Sovio Wines Ltd, R (on the application of) v Food Standards Agency [2009] EWHC 382 (Admin)

[2009] EWHC 382 (Admin)

Case No CO/1481/2008

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 02/03/2009

Before

MRS JUSTICE DOBBS DBE

Between

The Queen on the application ofClaimant

SOVIO WINES LIMITEDClaimant

THE FOOD STANDARDS AGENCY1 st Defendant

RICHARD PERKINS2 nd Defendant

(Transcript of the Handed Down Judgment of

WordWave International Limited

A Merrill Communications Company

190 Fleet Street, London EC4A 2AG

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Official Shorthand Writers to the Court)

Mr Fergus RANDOLPH (instructed by Berrymans) for Claimant

Miss Rebecca HAYNES (instructed by Treasury Solicitors) for Defendant

Hearing Hearing dates: 9 th and 10 th February 2009

Judgment

Mrs Justice Dobbs :

INTRODUCTION

THE CLAIMANT’S GROUNDS

[1]The Claimant challenges the decision of the First Defendant dated 27th September 2007, which was upheld by the Second Defendant on review on 30th November 2007. The latter decision is also challenged. The First Defendant issued a “Movement Control Notice” Pursuant to the provisions of the Common Agricultural Policy (Wine) (England and Northern Ireland) Regulations 2001 as amended, prohibiting the movement of the Claimant’s “Sovio” wine products, namely 3,119 cases of rose and white wine based products, (with a retail market value of approximately £130,000) from a bonded warehouse located in Huddersfield. The claim was lodged on 13th February 2008.

THE ISSUES

[2]The Claimant contends that the First Defendant had no jurisdiction to issue the notice. In the alternative, if the First Defendant did have jurisdiction, then the enforcement action constituted an abuse of power as it breached the Claimant’s legitimate expectations based on representations made by the First Defendant.

THE BACKGROUND

[3]The Claimant is a UK Ltd company which designs, produces and markets low alcohol wine- based products. The company was previously called DB Wines Ltd, but changed its name to Sovio Wines on 18th January 2008. Cone Tech Inc. is a company which owns a significant share of the Claimant company. Cone Tech pioneered a modified version of an Australian food technology known as the “spinning cone column” which is able to reduce the level of alcohol in wine without compromising the natural aroma or flavour. This system has yet to receive approval in the EU as a winemaking process. This was the method used for the production of the Sovio wines in question. The aim of the company was to produce a wine which attained the lowest alcohol level practicable whilst retaining the wine’s integrity and quality. The company sought advice from the Wine Standards Board (WSB) as to how the product should be described, aware that as the product was 8% alcohol by volume, it did not fall within the standard definition of wine under UK and EU regulations.

[4]On 31st May 2006, a meeting took place between the Claimant’s representatives and a representative of what was then the WSB. The purpose was to inform WSB of what the company was doing and to discuss how the wine should be labelled. Mr Brian Smith, the regional inspector for North Wales and North England said that he needed to consult the central authorities as he was unfamiliar with the specific problem. Following that meeting, on 5th June 2006, Mr Smith wrote an email to Mr Andrew Bailey, the Claimant’s representative, stating (inter alia) “ the product is definitely in the domain of your local authority (Trading Standards) who should check your labels”. Mr Smith suggested changes to the labelling, which excluded the word “wine”. He also noted that reference to “Premium Spanish wine” had to be deleted (File 2/474). The following day, Mr Bailey passed this information to Anthony Dann, Chairman of Cone Tech and director of the Claimant, in an email (File 2/476). The company then contacted the relevant Trading Standards official, Mr Tim Elliott.

[5]In an email dated 23rd June 2006, Mr Smith wrote to Andrew Bailey “I have made some suggestions to Tim at Trading Standards and clarified the WSB position in this type of product (e.g. due to the production method it is no longer in the wine regime)” (File 2/494). There was some correspondence between Mr Smith and Mr Elliott of Cheshire Trading Standards before Mr Elliott, in an email to Mr Bailey dated 3rd July 2006, approved the label (version 6) which had been submitted by Mr Bailey, subject to one or two small amendments (File 2/497). Mr Bailey passed on the email to Mr Dann and others.

[6]Mr Elliott confirmed the position of Trading Standards in a letter dated 11th October 2006 in which he wrote: “I am writing to confirm my opinion expressed in out meeting today, that the labelling of Sovio Wines complies with all of the legislation enforced by the Service, in particular, with the above Acts and Regulations made thereunder. Whilst this opinion is given in good faith, I should also advise you that ultimately only the courts can authoritatively determine the law” (File 2/ 499). The Acts referred to were the Food Safety Act 1990 and the Weights and Measures Act 1985.

[7]Following receipt of that advice, in March 2007, the wine was shipped into the UK; by April over 3,000 cases containing 24 200ml bottles each of Sovio Blanco and Sovio Rosado were stored in bond at Continental Wine and Food Ltd. An important point to note is that the labelling was printed directly onto the bottle (File 2/571).

[8]By this time, the Claimant had appointed a new Managing Director, Mr Beasley, who was based in Dorking. He introduced himself to the local Surrey Trading Standards officer (Peter Grant) to inform him about the company and its product. The discussion raised some concern on the part of Mr Grant who then engaged in some correspondence with the WSB (File 2/511-526). There was some advice that the product did not come within the wine regime and concern that it may be illegal to sell it even under the food labelling regime, given the process used. As a result a meeting took place on 14th June 2007 at the London offices of the Food Standards Agency the body which had taken over responsibility for the wine regime.

[9]On 22nd June 2007, Mr Elliott, wrote to Mark Beasley in the following terms:

“I have been alerted by Brian Smith of the WSB that an opinion has been expressed by the FSA, the WSB’s new parent body, that Sovio cannot be marketed in the EU. That obviously calls into doubt the advice given previously…”

. He indicated that further consideration would be given to the issue, but warned “other regulatory agencies may feel that they have to take more formal and more immediate enforcement action” (File 2/538).

[10]On 7th August 2007, the company became aware that there was to be a decision to freeze all the stocks of Sovio. Mr Smith was contacted and he confirmed that the matter had been referred to LACORS and to the FSA legal department. On the same day, an email from Mr Beasley expressing concern about the proposed action and its potential effect on the company was sent to FSA ( File 2/576).

[11]On 10th August 2007, the First Defendant issued a “Movement Control Order” on the imported bottles. The notice alleged that the products did not comply with art 45.1a and 1c of the Council Regulation 1493/1999 (the Base Regulation), as it did not meet with the definition of any authorised oenological practices and that the bottles were wrongly designated as “semi-sparkling wine aerated by the addition of carbon dioxide” ( Tab 4, 26-7; File 2/596-8).

