Newby Foods Ltd, R (on the application of) v Food Standards Agency & Ors [2013] EWHC 3184 (Admin)

Case No CO/6923/2012[2013] EWHC 3184 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Rolls Building, 7 Rolls BuildingsDate 24 October 2013
London EC4A 1NL
Before
MR. JUSTICE EDWARDS-STUART
Between
The Queen (on the application of Newby Foods Ltd)ApplicantFood Standards AgencyRespondentThe European CommissionInterested Party
Hugh Mercer Esq, QC & Andrew Legg Esq(instructed by Clarke Willmott LLP)) for ApplicantJason Coppel Esq, QC (instructed by Food Standards Agency) for RespondentNicholas Khan Esq (instructed by the European Commission) for Interested PartyHearing Hearing dates: 25 th September 2013
JudgmentMr. Justice Edwards-Stuart:Introduction
[1]This is the third judgment in this case. In the first judgment I referred the principal questions of interpretation of the relevant EU regulation to the Court of Justice of the European Union. In the second judgment, which was handed down on 26 July 2013, I considered the Claimant’s application for interim relief pending the decision from the Court of Justice. This judgment concerns the further consideration of the application for interim relief in the light of the submissions made by both the FSA and the European Commission (as an intervener).[2]In short, the issue raised by the question to the Court of Justice is whether any loss or modification of the muscle fibre structure of meat removed from flesh bearing bones after boning means that the resultant product must be described as mechanically separated meat (“MSM”), with all the adverse commercial consequences that follow from that classification, or whether the degree of loss or modification of the muscle fibre structure must be such as to substantially eliminate the characteristics of fresh meat, in the absence of which it can be classified as a meat preparation.[3]The Claimant has developed a process of separating the flesh from the bones which involves rubbing the bones together at low pressure so as to remove the meat. It contends, an assertion that is supported by the evidence, that the product of the process is virtually indistinguishable from ordinary minced meat. In technical terms, it contends that the loss or modification of the muscle fibre structure that results from this process is not sufficient to deprive it to any material extent of the characteristics of fresh meat. Until April 2012 this was a position accepted by the FSA, with the result that it allowed the Claimant to describe its product as de-sinewed meat, rather than MSM. When meat is mechanically separated from the bones at high pressure, both the meat and the bones are crushed so as to produce a type of slurry rather like a purée. It is accepted on all sides that this product should be classified as MSM.[4]In my judgment of 26 July 2013 I granted the Claimant conditional relief in the following terms: i) Notwithstanding the moratorium imposed on 4 April 2012, the Claimant may sell the 51 tonnes of de-sinewed lamb meat held in storage as a meat preparation for pet food consumption by cats and dogs only. ii) The Claimant may continue to produce de-sinewed meat from pigs and poultry and to sell it as a meat preparation, provided that it complied with certain hygiene requirements. iii) The FSA was to be restrained from enforcing the moratorium imposed on 4 April 2012 against the Claimant in so far as to do so would prevent or inhibit the Claimant from acting as set out in i) and ii) above.[5]This was then embodied in an order of the court. The relief was conditional because I gave the European Commission (“the Commission”) 14 days in which to notify the court whether or not it wished to intervene and, if it did, permission to make submissions in opposition to the grant of relief within 56 days of the date of the order. If the Commission notified the court in accordance with the order (which it did), the order was not to take effect until further order. However, by an order made on 16 August 2013, I allowed the claimant to continue to produce de-sinewed meat from pigs and poultry with effect from 24 August 2013.[6]The Commission gave notice that it wished to intervene and to oppose grant of interim relief and so I directed that there should be a hearing to determine whether or not the interim relief that I had granted conditionally should be confirmed. That hearing was fixed for 2 pm on 26 September 2013.