
of cases, was a finding of fact with which I can see no reason to
interfere. Once that conclusion was reached, it seems to me
inevitable that to grant the relief sought in the present case would
cause detriment to good administration. As Lloyd L.J. pointed out
in his judgment [1989] 1 W.L.R. 1089, 1099, two things emerged
from the evidence with sufficient clarity: first that, if the
appellants’ application for substantive relief were to be successful,
there would be a significant number of further applications, and
second that, if a significant number of applications were granted,
then all previous years back to 1984 would have to be re-opened.
These facts disclose, in my opinion, precisely the type of situation
which Parliament was minded to exclude by the provision in
section 31(6) relating to detriment to good administration. Lord
Diplock pointed out in O’Reilly v. Mackman [1983] 2 AC 237,
280-281, that:
“The public interest in good administration requires that
public authorities and third parties should not be kept in
suspense as to the legal validity of a decision the authority
has reached in purported exercise of decision-making powers
for any longer period than is absolutely necessary in fairness
to the person affected by the decision.”
I do not consider that it would be wise to attempt to formulate
any precise definition or description of what constitutes detriment
to good adminsitration. This is because applications for judicial
review may occur in many different situations, and the need for
finality may be greater in one context than in another. But it is
of importance to observe that section 31(6) recognises that there
is an interest in good administration independently of hardship, or
prejudice to the rights of third parties, and that the harm suffered
by the applicant by reason of the decision which has been
impugned is a matter which can be taken into account by the
court when deciding whether or not to exercise its discretion under
section 31(6) to refuse the relief sought by the applicant. In
asking the question whether the grant of such relief would be
detrimental to good administration, the court is at that stage
looking at the interest in good administration independently of
matters such as these. In the present context, that interest lies
essentially in a regular flow of consistent decisions, made and
published with reasonable dispatch; in citizens knowing where they
stand, and how they can order their affairs in the light of the
relevant decision. Matters of particular importance, apart from
the length of time itself, will be the extent of the effect of the
relevant decision, and the impact which would be felt if it were
to be re-opened. In the present case, the court was concerned
with a decision to allocate part of a finite amount of quota, and
with circumstances in which a re-opening of the decision would
lead to other applications to re-open similar decisions which, if
successful, would lead to re-opening the allocation of quota over a
number of years. To me it is plain, as it was to the judge and to
the Court of Appeal, that to grant the appellants the relief they
sought in the present case, after such a lapse of time had
– 8 –
occurred, would be detrimental to good administration. It is, in
my opinion, unnecessary to deal expressly with the detailed
arguments advanced by Mr. Gordon on behalf of the appellants on
this point. They were substantially the same as the arguments
canvassed by him before the Court of Appeal, which considered
and dismissed each argument seriatim. None of them, in my
opinion, made any impact upon the essential matters, which I have
indentified.
Finally, I can, like the Court of Appeal, see no basis for
interfering with the judge’s exercise of his discretion. The judge
took into account the relevant factors, including in particular the
financial hardship suffered by the appellants by reason of the
erroneous approach adopted by D.P.Q.T., and in particular the
imposition upon them of substantial superlevy in the years 1986-87
and 1987-88. He then balanced the various factors and, as he
said, came down firmly against the view of the applicant. I can
perceive no error here which would justify interference with the
judge’s conclusion.
For these reasons, I would dismiss the appeal.
LORD LOWRY
My Lords,
I have had the advantage of reading in draft the speech of
my noble and learned friend, Lord Goff of Chieveley. I agree
with it and, for the reasons which he gives, I, too, would dismiss
this appeal.
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