[12]On 16th August the company requested an urgent meeting with the Chief Executive of WSB, as well as invoking the review procedure. (File 2/602)

[13]By a letter dated 22nd August, the First Defendant notified the Mr Beasley that it would be revoking the order, due to a minor technical error. Mr Beasley was invited to a meeting on 30th August (File 2/605).

[14]Prior to the meeting, there was some correspondence between the Claimant and the European Commission. By an email dated 23rd August 2007, Felipe de Mazarrasa, an employee of Cone Tech Inc., wrote to M Lefevre, a Commission official within the Directorate General for Agriculture. He sought confirmation of whether the Base Regulation restrictions applied to spinning cone column use for wines with an alcohol level of less than 9% (File 2/610).

[15]Mr Lefevre replied on 28th August, stating that, in order to make a product from a wine base with an alcohol level less than that required under the EC definition of table wine, all procedures allowed in the food industry were permitted. The rules in the Base Regulation relating to experimental practices and accepted oenological practices applied only to products defined as wine or defined in Annex I. However, with regard to the product, the word “wine” could not be used and the labelling would have to be changed (File 2/610). This letter was drawn to the attention of those at the meeting on 30th August.

[16]As a result of the meeting, on 4th September 2007, the First Defendant wrote to Mr Lefevre, setting out its view of the position and seeking confirmation from Mr Lefevre (File 2/625-7). Mr Demarty responded on behalf of the Commission in a letter dated 27th September (File 2/639-40). The effect of the advice was that the product could not be marketed as wine, or any designation including the name “wine” in a composite name, in conformity with the conditions in part C of Annex VII. It could, however, be sold under a different designation and would fall under the general conditions for food labelling.

[17]A replacement Movement Control Notice was issued on 27th September, which is the subject matter of this claim (Tab 4/29-30). The notice stated that it was suspected that the products breached article 45.1(a) and (c) and Annex VIIC 3(e) of the Base Regulations. The reasons for the issuing of the notice was: a) that the spinning cone column process used by the claimant to lower the amount of alcohol in the products was not on the requisite list in the Base regulation b) the product did not comply with its definition of an “aerated semi-sparkling wine” as that required the total alcoholic strength to be not less than 9%; c) the improper use of a specific term.

[18]The Claimant sought a review of the notice in a letter dated 2nd October pursuant to Regulation 10 of the 2001 Regulations as amended (Tab 4/32-7; File 2/642). The Review

[19]An independent assessor was appointed – the Second Defendant. He produced a report dated 30th November 2007, also the subject matter of this claim (Tab 4/46-52).

[20]The submissions before the reviewer were that: i) the Claimant was not in breach of the Base Regulation; ii) to the extent that there was breach, WSB had wrongly/unfairly exercised its discretion to take enforcement action; iii) the effect of issuing the notice was inconsistent with the WSB’s general objectives and those of the Agency; iv) the WSB was taking enforcement action in a situation which would be approved by the EU in the reasonably foreseeable future; v) the WSB had previously indicated that the products fell outside its jurisdiction as they did not meet the EU classification for wine resulting in a legitimate expectation that WSB would not take enforcement action.

[21]The independent reviewer found that the notice should stand. His reasons were as follows: i) The Claimant was in breach of the Base Regulation because the product could not be designated “aerated semi-sparkling wine” in light of the definition of “semi-sparkling wine” to which the product did not accord; ii) The quantities of the product were substantial quantities and not negligible. Compliance with Community requirements concerning designation is a matter of practical importance. Fairness to the industry requires that there should be consistent enforcement of the rules applicable to all; iii) The Agency’s stated objectives quoted in the submissions were not engaged. The Agency had specific obligations to secure and enforce community provisions. iv) There is no suggestion in the EU’s correspondence that the method is to be approved in the foreseeable near future; v) The company is entitled to plead legitimate expectation if it can be shown that they were advised by WSB that it did not have jurisdiction or that it would take no further action or that the conduct of the WSB staff conveyed an unambiguous message to either effect. This was an issue of fact to be pursued on affidavit evidence with exhibited correspondence and a matter properly for judicial review. THE CLAIMANT’S GROUNDS 1). Error of law

[22]In summary, it is submitted that in taking the decision to prohibit the movement of the Claimant’s products, the First Defendant acted in excess of jurisdiction, because the Claimant’s product contains a total alcohol strength of 8% and thus does not fall within the Base Regulation, which defines “semi-sparkling wine” as a product which has an actual alcoholic strength of not less than 7% and total alcoholic strength of not less than 9%. The product is not a “wine product” under the Base Regulations and thus, the First Defendant has no jurisdiction over it and cannot ban the movement of the product. If any notice was to be imposed on the Claimant, then Trading Standards should have been the body to do it. Labelling issues were for Trading Standards and do not found jurisdiction for the First Defendant. Reliance for this proposition is placed, on the emails of Brian Smith of 5th and 23rd June 2006 and the correspondence from the EU officials of 28th August and 27th September. Reliance is also placed on an email from a Lutz van Eltz of Germany who indicated that de-alcoholised and partially de-alcoholised wines are not products within the jurisdiction of the Base Regulation. (File 2/509) It is also submitted that Article 45 of the Base Regulation, relied on by the First Defendant only applies to products coming within the Regulation; in other words, labelling requirements apply only to products referred to in the Regulation.

[23]Dealing with the specifics of the Control Notice under challenge, the following submissions are made.

[24]The first alleged breach stems from the Claimant’s use of the “spinning cone column” process, which was not and is not an oenological practice authorised by Community rules. However, as pointed out by M. Bernard Lefevre, a Commission official dealing with the operation of the EU wine regime, in an email dated 28th August 2007, “… the conditions established in regulation 1493/1999 on accepted experimental and oenological practices are only applicable to products defined as wines or those stipulated in Appendix I of regulation 1493/1999.” (Tab 8/235).

[25]Thus, it is submitted, it is only if the products in question were covered by the Base Regulation that the issue of authorised oenological practices would become relevant, but as it is clear that the Claimant’s products did not fall within the scope of the Base Regulation, they are not governed by it. Therefore there has been no breach of Article 45(1)(a) of the Base Regulation.

[26]The second alleged breach was based on Article 45(1)(c) which related to the product not complying with the definition of “aerated semi-sparkling wine”. The same argument pertains. The Claimant’s products were not covered by the 1999 Regulation and therefore there can be no breach of the provisions of that Base Regulation, as alleged.