[7]However, in the meantime the Claimant had obtained a witness statement from a fresh expert, a Mr. Philip Comer, in which he stated that there is no BSE risk in relation to de-sinewed meat produced from lamb. The Claimant therefore invited the court to reconsider the grant of interim relief in relation to the continued production of de-sinewed meat from lamb - the court having declined to grant such relief, even conditionally, in the judgment of 26 July 2013. This witness statement was dated 20 September 2013 and referred to a number of exhibits running to many pages.[8]Unfortunately, there were some hitches in the serving of these documents, together with other witness statements that the Claimant had also prepared, on the FSA. It is not necessary to go into the details of what happened, because it is sufficient to say that I am satisfied that neither the FSA nor the Commission has had a proper opportunity to provide an informed response to this further evidence.[9]Leaving aside any difficulties raised by the timing of the service of this fresh evidence, both the FSA and the Commission raised objections to the Claimant being permitted to reopen the extent of the interim relief that should be granted. They submitted that the only questions that were reserved to this hearing were whether or not any or all of the interim relief that I had granted conditionally should be confirmed. Since I had refused to grant interim relief in relation to the production of de-sinewed meat from lamb, it was objected that the Claimant was in effect seeking to re-argue a point that had already been determined against it. Mr. Jason Coppel QC, who appeared on behalf of the FSA, relied on observations by Buckley LJ in Chanel v Woolworth [1981] 1 WLR 485, at 492-3, and by Hart J in The Leadmill Limited v O’Mare [2002] EWHC 1226 (Ch), at page 6.[10]During the hearing on 26 September 2013 it fairly soon became apparent that there would be insufficient time to deal with all these issues. I therefore indicated that I would limit the argument to the following issues: i) Whether or not the conditional interim relief permitting the Claimant to produce de-sinewed meat from pork and poultry should be confirmed. ii) Whether or not the conditional interim relief in relation to the 51 tonnes of de-sinewed lamb meat should be confirmed. iii) Whether or not the Claimant should be permitted to reopen the question of the production of de-sinewed meat from lamb.[11]In the event that issue (iii) was determined against the Claimant, that would dispense of any question of interim relief in respect of the production of de-sinewed meat from lamb. However, if it was determined in the Claimant’s favour, there would have to be further directions in order to enable the FSA and the Commission to have a proper opportunity to adduce further evidence in response to the evidence of Mr. Comer and others to which I have already referred.[12]By the conclusion of the hearing I had formed the clear view that the Commission had not advanced any cogent grounds for refusing the grant of interim relief in relation to pork and poultry products, and so I notified the parties that I proposed to allow that ground of interim relief. I reserved judgment on the other two issues.[13]This judgment gives my reasons for granting relief in relation to pork and poultry products and my conclusions on the other two issues.

The production of de-sinewed meat from pork and poultry

[14]At paragraph 5 of its skeleton argument, the Commission said:
“Although the Commission submits that the Order of 16 August 2013 should be varied to refuse any interim relief, first and foremost, the Commission submits that it is essential that the refusal of any interim relief in respect of product derived from lamb or other ruminants be maintained. There are several compelling factors why the balance of convenience should be resolved against the grant of interim relief for this product.”
[15]In relation to pork and poultry products, the Commission accepted that public health considerations were not an issue but it was submitted that there were other considerations relevant to the balance of convenience that weighed in favour of refusing interim relief. It relied on the recent horse meat scandal as an example of how an issue of food labelling can lead to widespread loss of consumer confidence with consequent reputational and financial losses to suppliers and retailers.[16]At paragraph 14 of its skeleton argument the Commission said this:
“Having been made aware of the interim relief granted by the Court’s order of 16 August 2013, several Member States have recently expressed concern about the labelling aspect of Newby’s product [reference inserted]. The concerns expressed suggest that at least some Member States are considering taking measures to prevent the import of MSM labelled as meat preparations.”
