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Judgment
Title: | Long -v- Bord Bia & ors |
Neutral Citation: | [2016] IECA 316 |
Court of Appeal Record Number: | 2015 276 |
Court of Appeal Record Number: | 2015 276 |
Date of Delivery: | 08/11/2016 |
Court: | Court of Appeal |
Composition of Court: | Peart J., Irvine J., Keane J. |
Judgment by: | Peart J. |
Status: | Approved |
Result: | Dismiss |
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THE COURT OF APPEAL
Neutral Citation Number: [2016] IECA 316
APPEAL NO.: 2015 276
PEART J.
IRVINE J.
KEANE J.
BETWEEN/NOEL LONG PLAINTIFF / APPELLANT - AND-
BORD BIA, IRISH NATIONAL ACCREDITATION BOARD, NATIONAL STANDARDS AUTHORITY OF IRELAND, DEPARTMENT OF AGRICULTURE, FOOD AND THE MARINE DEFENDANTS / RESPONDENTS
JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 8TH DAY OF NOVEMBER 2016
1. By her order dated 25th March 2015 Ms. Justice Baker struck out the these proceedings under O. 19, r. 28 RSC, on application in that regard by the defendants, for two reasons:-
The plaintiff appeals against these findings, but for the reasons I set out below, I consider that his appeal must fail.
2. The trial judge gave careful consideration to the submissions made to her by the plaintiff on the hearing of the motion, and in a careful and detailed written judgment she explained why she considered the plaintiff does not have standing, and also why she considered that the proceedings are bound to fail. She also considered the relevant case law and principles to be applied when considering an application such as that before her, and in my view she correctly applied those principles.
3. As the trial judge records in her judgment, the plaintiff has a background in horticulture and food science as well as quality food assurance, and holds, inter alia, a BSc degree in Quality Management, and other diplomas and certificates in that area of expertise. As noted also, he is a qualified trainer in Management Systems and is experienced in the implementation, training and lodgment of applications for accreditation and certification in the food industry, and indeed other sectors. He has been in business in these capacities for upwards of 20 years, and it appears that he trades under the name QMS Solutions. He has described himself as an ISO systems expert who operates within the framework of Regulations EC 765/2008, EC 768/2008 and EC 764/2008.
4. Lest I do him a disservice in my brief outline of his qualifications and expertise, I refer to what he has stated himself at para.33 of a 400 paragraph document included in the papers for his appeal which, though headed ‘Affidavit of Noel Long’, is in reality a lengthy submission prepared for this appeal, though, it must be said, it also contains many factual matters which were not before the High Court. But the plaintiff represents himself on this appeal, as he did in the Court below, and I make some allowance to him with regard to the form of the materials which he has submitted. But there is no doubt that the document is prolix in the extreme. At para. 33 he states the following “for the assistance of the court”:
“ … in addition, I am a qualified trainer, QQI approved ‘training centre’ specifically in ISO standards and quality management across all sectors. Also food safety, health and safety and environmental management and audit systems. I am also an internal auditor and without an aire [sic] of arrogance or ego, I say only to affirm my knowledge, understanding and experience, I am in a very very small pool of individuals in this country qualified to fulfil the requirements of ISO conformity assessment and industry standards application with respect to quality management”.
5. The trial judge referred to the fact that on the 24th February 2014 QMS Solutions had submitted a response to a tender issued by Bord Bia on the 10th February 2014 for the provision of information technology services for the development and implementation of what is described as a web-based portal named ‘Origin Green Platform’ in order to facilitate communications and engagement with a sustainability development programme for Irish food, drink and horticultural companies. However, QMS was unsuccessful in its application for the award of this tender and was so notified by letter dated 7th April 2014. Thereafter the plaintiff arranged to meet with representatives of Bord Bia to discuss the reasons why his bid was unsuccessful, following which he sent a number of emails to various government departments, media outlets and other statutory and public bodies in which, as the trial judge notes, he complained that the tender process was in breach of EU and national public procurement legislation, and that the entire agri-food sector “is being criminally exploited”. The trial judge noted that some of the language used in these emails was “unnecessarily inflammatory” and that the plaintiff accepted this to be the case, and further that he had requested her to look upon his complaints therein as “motivated by a desire for excellence in standards in the food industry”. I see no reason not to accept the sincerity with which he holds his views.