[27]By way of secondary argument, it is submitted by the Claimant, that it is clear from a perusal of Article 45, that it only actually applies to non-compliance insofar as concerns oenological practices and processes, which for the reasons set out above, are not relevant in this case. Article 45 of the Base Regulation comes under Chapter I of Title V of the Regulation. Chapter I is entitled “Oenological practices and processes”. Chapter II in contrast is entitled “Description, designation, presentation and protection of certain products.” It is clear therefore that provisions under Chapter I relate only to oenological practices and processes. The First Defendant however has relied on Article 45(1)(c) in terms of description – i.e. a Chapter II matter. Their reliance is consequently flawed.

[28]The third alleged breach concerned Annex VII.C.3(e) of the Base Regulation. Again, the Claimant relies on the same argument, that its product fell outside the scope of the Base Regulation and thus the Annex could not apply.

[29]By way of secondary argument, it is pointed out that Annex VII is specifically mentioned in Chapter II to Title V, which as already noted, is entitled “Description, designation, presentation and protection of certain products.” Article 47(1) provides as follows:

“Rules relating to the description, designation and presentation of certain products covered by this Regulation, and the protection of certain particulars and terms are set out in this Chapter and in Annexes VII and VIII. The rules shall take into account, in particular, the following objectives: (a) the protection of the legitimate interests of consumers; (b) the protection of the legitimate interests of producers; (c) the smooth operation of the internal market; (d) the promotion of the production of quality products.”

[30]Two points are made: a) as can be seen from the witness statement of Anthony Dann at paragraphs 21 – 24, the approach taken by Trading Standards was, that the phrase on the products “semi sparkling wine aerated by addition of carbon dioxide” was a completely accurate descriptor and that there was no objection to such wording in particular regarding consumer protection: (Tab 5/58–60.) Accordingly, there can be no basis for complaint regarding the Claimant’s labelling of its products; b) Article 47 makes clear that the rules on description, designation and presentation, relate to “products covered by this Regulation” and as the Claimant’s product is not covered by the Regulation, Articles 49 and Annex VII are not relevant.

[31]With regard to the labelling point, particular reliance is placed on the letter from Mr Demarty of the Commission (Tab 8/267–8): “This does not prevent the producer putting the product on sale under a different designation which would conform to the conditions described above. In that case the product would fall under the general conditions for food labelling as foreseen in Directive 2000/13/EC of the European Parliament and of the Council on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs and in the national legislation implementing its provisions.” 2) Abuse of power

[32]In the event that the Court finds, that the First Defendant did have jurisdiction, the alternative argument of the Claimant is that the decision of the First Defendant, as upheld by the reviewer, is an abuse of power, in that it breached the Claimant’s legitimate expectations, such expectations arising from clear unambiguous and unqualified representations from the First Defendant that it did not have jurisdiction over the Claimant’s product and/or would not take action in respect of the product and that jurisdiction was vested in Trading Standards. As can be seen from paragraphs 18 to 26 of Anthony Dann’s witness statement, the Claimant relied on these representations when bringing its products to market: (Tab 5/57–60). Accordingly, the Movement Control Notice was in violation of the Claimant’s legitimate expectations and amounted to an abuse of the exercise of the First Defendant’s discretion. Reliance is placed on the representations made on 5th June and 23rd June by the WSB, (as confirmed by Cheshire Trading Standards on 3rd July 2006), on the basis that these were clear and unconditional representations made by officials of WSB, following full disclosure by the Claimant as to its product. Whilst it is accepted that legitimate expectation gives way to statutory duty, it is submitted that this can only be in the context of wine sector products and not products which fall outside the wine regime, such as in the Claimant’s case.

[33]As a “backstop” argument, in part prompted by a question from the Court, it is submitted that without the original representations by WSB, Trading Standards would not have been involved and the Claimant would not have relied on the advice from Trading Standards, such advice having caused the problems the Claimant is now faced with. The First Defendant, being aware that the Claimant had acted on the advice of Trading Standards, should have exercised its discretion not to exercise its powers, having itself referred the Claimant to Trading Standards.

[34]Reliance is placed on the case of R(On the application of Bapio Action Limited and another) v. Secretary of State for the Home Department and another

[2008] AC 1003

for the proposition that a legitimate expectation engendered by one public body could be breached by the action of another. Therefore it is submitted, that there is no reason why the Claimant should not be entitled to rely on a representation from Cheshire Trading Standards Authority giving rise to a legitimate expectation, even though that party is a different public body.

[35]The Claimant seeks an order that the Movement Control Order be quashed and that damages be awarded pursuant to the ECHR s.1 and Art 1 of the First Protocol, it being alleged that the decision of the First Defendant has the effect of depriving the Claimant of its possessions, which cannot now be sold due to deterioration in quality of the product.

THE FIRST DEENDANT’S SUBMISSIONS

[36]In summary, the First Defendant submits that: i. the Claimant’s product and/ or the labelling and designation were in clear breach of the Base Regulations and thus the First Defendant was not precluded from taking the enforcement action at issue; ii. the statements relied on by the Claimant were not capable of giving rise to the contended legitimate expectation. 1) Error of law

[37]Turning to the detail of the submissions, the First Defendant submits that, on a literal and strict interpretation of the Rules, the product is within the regime; and on that strict approach, it cannot be sold for human consumption at all. However, the preferred approach taken by the agency, (an approach shared by the Commission) is the purposive one, adopted, in order that it does not have the very draconian effect of the literal interpretation. Under this approach, it is accepted and agreed, that the product itself does not fall within the definition of “wine” under EU regulations. The whole purpose of the Community legislation is that wine products sold as such are required to be produced in accordance with authorised practices which are designed to maintain quality control and are required to conform to descriptions contained in the Base Regulation. This Regulation is reinforced with a prohibition on products which do not conform to the Regulation a) from being marketed and b) from using labelling and packaging which holds them out as being of the descriptions established by Community legislation. Products which do not satisfy the conditions of the description cannot be labelled as such within the Community. It does not mean that they cannot be marketed as something other than wine.

[38]The first issue, it is submitted, is whether the Claimant may market and label its product as “wine” within the Community. Relying on Article 49 and Annexe VII, the First Defendant submits that the Claimant cannot market its wine as “semi sparkling wine” or “premium wine from Spain”. It cannot be marketed in that way because of the process and also because it does not conform to the description of “aerated semi- sparkling wine”. Even if it is not a wine product within the meaning of the Base Regulation, it has been labelled in contravention of Articles 45 and 49. Reliance is placed on the letter of Mr Demarty dated 27th September 2007, to the effect that the Claimant can use the “spinning cone” process, but that it cannot sell the product as “wine”. A product which does not conform to a description contained in the Base Regulation falls within the legislative reach of the Regulation. To find otherwise, would mean that the product escapes the restrictions placed on its production, marketing and labelling. The Claimant brought the product within the wine regime, because it marketed and labelled the product as a wine product. 2) Legitimate expectation.