[17]In his oral submissions, Mr. Nicholas Khan, who appeared on behalf of the Commission, submitted that to permit the Claimant to produce de-sinewed meat from pork and poultry without labelling it as MSM would raise concerns about equal treatment because it would allow the Claimant to gain an unfair advantage over its competitors.[18]Mr. Khan relied strongly on a note of the discussion held in Brussels on 17 September 2013 on a point raised by Italy arising out of this case. It was recorded that Italy “… strongly requested that MS [Member States] respect EU rules, in particular regarding the exclusion of MSM from the definition of meat and the fact that the MSM must be labelled as MSM with the indication of the species. [Italy] also raised the serious issue of market distortion within the EU if mislabelled products freely circulate inside UK and within the EU.” Luxembourg and Denmark were also reported as being concerned. Denmark stated that such products should not circulate within the EU and that, if they did, protective measures “could be envisaged”.[19]France was reported as expressing serious concerns regarding the issue and asked for the expected date of the ruling by the Court of Justice. It asked also for a timetable for reopening the discussion on the definition of MSM. It is not clear from this note precisely what position was being taken by France, although in previous documents it had raised its concerns about the Commission’s approach to the definition of MSM. An audit carried out on behalf of the Commission in France in November 2012 noted that the official controls did not ensure that EU requirements concerning labelling were fully met. The report gave examples of what it described as misleading denominations used for MSM, with the result that instead of MSM being identified as such, misleading descriptions were used on labels by both wholesale and retail suppliers. The thrust of the response by the competent authorities in France (which I have only seen in the French version) appears to have been that the way in which low pressure MSM is labelled can differ from state to state within the EU, which makes regulation by the competent authority difficult.[20]The attention of the court has also been drawn to audit reports in respect of visits by the Food & Veterinary Office (“FVO”) to establishments in Italy (September 2012), Germany (October 2012) and the Netherlands (November/December 2012). In relation to Italy, the report described the documentation accompanying the meat products as not entirely satisfactory - for example, terms such as MDM (mechanically de-boned meat) were used - and that misleading descriptions appeared also on documents accompanying MSM consignments from other member states.[21]In relation to Germany the audit team reported that, with the exception of the MSM producers visited, the denomination “mechanically separated meat” was not used in the documents accompanying MSM sold to traders or other establishments for further processing. Again, terms such as MDM or “gebaardertes fleisch” (ie Baader meat) appear to have been in widespread use in Germany. At the time of the hearing before me, which was almost a year after the audit, the competent authorities in Germany had declined to submit any response.[22]In relation to the Netherlands, it was reported that the position taken by the competent authorities regarding the labelling for final consumers of products containing MSM was not in line with relevant EU legislation and that the EU requirements concerning labelling were not being enforced. As I pointed out in my second judgment, at paragraph 49, the response of the competent authority in the Netherlands was that the meaning of the expression “loss or modification of muscle fibre structure” was “not quite clear” and that it was looking for clarification from the EFSA.[23]In a witness statement served on behalf of the Commission, Mr. Eric Poudelet, the Commission’s Director of Directorate E, Safety of the Food Chain, relied on the notes of the discussion on 17 September 2013 as showing that concern was being expressed by several Member States about the Claimant’s practice of labelling MSM as a meat preparation. Whilst in one sense this view is not incorrect, the reality appears to be that of the only three Member States to express concern (Italy, Luxembourg and Denmark) only one, Denmark, mentioned the possibility of taking protective measures.[24]Having regard to the fairly widespread non-compliance with labelling requirements in relation to MSM that appears to have been revealed by the FVO audits of establishments in Italy, Germany and the Netherlands, it is relevant to note that no other Member State appears to have taken - or has even threatened to take - any action in response.[25]At paragraph 11 of his witness statement, Mr. Poudelet said this:
“MSM labelled as an ingredient is considered an important indicator of the quality of meat products as it is often associated with cheap quality products. From the consumer’s point of view it is unacceptable to include MSM within the definition of meat for the labelling purposes and no MSM in products should be hidden because MSM significantly differs from ‘meat’ as perceived by consumers.”
