Global Feedback Ltd, R (on the application of) v His Majesty’s Treasury & Anor [2024] EWHC 1810 (Admin)

Adam Riley (instructed by the Government Legal Department) appeared on behalf of the Defendants

MS JUSTICE LANG:

• The claimant applies for permission to apply for judicial review of the defendants’ decision to make the Customs Tariff (Preferential Trade Arrangements and Tariff Quotas) (Australia) (Amendment Regulations 2023) (“the 2023 regulations”). The 2023 Regulations were made jointly by the defendants on 23 February 2023 under Part one of the Taxation (Cross Border Trade) Act 2018 (“TCTA 2018”). They came into effect at midnight on 31 May 2023. They implement the UK’s obligations under a free trade agreement with Australia (“the FTA”) which gives preferential tariff treatment to Australian imports.

• The claimant is a charity whose purpose is environmental protection. It specialises in addressing the environmental impact of food production.

• The claim was issued on 22 May 2023. By an order dated 6 February 2024, Mr Justice Choudhury directed a rolled-up hearing for permission and the substantive hearing, to be listed as soon as possible after 4 March 2024. He further ordered that the claimant’s applications to admit further evidence (the expert reports of Professor Behrens) (“Behrens 1” and “Behrens 2”), and for Aarhus Convention cost limits under CPR 46.24-28, should be determined at the rolled-up hearing. He also granted the claimant permission to rely upon Its Reply. His reasons for his order were that:

” Given the unfortunate delay in this matter, it is appropriate that the matter be determined with a degree of expedition. As there are issues as to the evidence to be relied upon and cost protection. The most appropriate courses for there to be a rolled-up hearing. This will ensure the matter is dealt with speedily.”

• The Judge also made case management directions which included a direction that the defendants’ Summary Grounds of Resistance should stand as the Detailed Grounds of Resistance.

• By an application dated 8 February 2024, the defendants applied to vary Mr Justice Choudhury’s order, so as to make provision for the defendants to file Detailed Grounds of Resistance, and any evidence relied upon, but only once the claimant’s application to rely upon expert evidence had been determined. The defendants applied for the hearing to be listed, in line with counsel’s availability, on the first available date six weeks after the filing of the Detailed Grounds of Resistance.

• By an application dated 9 February 2024, the claimant applied to vary Mr Justice Choudhury’s order, so as to make provision for the court to decide whether or not this was an Aarhus Convention claim and, if not, to determine the application for permission on the papers, so as to enable the court to consider the claimant’s alternative application for a judicial review cost capping order, which is only available once permission has been granted.

• The applications to vary Mr Justice Choudhury’s order were considered by Sir Duncan Ouseley, sitting as a High Court Judge, on 21 March 2024. He referred the applications to vary to be determined at an oral hearing, which is the hearing listed before me today. The order provided that the Judge should consider the following matters at the oral hearing. First, whether or not permission should be granted or whether the claim should proceed as a rolled-up hearing. Second, if it is concluded that the claim is not an Aarhus Convention claim, whether a cost capping order should be made. In the meantime he ordered that the directions in Mr Justice Choudhury’s order should be stayed.

• Sir Duncan Ouseley also stated in his reasons that the decision on the admissibility of the claimant’s expert evidence should be made prior to the substantive hearing, to enable the defendants to respond to it, if necessary.

• Following Sir Duncan’s Ouseley’s order, further applications have been made by the parties, which I shall address in due course.

Rolled-up hearing

• In my view, a rolled-up hearing presents difficulties for determining the cost protection orders in this case. The parties also need to know, in advance of any hearing and before the Detailed Grounds of Defence and evidence are filed, whether and to what extent the claimant is entitled to rely on its expert evidence, as the issue of expert evidence is linked to Grounds 1 and 2.

• I have had the benefit of oral submissions today and a large volume of written material and skeleton arguments, so I am in a more fortunate position than Mr Justice Choudhury and Sir Duncan Ouseley. Therefore, I have decided that it is appropriate for me to determine the application of permission today.

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