[39]The first submission is that the representations were not made by an employee of the First Defendant. The WSB was a company limited by guarantee and was a non-departmental body funded in part by DEFRA and part by the Vintner’s company a trade body. The Food Standards Agency now carries out its functions. WSB was not subsumed by the Food Standards Agency.

[40]Turning to the substance of the issue, it is argued, that the statements have to be considered, looking at the correspondence in context. From this correspondence, it is clear that the statements were not capable of raising any legitimate expectation for the following reasons: a) Mr Smith’s expression of opinion was not an indication that the provisions of the Base Regulation were incapable of applying; b) there is no undertaking or suggestion that enforcement action would not be taken if the product did infringe the provisions; c) there was a consistent theme running through Mr Smith’s emails, namely, that the product could not be labelled as “wine”, whether it be semi-sparkling wine or Spanish wine; d) the Agency’s statutory duties “trump” legitimate expectation; e) there was no actual reliance on the statements made by WSB – rather, reliance was placed on the opinion of the Trading Standards Officer; f) a trader engaging in international trade is responsible for compliance with the Base Regulation and cannot rely on the advice of Trading Standards to say that it is unfair of the WSB to enforce the notice. It was unreasonable, in the light of the advice from WSB, for the company to simply rely on the opinion of Trading Standards. THE LAW The European Legislation

[41]The applicable regime material to this claim is Base Regulation. The material sections are set out below:

“Article 1: The common organisation of the market in wine shall comprise rules governing wine production potential, market mechanisms, producer organisations and sectoral organisations, oenological practices and processes, description, designation, presentation and protection, quality wine psr, and trade with third countries.”

[42]This Regulation establishes rules, inter alia, for the planting of vines, the production processes applicable to wine, wine quality and the designation and labelling of wine and the protection of wine designations.

[43]Article 2 provides that the Regulation shall apply inter alia to products with the Combined Nomenclature Code ex 2204 under the description: “Wine of fresh grapes, including fortified wines; grape must other than that of heading 2009, excluding other grape must of subheadings 2204 30 92, 2204 30 94, 2204 30 96 and 2204 30 98”.

[44]Article 3:

“Definitions of terms used in this Regulation for products shall be set out in Annex I, terms concerning alcoholic strengths in Annex II and wine growing zones in Annex III. Detailed rules for the implementation of those Annexes may be adopted in accordance with the procedure laid down in Article 75”

[45]Articles 42 and following provide for the permissible oenological practices and processes which may be applied to wine produced in and imported into the Community. The authorized practices are set out in Annex IV and V of the Regulation. It is common ground that the “spinning cone column” is not an authorized practice under the Regulation.

[46]Article 45:

“1. Except by way of derogation, the following products may not be offered or disposed of for direct human consumption: (a) products falling within CN codes 2204 30 10, 2204 21, 2204 29 and 2204 10, whether imported or not, which have undergone oenological practices not authorized by Community rules or, where this is permitted, by national rules; (b) products as referred to in Article 1(2)(a), (b) and (c) which are not of sound and fair merchantable quality; (c) products as referred to in Article 1(2) which do not comply with the definitions shown in Annex I.”

[47]The relevant parts of Annex 1 provide:

“The following definitions shall apply to: - products obtained in the Community from grapes harvested in the Community, including wine referred to in the sixth indent of paragraph 15….. 10. Wine: the product obtained exclusively from the total or partial alcoholic fermentation of fresh grapes, whether or not crushed, or of grape must……. 18. Aerated semi-sparkling wine: the product which: - is obtained from table wine, quality wine psr or from products suitable for yielding table wine or quality wine psr; - has an actual alcoholic strength of not less than 7 % vol. and a total alcoholic strength of not less than 9 % vol.; - has an excess pressure of not less than 1 bar and not more than 2,5 bar when kept at a temperature of 20˚C in closed containers due to carbon dioxide in solution which has been wholly or partially added; - is put up in containers of a capacity not exceeding 60 litres.”

[48]Articles 47 and following make provision for rules relating to the description, designation and presentation of certain products covered by the Regulation and also rules for the protection of certain particulars and terms. The detailed rules for such are set out in Annexes VII and VIII.

[49]Article 47(1) provides that the rules take into account the following objectives:

“(a) the protection of the legitimate interests of consumers; (b) the protection of the legitimate interests of producers; (c) the smooth operation of the internal market: (d) the promotion of the production of quality products”

[50]Article 47(2): “2. The rules mentioned in paragraph 1 shall include, in particular, provisions:(a) making the use of certain terms compulsory;

(b) permitting the use of certain terms, subject to conditions;

(d) governing protection and control arrangements for certain terms;

(e) governing the use of geographical indications and traditional terms;

(f) governing the labelling of products which are imported or, where authorised under this Regulation, made from those products, in order to ensure that the consumers are aware of the nature of the product concerned and that the latter is not labelled as a Community product or as the product of a Member State.”

provisions:

[51]Article 49:

“1. Products whose description or presentation does not conform to the provisions of this Regulation or the detailed rules adopted for its implementation may not be held for sale or put on the market in the Community or exported…..” 2. The Member State on whose territory the product whose description or presentation does not conform to the provisions referred to in paragraph 1 is located shall take the necessary steps to impose penalties in respect of infringements committed, according to their gravity. The Member State may, however, grant an authorisation for the product to be held for sale, put on the market in the Community or exported, provided that its description or presentation is changed to conform to the provisions referred to in paragraph 1.”

[52]Annex VII provides for the detailed rules referred to in Article 47 and deals with description, designation, presentation and protection of certain products other than sparkling wine. Paragraph A provides for compulsory particulars for labelling and sales description, Paragraph B provides for optional particulars and Paragraph C protects the use of specific terms.

[53]Paragraph C(3)(e) provides that the designation ‘aerated semi-sparkling wine’:

“shall be restricted to products conforming to the definition of point 18 of Annex I or, where appropriate, a definition to be agreed in accordance with the introduction to this Annex.”

[54]Article 72:

“Member States shall designate one or more authorities which shall be responsible for ensuring compliance with Community rules in the wine sector. They shall also designate the laboratories authorised to carry out official analyses in the wine sector.”

