Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN, HIGHLAND and ISLANDS at ABERDEEN

 

Case Ref: B432/12	NOTE
	of
	Sheriff Marysia Lewis
	in the cause of
	NICHOLAS GLOVER, Authorised Officer, Aberdeen City Council Trading Standards and Environmental Health Business Hub 15, Level 3 South Marshall College, Broad Street, Aberdeen, B10 1AB Applicant
	against
	FRAMGORD LIMITED, Craigshaw Drive, West Tullos Industrial Estate, Aberdeen, AB12 3AN First Respondents   NOLAN SEAFOODS (UK) LIMITED, Craigshaw Drive, West Tullos Industrial Estate, Aberdeen, AB12 3AN Second Respondents and D & G NOLAN LIMITED, West Tullos Industrial Estate, Aberdeen, AB12 3AN Third Respondents

 

Act: Ms Falconer Alt: Mr Thomas

 

Aberdeen 06 November 2012

The Sheriff, having resumed consideration of the cause, finds that the food detained by the applicant by virtue of Detention of Food Notices dated 29 June 2012 and 02 July 2012 thereafter seized by him by virtue of a Food Condemnation Warning Notice dated 19 July 2012, all of which food is identified in said Notices and also in the seizure log (No. 17/2/2 of Process), fails to comply with food safety requirements, and accordingly condemns the food and orders that the food to be destroyed or to be so disposed of as to prevent it from being used for human consumption all in terms of section 9(6) of the Food Safety Act 1990; meantime reserves the question of expenses of the debate and appoints parties to be heard thereon at 9.30 am on 3 December 2012.

 

 

NOTE

1. Introduction

1.1 This is a summary application in which the applicant has applied to the Court under section 9(6) of the Food Safety Act 1990 ("the Act") for an order that 206 pallets of frozen salmon by-product ("the food"), currently held in a cold store operated by the third respondents at Craigshaw Drive, West Tullos Industrial Estate, Aberdeen, be condemned and thereafter destroyed or otherwise disposed of as to prevent it from being used for human consumption. The application was initially opposed by all three respondents. The first respondents are traders in fish. They own the food. The second respondents are fish processors. The first and second respondents have a trading relationship. At the commencement of these proceedings, 66 of the pallets of the food had been sold by the second respondents to the first respondents. Payment had not been made and the second respondents were claiming retention of title. That matter has now been resolved following which the second and third respondents intimated that they would take no further part in the proceedings, other than to address the court on the matter of expenses. In the course of this Note I make reference to a company called SCAF Limited - it has not opposed the application.

 

2. The proof

2.1 In advance of the proof, I suggested that the first respondents and the applicant lodge affidavits of their respective witnesses and that the affidavits be used as evidence in chief, with parties cross-examining and re-examining witnesses as appropriate. Ms Falconer, on behalf of the applicant, lodged an affidavit for each her witnesses, namely Nicholas Michael Glover, Iain George Dempster and Andrew Morrison. Mr Thomas, on behalf of the first respondents, lodged an affidavit of Francis William Johnson.

 

2.2 In a highly unusual step, on the eve of and confirmed on the morning of the proof (23 October 2012), Mr Thomas intimated that he had been instructed by the first respondents not to lead any evidence, cross-examine any witness or make any oral submissions as his clients were no longer able to fund representation. They maintained opposition to the application and sought to rest on their pleadings, their productions, and the affidavit of Mr Johnson. Notwithstanding that Ms Falconer was being denied the opportunity of cross-examining Mr Johnson, she was content to proceed with the proof albeit in a somewhat truncated form. Her witnesses, Mr Glover, Mr Dempster and Mr Morrison were present. Even although they were no longer required for cross-examination, I placed Mr Glover and Mr Dempster on oath and asked them several questions to clarify certain observations made in their respective affidavits. At the conclusion of the evidence, Ms Falconer lodged a written submission. I am grateful to her for doing so. I have not repeated the terms of the affidavits or the submissions in this Note as they form part of the Process.

 

2.3 In the preliminary stages of this application, parties had prepared and lodged a joint note of disputed issues in fact and in law (No. 16 of Process). I was not invited by Mr Thomas to make any findings arising from that joint note. Ms Falconer, in the course of her submission, invited me to make findings in respect of a limited number of the legal issues. Regrettably I have been rather hindered in this task for the legal issues are predicated on some disputed facts. Mr Johnson's affidavit does not adequately cover many of the disputed factual issues. I have therefore endeavoured to address what I believe to be the issues which go to the heart of this dispute, based on the material before me.

