Speciality Produce Ltd, R (On the Application Of) v The Secretary of State for Environment, Food And Rural Affairs

Factual and Procedural Background

This appeal arises from Speciality Produce Limited's ("SPL") challenge to a refusal by Vos J to order the Secretary of State for Environment, Food and Rural Affairs ("the Secretary of State") to pay SPL's costs in judicial review proceedings. SPL had sought judicial review to challenge the Rural Payments Agency's ("RPA") decision to withdraw SPL's recognition as a Producer Organisation ("PO") under the Common Agricultural Policy Fruit and Vegetables Aid Scheme. The judicial review was scheduled for hearing on 13 November 2012 but was discontinued by consent after the Secretary of State informed SPL that its internal statutory appeal against the withdrawal decision had been successful and the decision would be set aside. Despite agreement on the relief, the parties disagreed on costs.

A PO is an entity through which growers market produce and receive EU financial support. SPL's loss of recognition threatened significant financial harm to its members. The dispute centered on SPL's use of intermediaries to market products, specifically the degree of management control SPL retained over one marketing agent, S&A Produce (UK) Ltd, which was a sister company to some SPL members.

The statutory appeal process against withdrawal of recognition is two-staged, involving an internal review and an Appeal Panel of independent members advising the Secretary of State. This appeal process does not provide for costs awards.

SPL had a history of withdrawal and reinstatement of recognition, including a prior judicial review in 2009, which resulted in SPL's reinstatement as a PO effective from 1 January 2007. Following a European Court of First Instance decision in 2009, a general review of POs led to the 2011 withdrawal decision challenged in the current judicial review and statutory appeals.

SPL brought judicial review proceedings in October 2011 seeking to quash the 2011 withdrawal decision. The grounds included abuse of process and errors of fact and law related to SPL's use of the marketing agent. The Secretary of State argued SPL should exhaust the statutory appeal before judicial review.

Permission for judicial review was granted on the abuse of process ground but refused on the errors of fact and law ground. SPL amended its grounds to include legitimate expectation and pursued both judicial review and statutory appeals concurrently. The statutory appeals ultimately succeeded, leading the Secretary of State to withdraw the decision under judicial review and SPL to discontinue the judicial review before hearing. SPL sought costs of the judicial review proceedings, which Vos J refused.

Legal Issues Presented

1. Whether SPL was entitled to an order for costs of the judicial review proceedings when the relief sought was obtained by consent following the successful statutory appeal.
2. Whether pursuing concurrent statutory appeal and judicial review proceedings was reasonable and justified an award of costs.
3. How the principles governing costs in judicial review proceedings settled by consent apply when parallel proceedings raise distinct grounds.

Arguments of the Parties

Appellant's Arguments

• SPL contended it was reasonable to pursue judicial review alongside the statutory appeal due to prior delays and commercial urgency.
• The relief sought by judicial review was obtained when the Secretary of State withdrew the decision, constituting "wholly successful" litigation entitling SPL to costs.
• Permission granted by Mitting J and the Secretary of State's agreement to expedition justified SPL's conduct.
• Relying on the Court of Appeal decision in R (M) v Croydon London Borough Council, SPL argued that where a claimant obtains all relief sought, costs should normally follow.
• Even if costs were not awarded, exceptional circumstances justified costs due to SPL's justified need to pursue judicial review given statutory appeal delays.

Respondent's Arguments

• The Secretary of State argued SPL should have exhausted the statutory appeal before judicial review, making the judicial review unnecessary.
• The grounds relied upon in judicial review were distinct and untested points of law which the Secretary of State intended to contest.
• The Secretary of State did not oppose expedition but did not consent to liability for costs.
• Pursuing both proceedings simultaneously was SPL's choice and risk, and the Secretary of State should not be liable for costs arising from that choice.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (M) v Croydon London Borough Council [2012] EWCA 595	Guidance on costs where judicial review claims are conceded or settled; distinction between wholly successful and partially successful claims.	The court applied this guidance to assess whether SPL was the successful party entitled to costs, concluding that SPL was not clearly successful on the judicial review grounds.
Brawley v Marczinski [2002] EWCA Civ 756	Determining which party would have won if the case had proceeded to trial to inform costs decisions.	Referenced as an example of cases where the court can determine the likely winner to guide costs orders.
Angus Growers v Scottish Ministers [2012] EuLR 539	Interpretation of the requirement that a PO retain "overall management control and supervision" of outsourced activities.	Relied on by SPL in statutory appeals; the Appeal Panel adopted its reasoning in recommending the appeal be allowed.
BCT Software Solutions Ltd v C Brewer & Sons Ltd [2004] FSR 150	Limits on courts making costs orders without trial or judicial determination of facts and law.	Applied to support the view that costs orders should not be made when the judge cannot determine success on disputed issues.

Court's Reasoning and Analysis

The court began by recognizing the complex procedural history involving concurrent statutory appeals and judicial review proceedings raising distinct grounds. It noted that SPL was entitled to pursue both avenues in parallel, as permission for judicial review on abuse of process and legitimate expectation grounds had been granted and no opposition was raised to expedition.

However, the court emphasized that the relief sought by judicial review was ultimately obtained through the statutory appeal process, which was decided on separate grounds supported by the Appeal Panel's recommendation and subsequent acceptance by the Secretary of State. The court was unable to conclude that SPL would have succeeded on the judicial review grounds had the matter proceeded to trial.

Applying the principles from R (M) v Croydon London Borough Council, the court distinguished between cases where a claimant is wholly successful and those where success is partial or uncertain. It found this case did not fit neatly into the categories where costs follow the claimant because the relief was granted through a different procedural route.

The court accepted that SPL had legitimate commercial reasons for pursuing judicial review concurrently with the statutory appeal, but this did not justify awarding costs against the Secretary of State. The judge below had correctly exercised discretion under CPR 44.3 by making no order for costs given the circumstances and the uncertainty over the judicial review grounds.

The court further noted that awarding costs simply because the decision was withdrawn following the statutory appeal would improperly treat the withdrawal as caused by the judicial review proceedings, which was not established.

Holding and Implications

The court DISMISSED THE APPEAL, affirming Vos J's decision to make no order as to costs.

The direct effect is that SPL is not entitled to recover costs of the judicial review proceedings from the Secretary of State despite obtaining the relief sought. The decision underscores that where relief is obtained through a different procedural mechanism than judicial review, and the judicial review grounds remain untested, costs will not necessarily follow the claimant. No new precedent was established, but the judgment clarifies the application of costs principles in cases involving parallel statutory and judicial review processes.