[26]This seems to me to be a circular argument. The evidence to which I have referred in my second judgment shows that the product produced by the Claimant’s low pressure process is not significantly different from minced meat, whereas it is totally different from MSM produced in high pressure machines. As I have already explained, the former looks like meat whereas the latter is a slurry with a texture rather akin to a purée.[27]Indeed, the passage that I have quoted from Mr. Poudelet’s witness statement does not sit easily with the contents of the document in the context of which it was made. That is a communication dated 2 December 2010 from the Commission to the European Parliament and the Council. For example, at page 6 of that document one finds this:
“Visually, high-pressure MSM results in a product with a characteristic and particularly pasty texture resulting from the loss or modification of the muscle fibre structure. Other technologies (low pressure MSM), may result in a product that can not or hardly be differentiated visually from minced meat. Microscopically, an evaluation of ‘the loss or modification of the muscle fibre structure’ is possible using microscopic sections of meat. A large variation of the modification of the internal structure of the product can be observed depending on the different production parameters used.”
These comments closely reflect the evidence put forward on behalf of the Claimant in this case. Later in the same document the authors say this:
“Rapid technological developments in this area resulted also in the situation that some technologies, using methods of mechanical separation of meat, are able to provide final product with characteristics close or similar to those of minced meat. The Commission considers that, according to the current legislation, such product is covered by the definition of MSM and must be, therefore, labelled accordingly.”
[28]The authors go on to point out that these differences in the application of the definition of MSM may result in unfair competition since the same product can be labelled as meat in some Member States but is labelled as MSM in others. This suggests that, by the end of 2010 at least, the application of the Commission’s interpretation of the definition of MSM was far from uniform within the EU.[29]I was also taken to a number of documents relating to audits by FVO inspectors of various establishments in Poland in 2013. These revealed a state of affairs that the Commission regarded as constituting serious breaches of the rules that apply to MSM and showed the steps that the Commission took to deal with them. Whilst I readily accept that these documents show that the Commission was prepared to take vigorous steps in response to the situation revealed by these audits, they did not contain any material that indicated that there was any reaction by other Member States to what was going on in Poland.[30]Viewing this material as a whole, somewhat exiguous though it is, I do not regard it as supporting a compelling case to the effect that permitting the Claimant to produce de-sinewed meat from pork and poultry without describing it as MSM will have any adverse consequences for the consumer or provoke any significant reaction from any other Member State. The informed consumer would, in my view, readily distinguish between de-sinewed meat produced under low pressure and MSM produced under high pressure: the former is clearly recognisable as meat, the latter is not. The difficulty, which I can well understand, is that this is not a distinction that can readily be conveyed by a name on a label.[31]In these circumstances I am not persuaded that to grant the Claimant interim relief in relation to the production of de-sinewed meat from pork and poultry will have any adverse effect on the consumer or provoke action by other Member States. Indeed, it might be said that the effect of the order would do no more than permit the Claimant to do in this country what it seems many other establishments in the meat industry are currently doing elsewhere in the EU.[32]So far as unfair competition is concerned, the same point can be made. I have already referred to evidence that in Italy, Germany and the Netherlands meat suppliers are producing de-sinewed meat from pork and poultry under low pressure without always labelling it as MSM: producers in these states appear to have devised various terms in substitution for MSM. In the light of this evidence I find it hard to see how the grant of interim relief to the Claimant will materially alter the imbalance of competitive advantage that already exists.[33]The most important factor, it seems to me, is that to prevent the Claimant from being allowed to continue production of de-sinewed meat from pork and poultry would deprive it of any effective protection of its rights under EU law if the Court of Justice determines against the Commission the question that I have referred to it. It would almost certainly put it out of business. By contrast, to allow the Claimant to resume production may well do no more than put it in the same position as some of its competitors in other Member States.