 

3. The facts

3.1 At Craigshaw Drive, West Tullos Industrial Estate, there is a large industrial facility which housed 3 separate entities - two fish processors and the operators of a cold store. SCAF Limited ("SCAF") occupied the middle unit which contained a processing plant and an office. On one side of the SCAF unit was a cold store. On the other side of SCAF was a unit occupied by the second respondents, who also operated a processing business. SCAF was involved in the processing of salmon and salmon by-products. Francis William Johnson is a director of and shareholder in SCAF. Mr Johnson is also the managing director and sole shareholder in Framgord Limited (the first respondents). The first respondents are traders in salmon and salmon by-products. They, along with others, have pioneered and developed a market for the processing and sale of salmon by-product.

 

3.2 Following the introduction of the Food Hygiene (Scotland) Regulations 2006 all food business operators involved in the production, processing and distribution of food had to apply for registration and approval. On or about 03 April 2007 SCAF applied to Aberdeen City Council under Regulation (EC) 853/2004 for approval of their food business establishment. Approval code UK AA 142 EC was granted on 11 July 2007 authorising SCAF to handle fishery products in their establishment. Notification was issued on 08 August 2007 (No. 5/1/1 of process) attached to which is a plan of the part of the premises from which SCAF was to be operating (No. 5/1/1 of Process, page 4). On or about 11 September 2006 the second respondents applied to Aberdeen City Council under Regulation (EC) 853/2004 for approval of their food business establishment. Approval code UK AA 107 EC was granted on 12 July 2007 authorising SCAF amoungst other things to handle fishery products in their establishment. Notification was issued on 28 August 2007 (No. 5/2/1 of process), attached to which is a plan of the part of the premises from which the second respondents were to be operating (No. 5/2/1 of Process, pages 14 & 15).

 

3.3 It appears that during August to October 2011 the facility underwent refurbishment (Affidavit of Mr Dempster, paras 5 & 6). The current layout of the facility can be seen in a plan (No. 26/4/4 of Process). Mr Glover provided a further plan (No. 5/1/8 of Process) which is of the current layout but the boundaries of the old SCAF unit are marked in yellow thereon. There is no consensus in the pleadings or the affidavits on who occupied the refurbished facility between 01 November 2011 and July 2012. Mr Johnson states in his affidavit (para 8) that "In or about April 2011 the two separate operations of Nolan Seafood UK Ltd and SCAF Ltd which both operate from the premises in Craigshaw Drive, Aberdeen were unified. This resulted in all SCAF employees working in the site becoming Nolan's employees."). He makes reference to the employees carrying out the processing work for SCAF under "an agency style agreement". No such agreement has been produced and indeed the other respondents make no mention of this. The first respondents plead that "the by-products purchased by the first respondents are processed either by the second respondents or by SCAF Limited who through an agency agreement with the second respondents operate a process line at Craigshaw Drive... The process line operated by SCAF Limited is managed and operated by employees of the second respondents, each of whom were former employees of SCAF." In contrast, the second and third respondents plead that "From 1^st November 2011 or thereabouts the second respondents took over the processing business previously carried on by SCAF Ltd. The employees of SCAF Ltd transferred to the second respondents. The second respondents took over the supply of product to SCAF Ltd's former customers including the first respondents. The second respondents carried on business within the space at Craigshaw Drive, Aberdeen formerly occupied by SCAF Ltd."

3.4 What is clear from the oral evidence of Mr Glover and Mr Dempster is that SCAF did not give any intimation to Aberdeen City Council that it had unified with second respondents or that it had entered into an agency arrangement with the second respondents relative to the business operation at the facility or that there had been a transfer of undertakings or that the second respondents had taken over the SACF business.

 

3.5 There does not appear to be any dispute about the processing of the salmon. When the salmon is being processed, the by-product is separated from the salmon, placed into cartons and then frozen. The by-product includes heads, frames, trimmings and belly flaps. The cartons are placed on pallets and shrink wrapped. At the end of the process line, each carton is numbered with an approval number. The pallets are placed in a cold store prior to delivery or export. Failings in the systems followed by SCAF, the first and second respondents in regard to the application of approval numbers to the appropriate product has led to the current application.