Domestic Legislation

[55]The Common Agricultural Policy (Wine) (England and Northern Ireland) Regulations 2001 as amended (“the 2001 Regulations”) make provision for the enforcement of the Community obligations arising from the Base Regulation. Regulation 3 provides:

“3. - (1) Subject to the provisions of this regulation, the Department, local authorities, the Minister, the Commissioners and the Agency are hereby designated as the authorities responsible for ensuring compliance with the Community provisions.(2) Each local authority shall secure the enforcement and execution of the relevant Community provisions in so far as they relate to the retail sale of products within its area.(3) The Minister, the Commissioners and the Agency shall secure the enforcement and execution of the relevant Community provisions in so far as they relate to the importation and exportation of any wine-sector product into England from a third country or from England to a third country. (4) The Department, the Commissioners and the Agency shall secure the enforcement and execution of the relevant Community provisions in so far as they relate to the importation and exportation of any wine-sector product into Northern Ireland from a third country or from Northern Ireland to a third country. (5) The Agency, and in England the Minister, and in Northern Ireland the Department, shall secure the enforcement and execution of the relevant Community provisions in so far as they relate to any matter not mentioned in paragraphs (2), (3) or (4) above…..”

[56]Regulation 8 makes provision for the movement of products to be prohibited by the Agency (in relation to import and export) on various grounds. The relevant part reads as follows: “8 Control on movement (1) Where an authorized officer inspects any wine sector product he may prohibit its being moved if he has to believe – (a) an offence has been, is being or is likely to be committed in respect of it in contravention of, or failure to comply with any relevant Community provision referred to in column 1 or 2 of Part I, II, III, V or IX of Schedule 2”.

[57]Schedule 2 Part V refers to Article 45(1) of the Base Regulation and Schedule 2 Part III refers to Annex VII point C of the Base Regulation. Contravention of those provisions is an offence by virtue of Regulation 19(1) of the 2001 Regulations.

[58]Regulation 20 makes it a criminal offence to move or cause to be moved a wine sector product, knowing it to be a controlled wine sector product without the written consent of an authorised officer. DISCUSSION AND DECISION.

[59]There are many statements produced in evidence in this case together with a file of correspondence - largely email correspondence. The statements put the documents and background in context. The first issue before the court involves an interpretation of the law and the second issue depends principally on the communications highlighted by the Claimant. It should be noted however, that the court has read all the papers in this case. 1) Jurisdiction

[60]As has been highlighted by the First Defendant, on a strict interpretation of Article 45 1(a) and (c), the Claimant’s product cannot be offered or disposed of for direct human consumption, as it falls within the product codes set out in Article 45 1a because the process used is not authorised by community rules (not even in the new rules) and it does not comply with the definition in Annex 1 of “semi-sparkling wine”. However, the court is not asked to approach the case on that basis, in light of the approach taken by the Agency and the Commission. It is common ground therefore, in this case, that the liquid product does not fall within the wine regime because of a) the use of the “spinning cone column” method which is not an authorised process under the Regulation and b) because of the alcohol content, which is lower than the minimum required to qualify as a “semi-sparkling wine”. The real issue is whether the labelling of the product brings it back within the Regulation. The Claimant says it does not, the First Defendant says that it does. The Wine labels

[61]There were two labels in the original product, the back label which was approved by Mr Elliott of Cheshire Trading Standards and the front label, on which, for some reason advice was not sought. The front label reads:

“Sovio. Rosado/Blanco. Naturally light; softly sparkling. 200ml 8% vol 2006 Seco DB Wines”

. It is common ground that the front label contains at least one inaccuracy. The back label reads:

“Sovio semi-sparkling wine aerated by addition of carbon dioxide. Premium Spanish wine from selected hillside vineyards…”

There are some other details which need not concern us.

[62]The definition of “semi-sparkling wine” is to be found Annex 1 point 18. The wine has to have an actual alcoholic strength of not less than 7 % vol. and a total alcoholic strength of not less than 9 % vol. Annex VII is headed “Description, Designation, Presentation and Protection of certain products other than sparkling wines”. Section C of the Annexe is headed “Use of Specific terms”; 3 ( e) makes it clear that “aerated semi-sparkling wine” is restricted to products conforming to the definition of point 18 of Annex I. It is clear therefore that Sovio is not a “semi-sparkling wine” as defined by the Regulation, nor is it entitled to be described as such.

[63]Additionally, applying Article 49, the product’s description or presentation does not conform to the provisions of the Regulation, in that the product uses an unauthorised process and the alcohol content is not in conformity with the specifications for “aerated semi-sparkling wine” and thus, on a strict interpretation, it cannot be held for sale or put on the market in the Community or exported.

[64]The Claimant’s contention appears to have a certain logic to it, if taking the product in isolation and considering the first two breaches alleged in the Control Notice Order. However, in my judgement, the Regulation cannot be read in isolation, as the Claimant has sought to do, nor should the breaches be taken in isolation. The effect of the Notice is as follows: by presenting and describing the product as “aerated semi-sparkling wine” and “premium wine from Spain”, the product is purporting to be something it is not under the Regulations. The first breach, although pleaded as the third breach in the Notice, is in relation to the restriction in Annex VII C3e on the use of “aerated semi-sparkling wine”, because the wine does not accord with the description in point 18 of annex I. Additionally, by use of the word “wine”, there is also breach by virtue of the product being produced from an unauthorised process and also because it did not comply with the alcohol content set down for “aerated semi-sparkling wines” in Annex I point 18. As the Second Defendant stated in his review, it would defeat the purpose of the provisions if a product – however constituted – could be marketed using a designation specified in Annex VII when it did not satisfy the Annex I definition applicable to that designation. I find therefore that Article 45 did have application in this case.

[65]Even if the Court is wrong on this aspect and there is force in the Claimant’s contention that Article 45 relates only to products within the wine regime, in my judgement, the Claimant cannot get around the restriction in Annex VII C3e. The correspondence already referred to from those in the European Commission make it quite clear that the product may not call itself wine if being put on the Community market. Despite relying on this correspondence for the proposition that the product is outside the wine regime, the Claimant cannot avoid the clear statement that the product must not call itself wine. Simply arguing that labelling was a matter for Trading Standards or, relying on Article 47, to the effect that the restriction only applies to products within the wine regime, does not withstand scrutiny for the reasons advanced by the First Defendant. In fact, the Control Movement Notice could have simply alleged breach of the restriction imposed by virtue of this Annex and nothing more. The restriction is clear. If the Claimant’s approach were correct, it would mean that the regulatory regime would have no power to police products which purport to be within the regime, although they did comply with the definitions. “Passing off” would be outside the Regulator’s jurisdiction and thus the Regulators would be unable to protect the wine designation which the Regulation is clearly designed to achieve. The protection of the legitimate interests of producers and consumers would not therefore be achieved (see Article 47). Moreover, if the product did fall within the wine regime, as the First Defendant correctly noted, the protection provisions would serve no purpose at all. The Base Regulation cannot, in my judgment, be seen in isolated chapters as the Claimant has sought to do, but has to be read as a whole. The Regulation covers not only the liquid product, but also its designation and presentation, which includes, under Article 47 the protection of certain particulars and terms. Sovio presented itself as a “wine”, when, under the Base Regulation, it was not. It is not allowed to present itself in that way. The product in question clearly offends the prohibition and thus falls within the jurisdiction of the Base Regulation and consequently within the responsibility of the WSB as it was then, now the FSA, under Base Regulation 3 of the 2001 Regulations.

