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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Astonquest Ltd, R (on the application of) v Ministry Of Agriculture, Fisheries & Food [1999] EWCA Civ 570 (14 January 1999) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1999/507.html Cite as: [1999] EWCA Civ 570

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST

		Royal Courts of Justice
		14th January 1999

HIRST LJ

This is an application by Astonquest Ltd. for leave to appeal against the order of Moses J. dated 23rd February 1998 in which he refused its application for judicial review of the decision of the Ministry of Agriculture, Fisheries and Food dated 25th September 1997, pursuant to which their vessel LOFOTON was allocated its fishing quota for October 1997.

The case concerns the lawfulness of the manner in which the Ministry allocates fish quotas to vessels, such as that owned and managed by Astonquest, which are not members of producer organisations. Vessels in producer organisations (known as sector vessels) operate under internal systems in which these organisations allocate fish quotas to their members, and in which the Ministry plays no role; the critical question presently at issue is whether the Ministry's system of allocation discriminates against vessels outside producer organisations, known as non-sector vessels, in breach of EC law. Moses J held that, although the sector and non-sector vessels were treated differently, nonetheless the difference was objectively justified and proportionate.

The problem with which we are immediately concerned arises from the decision on 6th January 1999 of the Sheriff in the Sheriff Court of Grampian Highlands and Islands at Stornoway, in a prosecution of the owner and master of a vessel called the Pembroke for alleged fishing offences, whereby the Sheriff decided to refer the case to the ECJ under Article 177. That case raises issues which in several critical respects overlap the issues in the present case, and the Sheriff had the advantage of considering the judgment of Moses J in the present case.

He concluded:-

"The Defence challenge to the competency of Charge No. 2 calls into question the validity of the provisions upon which the charge proceeds as being in contravention of Article 40(3) of The Treaty of Rome. Having heard senior counsel for the accused and the Procurator Fiscal on this matter and being of the view that while there is at least a stateable argument to support the defence challenge, the position was not abundantly clear. I went on to consider whether it was more appropriate (a) to seek a preliminary ruling from the European Court or (b) to allow the case to go to trial under reservation of the preliminary plea and, if appropriate, to seek such a ruling in the course of the trial. In essence there has been brought into question the validity of fishery quota provisions as applying to the United Kingdom's jurisdiction and possibly elsewhere within the E.E.C., and the great importance of the issue is manifest. It therefore appears to me that there should be an authoritative pronouncement on this matter quam primum and for that reason I have decided that it is appropriate in hoc statu to seek a ruling."

The exact formulation of the questions to be referred is presently under consideration, but in the latest draft they are as follows:-

"(1) Does the imposition of conditions setting out monthly quotas of white fish in the licences of owners of vessels who are not members of Producers' Organisations, thereby rendering the owners and masters of such vessels liable to criminal prosecution amount to discrimination in breach of Article 40(3) of the Treaty of Rome when licences issued vessels whose owners are members of Producers' Organisations contain no such conditions in respect of such fish?

(2) Is the system of allocation of fish quotas to the sector and non-sector in any other respect discriminatory in terms of said Article or contrary to E.E.C. law?"

Question (2) encompasses a number of the issues which were before Moses J.

Once those questions are finalised, it is plain from the evidence before us that Crown Counsel will consider an appeal to the Court of Session in Edinburgh against the decision of the Sheriff to make the Article 177 reference.

Mr Randolph on behalf of the applicant invited us to follow suit and make an immediate reference ourselves, but in my judgment that would be clearly inappropriate at the present juncture, not least because it might result in us pre-empting the decision in Scotland should the appeal go ahead.

His alternative and much more attractive submission is that we should adjourn this application until the position in Scotland has been finally established.

Mr Roth's main argument on behalf of the Ministry is that Moses J's decision was plainly right, that this is a case of acte claire, and that consequently there is no need for a reference. However, while reserving that argument for the future, he did not strongly resist an adjournment at the present stage, and rightly recognised how important it is in the interests of comity that there should be no divergence between the English and Scottish courts on this question. As was emphasised by Sir Thomas Bingham MR in the case of R. v. International Stock Exchange, ex parte Else Ltd [1993] QB 534 at page 545, the court must be fully mindful inter alia of the need for uniform interpretation throughout the Community and of the great advantages enjoyed by the ECJ in construing Community Instruments.

Furthermore, as Ward LJ pointed out in argument, it would be most unfortunate if we were to hear and dismiss the appeal, and if thereafter prosecutions were to go ahead in England while the matter was still at large in Scotland, in particular if it was finally subject to an Article 177 reference.

It follows that in my judgment we should adjourn this application for leave to appeal pending the outcome of the present proceedings in Scotland, with liberty to both sides to apply once the position as to the Sheriff's Article 177 reference has been finally and conclusively established. At that stage it would be appropriate to restore the application, the outcome of which would inevitably be strongly influenced by the ultimate decision in Scotland.

Order: Application for leave to appeal adjourned as per judgment.