The 51 tonnes of frozen lamb

[34]When I prepared my second judgment there had been a conflict of evidence about the value of this 51 tonnes of frozen lamb that was in storage. Mr. Manning had originally said that it was worth about £60,000 (see his fourth witness statement, paragraph 25). In a witness statement, which was then unsigned but was served on about 10 June 2013, Mr. Romero-Gallego, a Veterinary Field Manager of the FSA, said that he had been informed by his colleagues that the frozen lamb could probably be sold for about £70 per tonne, whereas it would cost about £30 per tonne to destroy. Accordingly, the value to the Claimant of the meat if it could be sold would be about £100 per tonne.[35]I did not attach great importance to the fact that this evidence about the price of the meat was not challenged by the time of the hearing on 20 June 2013 because during the hearing the Claimant appeared to accept that its original figure was too high and that a value of about £20,000 was more appropriate. By the time of the hearing on 26 September 2013 both parties had had a further opportunity to investigate this valuation if they so wished, but neither side put forward any further figures.[36]I cannot rely on the Claimant’s original figure for the value of the frozen lamb in the light of the lower figure it put forward at the hearing on 20 June 2013. But, by the same token, in the absence of further evidence, I do not feel able to rely on the value of £5,000 alleged by the FSA in preference to the £20,000 put forward by the Claimant at the hearing on 20 June 2013.[37]On this basis, I have considered whether my original view that the balance of convenience was in favour of the Claimant can be sustained. Whilst I accept that the health risks involved in allowing this product to be used as food for cats and dogs are very, very low, there is a perception of risk which in my view cannot be disregarded, as I noted in my second judgment. If there were a substantial sum at stake, so that there was the potential for substantial prejudice to the Claimant if the meat could not be sold, then that would be a factor which could properly be taken into account so as to shift the balance of convenience in favour of the Claimant, which was the view that I took when granting conditional interim relief.[38]The Commission submitted that safeguard measures “could well be adopted” by certain member states, although limited to pet food manufacturers, if the 51 tonnes of lamb were released for use in pet food. It relied on what was said at the discussion on 17 September 2013 which I have already considered.[39]When I issued this judgment in draft, I was inclined to refuse relief for the 51 tonnes of lamb on the ground that its value was only £5,000, as the Commission had emphasised in its skeleton argument. I had, I regret to say, overlooked the fact that the figure of £20,000 had been put forward at the hearing on 20 June 2013 (at which, of course, the Commission had not been present) and unfortunately this figure was not mentioned in the Claimant’s skeleton for the hearing on 26 September 2013. However, the error was mine, and I do not consider that the material presented by the Commission outweighs the factors referred to at paragraph 103 of my judgment dated 26 July 2013.[40]For these reasons, I conclude that effectively nothing has changed since the hearing on 20 June 2013, and so I do not consider that I should alter my view of where the balance of convenience lies. I am therefore prepared to grant relief in respect of the 51 tonnes of frozen lamb.

The threshold issue

[41]In my judgment of 26 July 2013 I refused to grant interim relief in relation to de-sinewed meat produced from ruminants. A significant factor leading to this conclusion was the report of the deliberations of the TSE Risk Assessment Sub Group of the Advisory Committee on Dangerous Pathogens held on 25 May 2012.[42]Mr. Comer’s evidence was that the members of this committee “… seem to have focused on bovine material and do not expressly consider whether there is any risk associated with DSM from lamb” (at paragraph 13). He then goes on to say that in his view there is no TSE risk at all associated with de-sinewed meat or MSM derived from lamb bones. Whilst I see the force of his interpretation of the notes of the meeting, they are no more than minutes. However, it is clear, from paragraph 2.2, that the Committee began by considering the use of ruminant from both sheep and beef. This is because the reference to ruminant bone having been used in food since 2006 can only refer to the bones of sheep, because, as the paragraph notes, bovine bones have only been used in the production of de-sinewed meat since 2008.[43]According to the minutes, the summary of the advice provided by the Committee included the following:
“Members felt that the TSE risk from DSM, as produced in the UK from 2006 until April 2012, is likely to have been similar to that which would have been by MSM produced from ruminant bone had such MSM production being allowed. The risk is low from both products and similar to the raw material that is used in the process. … Members agreed that the human TSE risk from exposure to BSE post 1996 was small overall: this conclusion remained true notwithstanding DSM production from bovine bones after 2008, by which time the BSE epidemic had greatly declined.”