[66]The Claimant has produced with their further submissions an undated letter from Mr Demarty, sent to the Claimant’s solicitors in response to their letter of 15th December 2008. In that letter Mr Demarty draws the attention of the solicitors to Directive 2000/13/CE regarding labelling and presentation of foodstuffs - which indicates that in the absence of Community provisions, the sales description is the description determined in the legislative, regulatory or administrative provisions applicable in the member state where the product is sold to the final consumer. This letter in my view, takes the case no further, because this advice has to be seen in light of the fact that Mr Demarty has already indicated that the product could not be called wine. 2) Legitimate expectation

[67]In the Claimant’s Grounds four statements are identified as being relied on in relation to legitimate expectation:

[68]Two statements by Brian Smith, to be found in the emails of 5th and 23rd June; the statement of Tim Elliott, Trading Standards of 10th July 2006 and finally the statement by Mr Demarty of the European Commission of 27th September 2007. In argument, counsel has relied particularly on the representations of Mr Smith, because it is because of his representations that the Claimant turned to Trading Standards for advice. The statement of Mr Demarty, it is to be noted, came at a time when enforcement proceedings were in train and therefore reliance cannot logically be placed on it in relation to legitimate expectation.

[69]The statements relied on in the emails dated 5th and 23rd June have already been set out in the background chronology. However, they cannot be viewed in isolation and it is necessary to look at the correspondence both before and after that date to put those statements into context.

[70]On 10th April 2006 Andrew Bailey of the Claimant contacted the WSB via the internet, enquiring about the proper labeling of the Claimant’s product. On the following day, John Boodle, Technical Inspector of WSB, responded by email to that enquiry in the following manner (File 2/457):

“Thank you for your enquiry. The minimum actual alcohol for sparkling wine is 9.5%, and for quality aromatic wine it is 6% (list of vine varieties which qualify is set out in Regulation 1622/2000 Annex III). There are other definitions for sparkling wine including minimum pressure of 3 bar, set out in Regulation 1493/1999 Annex V (for Regulations, see europa website, wine section as specified on our website links page). If the product does not meet the definition for sparkling wine, it must not include reference to “Wine” in the product description. Advice should be sought from Trading Standards about an appropriate sales description under Food Labelling Regulations rules. If wine is entitled to use description “Sparkling wine” and is being made sparkling in the UK from a base wine shipped from Spain, UK producer details must be given and no reference to Spain may be made.”

[71]On 3rd May 2006, Tim Elliott of Cheshire Trading Standards forwarded to Brian Smith of WSB an email from Mr Bailey who was seeking Mr Elliott’s professional comments on an attached sample label. Mr Elliott in turn sought the advice of Brian Smith saying “ I know it’s lazy of me not to look up all of the requirements myself, but… I’d be grateful for your advice” (File 2/449-451). Mr Smith replied on the same day: (File 2/452):

“Dear Tim There are many things wrong with this SOLVINO sparking wine label: Sizes of alc + nom is incorrect. Alcohol expression/format is also incorrect – is it a wine or a PGFM product as it is below 9% vol (legal minimum for a wine. Can’t call it 100% Sparkling – which of the 3 categories of sparkling wine is this? Product type not shown – Brut etc? If bottled in the UK who is the UK bottler? No mention of “Contains Sulphites”

Is there a Lot Number on the bottle? I would strongly advise this company to have a look at the WSB web site (as below) under >A guide to the law> Labelling> EC Sparkling Wine (3 pages including an example label. Can you get Andrew Bailey to get in touch with me?” There are many things wrong with this SOLVINO sparking wine label: Product type not shown – Brut etc? If bottled in the UK who is the UK bottler? No mention of “Contains Sulphites” Is there a Lot Number on the bottle? Can you get Andrew Bailey to get in touch with me?”

Is there a Lot Number on the bottle?

[72]On the 3rd May, Mr Bailey also sought comments on the mock labels from John Boodle. ( File 2/456). On 4th May 2006, Mr Boodle replied (File 2/456):

“Thank you for your further enquiry. Unless this is a quality aromatic sparkling wine, in which case this must form part of the sales description, I repeat that it is illegal and it would be of academic interest only to comment on the label. It would also be a breach of the CAP Wine Regulations to market it at either wholesale or retail in the UK.”

[73]On the same day, Mr Elliott also responded to Mr Bailey, setting out the respective roles of the WSB and Trading Standards under the wine legislation, recommending contact with the WSB, and paraphrasing the comments made by Brian Smith to himself (File 2/453).

[74]On 8th May 2006, in response to a further enquiry from Mr Bailey which set out more detail regarding the product, Mr Boodle replied (File 2/455):

“Andrew This product cannot be described as a “Sparkling Wine”

. A descriptor along the lines of “sparkling fermented grape drink” would be appropriate but needs approval from Trading Standards – the source of carbon dioxide may have to be described. Terms such as low alcohol are governed by Food Labelling Regulations and you should seek advice on these from Trading Standards. If the same is marketed in Spain, it would be instructive to compare your proposed label with the label for the Spanish market”.

[75]There followed further discussions between Mr Bailey and Mr Smith, first by phone on 8th May 2006 and then in a meeting on 30th May 2006 (Smith/para 9-16/318-320; Bailey para 8/390) in which Mr Bailey provided further details of the product and, for the first time, provided details of the “spinning cone” production method used to achieve the product. During this time Mr Smith also discussed the product and its production method with Mr Boodle and others internally with the WSB and was made aware of the advice provided by Mr Boodle to Mr Bailey.

[76]On 5th June 2006, Mr Bailey of the Claimant sent further designs of the labels to Brian Smith who replied as follows: (File 2/474):

“The product is definitely in the domain of your local Authority (Trading Standards) who should check your labels. I have had a look at your labels as: SOVINO – Semi-sparkling? + 8% + 20cl e Back label – SOVINO – (show as part of the descriptive – “Semi-sparkling wine based drink, aerated by the addition of carbon dioxide”)

You will have to remove any reference to “Premium Spanish Wine from selected….”

Trading standards will require you to have a better reference to 1.6 UK units. (have a look at a supermarket own label wine and you will see what I mean).” I have had a look at your labels as: SOVINO – Semi-sparkling? + 8% + 20cl e You will have to remove any reference to “Premium Spanish Wine from selected….”