6. As to the nature of the plaintiff’s complaints the trial judge states at paras. 6 and 7 of her judgment:
“6. He tells me that his complaint is that the system operated by the defendants is in breach of the various statutory and EU obligations of those bodies, and that there is a flaw in the constitution of those bodies, primarily because he says the boards of the bodies consist of persons who have, or could objectively be seen to have, a conflict of interest. He points to the fact that there is a considerable overlap between the members of the boards in the various organisations, and as a result he says that the system is corrupt and not sufficient to meet the needs of producers.
7. His specific complaint as was articulated in the course of the hearing before me was that the bodies, and the enabling legislation, incorrectly transpose as EU law or EU requirements in that the focus of the Irish accreditation and standards scheme is the market and not the needs or abilities of producers. He describes the schemes and the operation of the schemes as being “market driven”, and said that they ought to be “producer driven”.
7. It is clearly part of the plaintiff’s case that the defendant bodies and entities are failing in their obligations under the EU regulations to which he refers. On this appeal he has reiterated that essentially his complaint is that the accreditation system as operated by Bord Bia is market driven whereas it ought to be producer driven. He has pointed to the fact that among the members of Bord Bia are senior figures in some of the very large multiples operating in the Irish market.
8. His statement of claim expands upon the nature of his complaints including those of bias and lack of impartiality on the part of Bord Bia and the second named defendant, INAB. He states that he has made all his complaints known to the various bodies but without success. His statement of claim concludes as follows:
“The combined and collective efforts by the defendants represents an absolute and total breach of confidence, impartiality and manipulation of producer industry standards (ISO) and EU public procurement whereby the design, application and piecemeal implementation of An Bord Bia schemes in no way reflects producer processes, the product of which is subject to certification and which does not meet standards re. costs of production, moreover the implementation of such a scheme serves not to facilitate producers, rather is a restrictive measure and designed to support markets in the delivery of Irish producer resources.
Put simply An Bord Bia as a statutory body and governed by ISO 17065:2012 as an accredited organisation with responsibility for Quality Assurance Schemes Certification are intended to be supporting A (producers) and they are actually supporting B (markets). The co-defendants are complicit in their accreditation, certification or endorsement of such schemes, given the interrelated organisational structures enabling same.
As a result of the above I have suffered losses, time, cost and profit, estimated and continuing. Special damages, if necessary an application will be made at the hearing of this case seeking damages.” [‘bold’ in original]
9. Among the plaintiff’s activities under the aegis of QMS Solutions is that he assists producers of products, including in the food and agri-sector, to achieve accreditation with Bord Bia. He will be engaged for a fee by producers to assist them in fulfilling the necessary criteria for achieving that accreditation, and in so doing will audit their manufacturing and management practices, and presumably make recommendations so that the criteria are met. He may also have an ongoing relationship with clients to ensure that following accreditation they continue to maintain appropriate standards. The trial judge stated in that regard:
“Neither the plaintiff nor his trading body QMS Solutions, is a manufacturer, importer order structure or an authorised representative of a manufacturer, importer or distributor, and cannot be said to be an economic operator in that context. The firm in fact provides the service of the training of operators, manufacturers, importers etc., assists them in preparing an application for accreditation, and could be said to be secondary to the process, or to be a body which assists persons to avail of those processes. It seems to me in that context that neither the plaintiff nor his firm can have standing to challenge the means by which the Regulations have been incorporated into Irish law, or the means by which the various defendants have met their obligation to have a harmonious and functioning accreditation system. If there is a claim, it is a claim that may be made by producers, importers or distributors, and in that regard I am persuaded by the plaintiff’s own argument that his true claim is that the EU regime, and the statutory realisation of that scheme in Ireland, ought to be producer-led rather than market-lead. If his claim is that producers are not properly considered or dealt with under the process, then it is only a producer who could be said to have standing to prosecute such an action”.