[44]My reading of this is that the Committee does not seem to have drawn a distinction between the bones of sheep and cattle. I would therefore have had some reservations about accepting Mr. Comer’s evidence unreservedly even if it were to be admitted.[45]However, of more significance in my view is the fact that these minutes formed part of the material produced by the Claimant in the original hearing bundle which was filed with the court on 3 May 2013 in preparation for the first hearing on 22/23 May 2013. The expert whom the Claimant had instructed for the purposes of that hearing, and whose statement was before the court, was Dr. Woolfe. He is a consultant who has 25 years’ experience of working for the UK government. His witness statement dealt with the regulatory background and the legal definitions of the methods of meat production. His first degree was in chemistry and he has a PhD in Food Science. He started to work for the Food Science Division of MAFF in 1984, and joined the FSA when it was founded in 2000. He had significant involvement with de-sinewed meat and MSM.[46]It seems clear to me that Dr. Woolfe was perfectly well qualified to comment on the minutes of the meeting of the TSE Risk Assessment Sub Group on 25 May 2012. In the second paragraph of his witness statement he made it clear that its purpose was to support the Claimant’s case that the FSA’s decision to introduce a moratorium on the production of de-sinewed meat was unlawful. He was very familiar with the low pressure deboning process employed by the Claimant. He said that he was involved in the industry discussions that led to the definition of mechanically recovered meat in the 1995 UK Minced Meat Regulations. In his witness statement he described the consequences of the BSE crisis and why the production of MSM from all bones was made illegal as a precautionary measure. At paragraph 13 he said this:
“This was probably because of the concern that the very intensive process entailed in making MSM, which involved squeezing out all matter from the bones and not just recovering the meat, might not be completely safe. However, meat on the ordinary bones of such animals that were less than 30 months old was deemed entirely safe.”
At paragraph 31 of his witness statement Dr. Woolfe made these observations:
“As the FSA communication made clear, the European Commission confirmed that ‘they do not consider [De-sinewed Meat] to be an identified public health concern’ [reference inserted]. Accordingly, there is no food safety reason to ban the production of ruminant De-sinewed Meat, no reason for urgency, and no reason to prevent the UK from obtaining an authoritative legal determination of the matter before destroying businesses such as Newby Foods.”
[47]Accordingly, I have the clear impression that if Dr. Woolfe had been asked to consider the minutes of the meeting of the TSE Risk Assessment Sub Group on 25 May 2012 he would not have been inhibited from expressing his conclusions, whatever they might have been, in suitably trenchant terms.[48]There is no doubt that the Claimant was well aware of the meeting of the TSE Risk Assessment Sub Group on 25 May 2012 because I was referred to its scientific conclusions by Mr. Hugh Mercer QC in his submissions to the court during the first hearing before me on 22 May 2013. Indeed, the conclusions of the committee were again relied on by Mr. Mercer in the Claimant’s skeleton argument for the hearing on 20 June 2013 (see paragraph 29e). The point made there was that the Committee concluded that it was not the Claimant’s process that increased the risk, rather it was the source material that was relevant.[49]This is an important point because, as the horse meat scandal shows, there are always producers of meat or meat products who are prepared to deceive the public for commercial advantage. The evidence submitted on behalf of the Commission was that the EU rules imposed strong restrictions to manage the risk of BSE units for ruminants because the risk of BSE was not negligible. In his third witness statement dated 24 September 2013 Mr. Manning said that species segregation was taken very seriously in the UK and that all carcasses were checked by the Official Veterinarians on each site to prevent any possible contamination. He said that the Claimant’s suppliers’ facilities were audited on a regular basis to ensure compliance with the regulations.[50]It is against this background that I must consider the threshold issue.[51]In Chanel Ltd v FW Woolworth & Co Ltd [1981] 1 WLR 485 the claimants brought an action for infringements of trademarks of which they were the registered proprietors and for passing off. An application for interim relief was stood over until trial by consent on the basis of undertakings given by the defendants. Six months later the Court of Appeal decided a point of law in relation to the use of trademarks by companies who were part of a group of companies which the defendants considered would have been capable of affording a defence to the application for interim relief if that case had been decided before the first hearing. On an appeal against the refusal of the judge to release them from their undertakings, Buckley LJ summarised the defendants’ submissions as follows, at page 491H:
“The second defendants in the present case contend that that decision threw new light on the legal position of the parties in this case, and that this, in conjunction with the additional evidential material which they had acquired since they gave their undertakings, created a new state of affairs, in which they were entitled to ask the court to discharge the undertakings.”