[77]On 6th June Mr Bailey set out his understanding of his discussions with Mr Smith in an email to Messrs Dann and Burr of Conetech and Mark Beasley (File 2/476) stating:

“I have again today spent considerable time talking to Brian Smith from the Wine Standards Board and was not the news we wanted. Brian has checked out additional regulations and now believes that our product definitely falls under the domain of Trading Standards and therefore falls under food labelling. However, he did suggest the following label amendments in order for us to put forward a lable to Trading Standards so they could make any comments….. Suggested changes: • The front label – SOVIO – Semi Sparkling + 8% + 20CL (Remove the word wine) • Back label – SOVIO (and shown as part of the descriptive – Semi-sparkling wine based drink, aerated by addition of carbon dioxide). • We have to remove any reference to “Premium Spanish Wine from selected…” as this is not accepted….. So far as labels are concerned, we need to make the adjustments shown above and then Brian will case his eye over them before we send them to Trading Standards, …” • The front label – SOVIO – Semi Sparkling + 8% + 20CL (Remove the word wine) • Back label – SOVIO (and shown as part of the descriptive – Semi-sparkling wine based drink, aerated by addition of carbon dioxide). • We have to remove any reference to “Premium Spanish Wine from selected…” as this is not accepted….. So far as labels are concerned, we need to make the adjustments shown above and then Brian will case his eye over them before we send them to Trading Standards, …”

[78]He also said that because of the process “it is therefore not covered in any EU regulations and therefore cannot fall in the wine category”.

[79]On 19th June, Mr Bailey copied Brian Smith into an email to Mr Elliott of Trading Standards attaching sample labels. The labels did not reflect the comments made by Mr Smith as to the use of the word “wine” and “Premium Spanish Wine (File 2/482&485).

[80]On 21st June, Brian Smith contacted Mr Elliott to repeat his position (File 2/488):

“Tim Can you please give me a ring about this as the use of Premium Spanish wine and semi-sparkling wine can not be used as it is not a wine product as the method of lowering the alcohol is not an approved method in the wine sector.”

[81]On 23rd June, Brian Smith then emailed Mr Bailey in the following terms (File 2/494): “I have made some suggestions to Tim at Trading Standards and clarified the WSB position on this type of product (eg due to the production method it is no longer in the wine regime).

[82]Five days later, on 28th June, Mr Elliott emailed Brian Smith (File 2/495):

“Saw Andrew Bailey of DB Wines yesterday. After discussions about the use of the descriptor ‘wine’ for a product not subject to the EC wine regime we agreed to seek the views of the Public Analyst. He has pointed us to Item 17… of Annex I to Council Regulation 822/87.”

[83]He went on to ask whether this was relevant or a red herring. Mr Smith replied on 3rd July 2006 (File 2/496):

“Yes I am afraid it is a red herring as it is the “Production method” used to get the wine down to 7% from 13% that is not currently recognised in the EC.”

[84]Mr Elliott acknowledged Mr Smith’s response and asked him to forward it to Tony Collard of Trading Standards as he, Mr Elliott, was going on a fortnight’s leave that day.

[85]On the same day, Mr Elliott wrote to Mr Bailey: (File 2/497) Although it looks as if the email was written on 10th July, it is more likely that it was written on 3rd in the light of the fact that the 3rd July was Mr Elliott’s last day at work for two weeks: see email to Brian Smith dated 3rd July ( File 2/496) “Updating you on our thoughts since we met last Tuesday. Despite the increasing recognition of industrial processes between the European Union and the United States Government, Brian Smith ( Wine Marketing Board) still takes the view that the “spinning cone method” is not recognized by the EU and therefore cannot be used to produce “wine” for the purposes of the wine regime of regulation. However, we, Cheshire Trading Standards, take the view that because the alcoholic strength of “Sovio” takes the product out of the control of the wine regime anyway the fact than an unrecognized process is used is irrelevant. We therefore have no objections to the label ( version 6) you left with us, subject to ….. “ and Mr Elliott sets out matters which need to be included. He went on to say:

“ In offering this opinion I should make it clear that ultimately only the courts can authoritatively interpret the law”

[86]Mr Bailey then communicated his understanding of events to his colleagues on 10th July: (File 2/497) “I have now had written confirmation on the label content and pleased(sic) by the response given by Trading Standard. They have confirmed in writing below that we can use version 6 of the PDF labels ( attached copy) which includes the words wine and the fact that an unrecognized process is used is irrelevant in their decision making process…… It is also worth noting that the Wine Standards Board or Trading Standards can pin down a proper categorization for our product because of the process we use and they do state that only the courts can authoratively interpret the law, but do give their blessing on version 6. And with this blessing it puts us right on track and where we want to position our product for the UK market and falls within the magical tax bracket that saves an additional 11p as apposed ( sic) to the 9%abv. It is also worth noting that Brian Smith from Wine Standards Board has been a grate (sic) help and played a big part, because although he has to take the official line in the interpretation of the legislation before him, he has had considerable dialogue with Trading Standards who were themselves also receptive to what we were trying to achieve following our meeting….”

[87]On 11th October 2006, Mr Elliott wrote confirming the contents of his July email. It is clear both from Mr Bailey’s internal email of 10th July 2006 and from his statement, that it was this communication and subsequent letter from Trading Standards which prompted the Claimant to proceed with the labeling.

[88]A number of points need to be noted: firstly, Mr Smith did not see Mr Elliott’s letter of email to Mr Bailey confirming that Trading Standards had no objection to version 6 of the label (Tab 20). His last contact with Mr Elliott in this period was the email he sent on 3rd July 2006; secondly, Mr Bailey in his email to his colleagues gives the impression (no doubt unwittingly) that both WSB and Trading Standards had given their blessing to the label. In fact WSB had not given their blessing to the label, as is clear from Mr Smith’s email to Tim Elliott of 21st June and his previous emails to Mr Bailey, in which he had made clear that the word “wine” could not be used. The label ultimately selected by the Claimant, and approved by Trading Standards, contained references to “semi sparkling wine” and “Premium Spanish wine” in clear contradiction to the position consistently expressed by the WSB both to Mr Bailey and to Mr Elliott, that the Claimant’s product could not be marketed as wine. It is unsurprising however, in the light of the misleading email from Mr Bailey to his colleagues, that Mr Dann formed the impression that he did; thirdly, advice was not taken on the front label. It is accepted that this label itself contained a misleading description.