10. I should add that the plaintiff has made it clear that these proceedings are not a collateral attack on the decision of Bord Bia not to award him the tender referred to. He is not seeking to challenge that, and certainly did not attempt to pursuant to S.I. 420 of 2010 and under O.84A RSC.
11. In the High Court the defendants sought to argue that the plaintiff as an individual did not have standing to represent the entity QMS Solutions, and that all the persons who trade under that business name ought to be named as plaintiffs. They complained that he had not explained why only he was the plaintiff, nor given any detail as to the structure of QMS. However, the trial judge, correctly in my view, concluded that in so far as there was merit in that argument, it was something that could if necessary be addressed by an application to amend the title of the proceedings so as to bring in as plaintiffs any person who ought to be a named plaintiff. She went on to deal with the issue of standing on a more substantive basis.
12. In her conclusions on standing the trial judge noted that the claims being made by the plaintiff are that the system operated by Bord Bia “does not respect producers and he is not a producer”. She went on to state at the end of para. 21 of her judgment that “if his claim is that producers are not properly considered or dealt with under the process, then it is only a producer who could be said to have standing to prosecute such an action”.
13. The plaintiff in the High Court and before this Court argued that he has standing, not because he was a producer as such, but that he was an economic operator working with ISO standards with regard to industry compliance and conformity, and is also within the definition of an “authorised representative” provided in EC 765/2008. The trial judge considered whether the plaintiff could correctly be seen as coming within the Regulation’s definition of an “authorised representative” for the purpose of giving him standing in these proceedings. In her conclusion that he was not, she stated at para. 20:
“The plaintiff argues that he is an “authorised representative” within the meaning of the definition contained in Article 2.4 of Regulation E.C.765/2008 of 9 July, 2008 which sets out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93, O. J. L 218/30 13.8.2008. That Regulation defines “economic operators” as meaning a manufacturer, authorised representative, importer and distributor. The purpose of the Regulations is to ensure a harmonisation in standards consistent with free movement of goods and public health. In that context it seems to me that what the Regulation intended was that certain economic operators would be entitled to avail of harmonised accreditation and standards under procedures to be established by national States for the purpose of meeting the requirements under this Regulation and the associated Regulations. An “authorised representative” in that case would be a representative of a body be it a manufacturer, a supplier, and importer, a distributor or some other person or body which is authorised to represent the entity for the purposes of availing of the accreditation or standards scheme. Those bodies, the importer, distributor, manufacturer or grower of foodstuffs are the persons who have standing to avail of any regime established under the Regulations, and the authorised representative of these bodies may equally be said to have standing thereunder.”
14. In contending that the trial judge fell into error in deciding that he is not an “authorised representative” within the definition of that term in the Regulation, the plaintiff refers to the terms of the contract under which he is typically engaged by his clients when they seek his assistance when seeking accreditation from Bord Bia. The Court has seen that form of contract. In it QMS is described as “authorised representative” and in its opening two lines under the heading ‘Purpose and Objective’ the contract states:
“This document outlines the Service Level Agreement between QMS as Authorised Representative (EC 765/2008) and [client] for the provision of Bord Bia Horticulture Systems Quality Assurance Scheme 2009 ………”.
15. It goes without saying almost that simply because a document drawn up by a party describes that party as an authorised representative does not mean automatically that the person is an authorised representative for the purpose of the Regulation. The Regulation defines “authorised representative” in Article 2 as follows:
“authorised representative’ shall mean any natural or legal person established within the Community who has received a written mandate from a manufacturer to act on his behalf in relation to specified tasks with regard to the latter’s obligations under the relevant Community legislation”.