[52]The Court of Appeal held that they should not be allowed to reopen the matter six months later having armed themselves with evidence which they could have obtained on the earlier occasion but failed to do so. He said, at page 492H:
“Even in interlocutory matters a party cannot fight over again the battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter.”
[53]A similar point arose 20 years later in the case of The Leadmill Ltd v Karl O’Mare (Trading as The Treadmill) [2002] EWHC 1226 (Ch). Hart J said this, on page 6:
“… the principle underlying Chanel v Woolworth is that all matters in issue between the parties which are capable of being dealt with on the hearing of the interlocutory injunction should be dealt with then and that afterthoughts of one kind or another should not be permitted to be made the foundation of subsequent applications pending trial to vary the order.”
[54]It seems to me that the Claimant’s application that the court should reconsider the question of interim relief in relation to the production of de-sinewed meat from lamb falls squarely within this principle.[55]The Claimant does not rely on any underlying material that was not available to it at the time of the first hearing. Indeed, as I have shown, the minutes of the committee meeting that form an important part of this application were actually drawn to the attention of the court and relied on at both of the previous hearings in May and June 2013. All that has happened is that a fresh pair of eyes, in the form of Mr. Comer, has looked at the same material and drawn a conclusion from it that could have been drawn at any time since the commencement of these proceedings. In reaching this conclusion I do not intend to make any criticism of the Claimant or those advising it: this is just the sort of thing that happens in substantial litigation.[56]Accordingly, the Claimant has not in my judgment crossed the threshold that would permit the court to reopen the question of interim relief in relation to the production of de-sinewed meat from lamb. This is not a conclusion that I reach with any enthusiasm because I have considerable sympathy with the Claimant’s case. In any event, as I have already indicated, I am far from certain that Mr. Comer’s evidence, if available at the earlier hearings, would have altered my view about the grant of this interim relief. I remain of the view that considerations of public interest tip the balance against the grant of interim relief in relation to the production of de-sinewed meat from lamb. The problem, as I have already explained, is largely one of perception: this is a very sensitive market in the light of recent scandals and the risk of the Claimant processing a lamb that is not under twelve months old, or is otherwise contaminated, although very low cannot be dismissed as negligible.[57]Looking at the matter overall, I find that there is a risk, albeit a very low one, that if the Claimant were allowed to produce de-sinewed meat from lamb bones, this could produce some form of reaction from one or more other member states of the EU that could have the potential to damage the UK meat industry. Unfortunately, and somewhat ironically, this is a risk that has been increased in part by the existence of this litigation and the publicity that it has received. The evidence shows that other member states are now aware of the facts giving rise to this litigation, being matters of which they might otherwise have remained ignorant. That is a factor that I find this court cannot ignore.

Costs

[58]Following the issue of this judgment in draft, I received submissions from the parties in relation to costs. The Commission, very properly, if I may say so, does not seek an order for costs against the Claimant, although it resisted successfully the Claimant’s attempt to re-open its application for relief in relation to lamb production. So far as the Commission is concerned, therefore, there will be no order for costs.[59]So far as the FSA is concerned, my provisional view is that the Claimant should pay 50% of the FSA’s costs of the hearing on 26 September 2013 in any event, in order to reflect the costs wasted by the threshold issue. The remaining 50% of the FSA’s costs and 50% of the Claimant’s costs should be costs in the case.[60]I give permission to both the claimant and the FSA to make written submissions (confined to two sides of A4) if they wish to persuade me to make a different order. Such submissions must be lodged within seven days of the handing down of this judgment.