Neutral Citation Number:  [2013] EWHC 3573 (Admin)
Case No:  CO/6923/2012
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Rolls Building, 7 Rolls Buildings
London EC4A 1NL

Date:  22 November 2013

Before :

MR. JUSTICE EDWARDS-STUART
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Between:
	The Queen (on the application of Newby Foods Ltd)	Applicant	
	- and -		
	Food Standards Agency
(No. 4)	Respondent	
	The European Commission	Interested Party	

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Hugh Mercer Esq, QC & Andrew Legg Esq
(instructed by Clarke Willmott LLP)) for the Applicant
Jason Coppel Esq, QC (instructed by Food Standards Agency) for the Respondent
Nicholas Khan Esq (instructed by the European Commission) for the Interested Party

Hearing dates:  26th September 2013
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Judgment
Mr. Justice Edwards-Stuart:
1.	The hearing on 26 September 2013 would have taken place in any event in order to determine whether or not the Claimant should be allowed to continue production of de-sinewed meat from pork and poultry and to sell the 51 tonnes of frozen lamb. The Claimant was successful on both of these issues.
2.	Accordingly, if other things were equal, the FSA would have been ordered to pay the costs of that hearing in any event.
3.	However, other things were not equal:  the Claimant chose to reopen the question of the continued production of de-sinewed meat from lamb.  Substantial evidence was filed in support of this application and the FSA had to prepare submissions in opposition to it (the relevant evidence was prepared by the Commission).  In the event, the FSA was successful in resisting the application on a point of procedure (“the threshold issue”).  It is therefore clear that the Claimant failed on this part of its application and so it should have to pay the costs of dealing with it.
4.	The question is how to translate these conclusions into a practical order for costs that does not involve either side in protracted examination of its own and the other side’s costs.
5.	In my view, the justice of the case will be met by the following order:
i)	The Claimant is to bear its own costs in any event of the application for permission to continue production of de-sinewed meat from lamb.  For the avoidance of doubt, these will include the costs of the witness statements that were directed, wholly or substantially, to that issue.
ii)	The FSA is to pay 50% of the Claimant’s costs of the hearing in any event.  Those costs are to include 50% of counsels’ fees, save for those fees incurred prior to the hearing in relation to the preparation of the evidence in support of the application to continue production of de-sinewed meat from lamb (which are to be borne by the Claimant).
iii)	The costs of preparing the submissions on costs are to be paid by the FSA in any event.
iv)	All other costs are to be costs in the case.
6.	If there is anything with which I have omitted to deal, the parties have permission to raise it in writing.