16. Relevant also is the definition of “economic operator” since it encompasses “the authorised representative”. It is defined as follows:
“‘economic operator’ shall mean the manufacturer, the authorised representative, the importer and the distributor.”
17. The context in which the term “authorised representative” in so far as it is within the definition of “economic operator” appears in the Regulation becomes clear when one considers the Articles which refer to an economic operator. For example, Article 19.1 provides for measures in relation to market surveillance of products to ensure that they do not present a risk to public safety. It provides as follows:
“19.1.Market surveillance authorities shall perform appropriate checks on the characteristics of products on an adequate scale, by means of documentary checks and, where appropriate, physical and laboratory checks on the basis of adequate samples. When doing so they shall take account of established principles of risk assessment, complaints and other information.
Market surveillance authorities may require economic operators to make such documentation and information available as appear to them to be necessary for the purpose of carrying out their activities, and, where it is necessary and justified, enter the premises of economic operators and take the necessary samples of products. They may destroy or otherwise render in operable products presenting a serious risk where they deem it necessary.
Where economic operators present test reports or certificates attesting conformity issued by an accredited conformity assessment body, market surveillance authorities shall take due account of such reports or certificates.” [emphasis added]
18. Given that a “manufacturer” is defined as meaning “any natural or legal person who manufactures a product or has a product designed or manufactured, and markets that product under his name or trademark” such a manufacturer may be physically located outside the European Union, yet distributing its product within the EU. Clearly, in my view, the “authorised representative … who has received a written mandate from a manufacturer to act on his behalf in relation to specified tasks with regard to[the manufacturer’s] obligations under the relevant Community legislation” must be seen in a context where the Member State may wish, for example, under Article 21, to communicate without delay with the relevant economic operator in relation to products which have been found to present a serious risk requiring rapid intervention, such as withdrawal from sale, and where the manufacturer in question is outside the territory of the European Union the authorised representative (being within the definition of ‘economic operator’) can be communicated with in accordance with the regulation. That in my view is the clear context in which “authorised representative” is to be understood. The reference to “authorised representative” within the QMS Service Level Agreement to which the court has been referred cannot be interpreted as constituting QMS as the authorised representative for the purpose of the Regulation, even though it states this.
19. I do not disagree with the conclusion reached by the trial judge in relation to this argument as appears in paragraph 20 of her judgment which I have already quoted at paragraph 13 above. It seems quite clear that the mere mention in the Service Level Agreement of the phrase “authorised representative” cannot of itself and without reference to the context in which that phrases used within the Regulation, give the plaintiff standing to maintain these proceedings.
20. Insofar as the plaintiff’s complaint as formulated in these proceedings is really a general complaint that the manner in which Bord Bia implements the Regulation is not in accordance the Regulation, it is worth noting the provisions of Article 9 thereof which provides:
"1. Where a national accreditation body does not meet the requirements of this Regulation or fails to fulfil its obligations hereunder, the Member State concerned shall take appropriate corrective action or shall ensure that corrective action is taken, and shall inform the Commission thereof.
2. Member States shall monitor their national accreditation bodies at regular intervals in order to ensure that they fulfil the requirements laid down in Article 8 on a continuing basis.
3. Member States shall take the utmost account of the results of peer evaluation under Article 10 when Carrying out the Monitoring Referred to in paragraph 2 of this Article.
4. National accreditation bodies shall have in place the necessary procedures to deal with complaints against the conformity assessment bodies they have accredited.”
21. It seems clear that Article 9 places the obligation to monitor the manner in which a national accreditation body does its job under the Regulation upon the Member State. There is nothing within the Regulation to suggest that somebody in the position of the plaintiff who provides services to clients to assist them with an accreditation application as any standing to raise a complaint about the manner in which the national accreditation body does its job. Certainly the Member State has obligations in that regard. In my view the trial judge was entirely correct to conclude that the plaintiff did not enjoy the necessary standing to seek the reliefs which he claims in the present proceedings and for that reason alone, to dismiss the proceedings on the basis that they are bound to fail. She was also correct, in my view, when she stated that “if his claim is that producers are not properly considered or dealt with under the process, then it is only a producer who could be said to have standing to prosecute such an action”.