[89]The first point to be decided is whether the First Defendant is responsible for any representations made by members of WSB. I have no hesitation in finding that they were. As submitted by the Claimant and relying on R(Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs

[2008] QB 365

, the First Defendant is the statutory successor to WSB and thus cannot seek to avoid liability. Moreover, one only has to look at the later correspondence, once the FSA had taken over responsibility to see that the same personnel were in place and that what was the WSB was being called the Wine Standards Branch of the FSA ( File 2/518)

[90]I turn to the real issue therefore. In my judgment, when put in context, the statements made by the WSB, were not capable of giving rise to the legitimate expectation claimed by the Claimant for the following reasons.

[91]Firstly, the WSB’s position was clear and consistent, namely, that the Claimant’s product could not be marketed as wine. As already indicated, there was no basis for Mr Bailey, in the light of the communications, to give the impression to his colleagues that the wine label had the blessing of WSB. He could have been in no doubt from what was said by WSB that the use of the word “wine” would be illegal.

[92]Secondly, the references to the product being outside the wine regime and in the domain of Trading Standards and food labeling legislation were clearly made on the basis and in the context that the product could not be marketed under the “wine” or semi-sparkling wine” designation.

[93]Thirdly, WSB did not suggest that the product would not be subject to the prohibitions and restrictions on marketing and labeling contained in the Base Regulation, nor did it state that it would not exercise its jurisdiction or take enforcement action if the products were to infringe any provisions of the Regulation.

[94]Fourthly, it was the advice of the Trading Standards Officer that caused the Claimant to take the action which proved detrimental. Fifthly, as already noted, they had in any event breached labeling provisions on the front label, a label on which they did not seek advice on. Sixthly, one would have expected a prudent business to take some other advice, (for example from the Commission itself as it did later, or other legal advice) in light of the caution at the end of Mr Elliott’s letter, but more particularly, because of the advice from the WSB and the Trading Standards Officer about labeling which were in conflict.

[95]Finally, in light of the court’s decision that WSB did have jurisdiction, any legitimate expectation must yield to the agency’s statutory duties: see for example R v Department for Education and Employment ex parte Begbie

[2000] 1 WLR 1115

@ p.1125D. The Agency is under a statutory obligation to enforce the provisions of the Base Regulation. Had there been a statement by the Agency that it did not have jurisdiction to take action or an undertaking not to take action which gave rise to an expectation on the part of the Claimant, it could not override the Agency’s statutory duties.

[96]The Claimant relies on paragraph 8 of the Regulation, for the proposition that the Defendant had discretion whether or not to take enforcement action, and, that in the circumstances, that it should have exercised its discretion in the Claimant’s favour.

[97]The Court rejects that argument. There will be cases, and indeed, this case was such an example, (when for a time, during discussions, the First Defendant did not take enforcement action, due to a voluntary undertaking by the Claimant not to move the goods) when the Agency will exercise its discretion not to take action. However in this case, when the Claimant withdrew its undertaking, the Agency had the choice of doing nothing and allowing the Regulation to be breached, or acting under their statutory duty to enforce the Regulation. As the Second Defendant rightly noted, the breach related to substantial quantities and compliance with the Community requirements concerning designation is a matter of practical importance. The position that the Claimant contends for would have the effect of the First Defendant condoning significant breaches of the Regulation, contrary to its statutory duty.

[98]For all the above reasons therefore, there is no basis upon which it can be alleged that the Agency acted in breach of any legitimate expectation.

[99]With regard to the alternative argument based on the representations made by Mr Elliott of Trading Standards, the following must be noted. Firstly, what Mr Elliott said was an expression of opinion; secondly, he included a caution at the end of both documents; thirdly, he did not indicate that WSB would not intervene at any time, indeed once he realized that his advice may have been wrong he indicated to the Claimant that the regulators may take formal action; fourthly, there was a conflict between the advice given by Trading Standards and WSB, and no clarification or further advice was sought. In my judgment, there was no basis for a legitimate expectation that WSB or any other regulator would not take enforcement action against the Claimant.

[100]Reliance has been placed on the House of Lords case of R (on the application of Bapio Action Limited and another) v Secretary of State for the Home Department and another [2008] HL 27. The facts need not detain us for long. The issue was whether the Secretary of State for Health acted lawfully in issuing guidance to the employing bodies within the National Health Service. The guidance it was argued had an effect on those ( in this case) doctors who had entered the country on one basis, but by virtue of the guidance, which did not find any expression in the Immigration Rules, found themselves subject to a new requirement, contrary to their legitimate expectations on entering the country. It also had the same effect to those who intended to enter the country under the Immigration Rules. A number of points arise. First, that the House of Lords found the guidance to be unlawful, but two of the four Law Lords concurring as to result, came to their conclusions by different routes. Secondly, so far as legitimate expectation is concerned, the case cannot be seen as authority for the general principle that the actions of one public body which engender a legitimate expectation can bind another public body. In this case, the decision of the majority as noted by Lord Scott, (dissenting), appeared to depend on the constitutional principle that the Crown is indivisible. This is not the situation in the present case. Even, if such a proposition was tenable, in my judgment, the First Defendant’s statutory duty would override the legitimate expectation.

[101]Finally, even if the court had been minded to accept the Claimant’s argument about jurisdiction, this is a case where a remedy would not be appropriate. Counsel for the Claimant has been very careful to avoid an explicit admission that the bottles were wrongly labeled under the Base Regulation, on the basis that the Interested Party, (Trading Standards) have not come to Court and made such an admission. However, it is beyond doubt that the labeling offended the Regulation and there is an implied admission from the Claimant to that effect. This is because, happily for the Claimant, the product is being marketed on the supermarket shelves and the offending wording has been rectified. The reason a remedy would not be appropriate is because Trading Standards, in whose jurisdiction the Claimant submitted the product lay, would be bound to take enforcement action on discovering the breaches, not least because the Claimant did not take advice on the front label, which itself was misleading in its description, and in spite of its arguably contributory role. To grant a remedy would be to condone breach of the Base Regulation.

[102]It follows from the foregoing that this application for judicial review is refused. By way of post script, it must be observed that the Court has some sympathy with the Claimant. The rules are complicated, so much so that the organisations which are meant to be “au fait” with them were going backwards and forwards to ascertain what the true position was. What is clear throughout however is that the Claimant wanted, and was trying, to get things right, in order not to offend the legislation. It is also true to say that the First Defendant tried its best to assist and was not unsympathetic to the Claimant’s position. At the end of the day however, responsibility lies with the Claimant to get it right. Happily for the Claimant, it seems that the company has now got it right. Sensibly the Claimant is also using a removable label, unlike the consignment in this case, where due to the manner of labelling, the description could not be changed in order to comply with the Base Regulation, and thus the product, which has deteriorated, has effectively been lost.