22. The trial judge, having dealt with the issue of standing, then addressed the defendants’ other basis for seeking to have these proceedings struck out, namely that the plaintiff’s proceedings comprised a general challenge to the manner in which the defendants operated the Regulation, and not one which was focused on any particular wrong which the plaintiff claims has been done to him. The defendants pointed to the undoubted fact that the plaintiff cannot use these proceedings as some sort of collateral or indirect attack on the decision not to award the tender to QMS. Indeed, the plaintiff made it clear that these proceedings did not comprise such a challenge, nor could they.
23. The defendants have submitted that within the proceedings there is no recognised cause of action which has been pleaded against any of the defendants in the proceedings, and that in so far as the plaintiff makes general complaint about the manner in which the accreditation scheme is operated under the Regulation, those complaints do not constitute justiciable issues. In paragraphs 23 - 26 of her judgment the trial judge summarised what she saw as being his complaints. I have already referred to the fact that the plaintiff has submitted throughout these proceedings that, as he has stated in his statement of claim “An Bord Bia as a statutory body and governed by ISO as an accredited organisation with responsibility for Quality Schemes Certification are intended to be supporting A (producers) and they are actually supporting B (markets)”. In his written submission at paragraph 93 thereof he states the following by way of expansion of this plea:
“For the assistance of the court, the consequences of the agenda being pursued by Bord Bia given the breaches described, forces smaller producers out of the market and allows larger producers involved with supply chains to buy these producers out. This results in a monopolising of the market and reduction in standards, particularly with regard to essential requirements for environmental, health and safety as evident within the poultry and beef industry, given hazardous levels of campylobacter arising as a product of these schemes/market-driven supply chains. On a point of law this is discriminatory under community law, unfair and unjust given the statutory basis of the defendants as the record on file of the matter will show. It is also evident in the “Pathways for Growth” document, which provides the roadmap for this agenda …”.
24. Having considered the complaints being raised by the plaintiff the trial judge concluded as follows:
“32. The plaintiff comes across as a man who is passionate about standards, skilled in his chosen profession, and well-informed as to the various standards of which his customers might seek to avail. This firm is an auditor, designer and trainer of producers in such standards, but neither his firm nor he himself has standing to challenge the standard when their function is secondary or ancillary to the application by the producers. Even were the plaintiff to overcome the hurdle with regard to his locus standi, it seems to me that he is bound to fail in this action which is an action in which he challenges the basis of the accreditation system and by which he could be said fairly to be seeking to, as he puts it,’ bring attention to the governing Directives, Regulations and standards in question’ and ‘to systematically and systemically identify the defendants’ fraudulent misuse and abuse by principal actors concerned’. These quotes come directly from his long form document and seems to me to constitute the root of his case, a challenge which to me has all the hallmarks of a general allegation of corruption, a political statement, an attack on Government policy, and an assertion that the system operated inhibits and restricts the market, is operated to the detriment of Irish producers and the Irish agri-food sector, and complaints about the breakdown of Irish society and the application of standards which is detrimental to consumers”.
25. Having so stated, she went on to conclude that the plaintiff had not established to her satisfaction that any of these complaints are justiciable, or that if they are, they are justiciable by him, and that the proceedings should therefore be struck out on the basis that the proceedings are bound to fail
26. The trial judge clearly directed herself correctly as to the principles to be applied on an application to strike out proceedings on the basis that they are bound to fail. She correctly identified that it was necessary to take the plaintiff’s case at its height. It is clear that she did that, and nevertheless found that the claims as stated were bound to fail. In my view she was entitled to come to that conclusion.
27. For these reasons, I would dismiss the appeal.
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