 

3.6 The parties appear to be at complete odds with each other in regard to who, if anyone, had authority to use identification mark UK AA 142 EC from 01 November 2011 to July 2012, and in what circumstances the mark could be applied during that period. For example the second respondents aver that the identification mark UK AA 142 EC was applied in error by staff of the second respondents (Answers 9 & 10). They also aver that the first respondents removed identification mark UK AA 107 EC which had been correctly applied by the second respondents to some product, and applied their own identification mark UK AA 142 EC to that product (Answer 11). Mr Glover, in the course of his investigations, took statements from Mr Johnson, Jo Ackers, George Nolan and Derek Hutchins of the second respondents and Alex Young of the third respondents, as well as Jesus Gallego of the Scottish Government and Andrew Miller, a veterinary surgeon (Nos. 5/1/9 &5/1/12 of Process). He refers to this part of his investigation in his affidavit (paras 16, 28-31, 33-35, 37-41, 42-45). The descriptions given by Mr Johnson, Jo Ackers, George Nolan and Alex Young of the labelling process generally, the labelling of product intended for export and the labelling of product intended for the Russian market are contradictory.

 

3.7 The Russian market offers extensive business opportunities to food business operators. The regime for exporting food product to Russia is strictly controlled. The means by which a food processing business based in the UK can obtain approval to export to Russia is set out in a statement by Jesus Gallego (No. 5/1/12 of Process). This includes the auditing of the premises. The premises must comply with Russian standards. The Russian authorities must confirm their approval for export, following a request from the UK Chief Veterinary Officer. All consignments of food product destined for Russia must be certified by a veterinary surgeon appointed by DEFRA as an Official Veterinarian. In April 2009 SCAF was approved by the Russian authorities to export their product to Russia. The second respondents have not been so approved to export food product to Russia. During the investigation, Mr Glover discovered that food product bearing the identification mark UK AA 142 EC, the origin of the product being stated as SCAF, and the date of production as April 2012 had been exported to Russia. His findings are set out in his affidavit (pages 10-12).

 

3.8 Since November 2011 environmental health officers of Aberdeen City Council and representatives of SCAF and the first and second respondents have been in communication about the use of the approval numbers and traceability of some of the food (Nos. 5/1/5, 5/1/6, 5/1/11, and 5/1/15 of Process). On 26, 27, 28 and 29 June 2012 the applicant along with other environmental health officers of Aberdeen City Council attended at the premises to inspect various consignments of the food under section 9(1) of the Act. At the commencement of the inspection of food held in the cold store, the third respondents provided the officers with a Store Goods Report of stock owned by the first respondents (No. 5/1/7 and 8/1/1 of Process). The officers checked the stock against the Store Goods Report. That exercise was carried out over a 3 day period. It revealed that 217 pallets of the food either had no identification mark or carried the identification mark UK AA 142 EC.

 

3.9 On completion of the inspection, the applicant served a Notice on the respondents and on SCAF under regulation 27 of the Food Hygiene (Scotland) Regulations 2006, certifying that that the food had not been appropriately health marked in accordance with EC Regulation 853/2004 and should therefore be treated for the purposes of section 9 of the Act as failing to comply with food safety requirements. The applicant also served a Detention of Food Notice (No. 5/1/10 of Process) on the respondents and on SCAF in terms of section 9(3)(b) of the Act.

 

3.10 Section 9(5) provides that where an authorised officer exercises the powers conferred by section 9(3)(b) of the Act he shall inform the person in charge of the food of his intention to apply to the court for the food to be condemned. On 19 July 2012 the applicant, who is an authorised officer, gave such notice by serving Food Condemnation Warning Notices (Nos. 2, 3 & 18 of Process) on each of the respondents under section 9(5) of the Act in which he intimated that it was his intention to apply to the court for the food to be condemned because the food had not been appropriately marked in accordance with Regulation EC 853/2004. Following service of that Notice, the applicant seized 206 pallets of frozen food from the cold store operated by the third respondents. The food is detailed in D & G Nolan Ltd Store Goods Report dated 27 June 2011 and in the seizure log (No. 17/2/2 of Process).

 

4. Statutory framework

4.1 The statutory framework within which this dispute arises is complex. The law relating to food is contained in many pieces of UK legislation and is supplemented or expanded upon by EC Regulations, UK Regulations and Scottish Regulations which in part place certain obligations on those who are involved in carrying out activities related to any stage of the production, processing and distribution of food. Within the Regulations there are numerous definitions, cross-references and repetitions.

 

4.2 The extent of the courts powers to deal with an application of this type are set out in section 9(6) of the Act which says that if it appears to a Sheriff, on the basis of such evidence as he considers appropriate in the circumstances, that any food falling to be dealt with by him under this section fails to comply with food safety requirements, he shall condemn the food and order

(a)   the food to be destroyed or to be so disposed of as to prevent it from being used for human consumption; and

(b)   any expenses reasonably incurred in connection with the destruction or disposal to be defrayed by the owner of the food. .

In terms of regulation 27 of the Food Hygiene (Scotland) Regulations 2006, on an inspection of any food, an authorised officer of an enforcement authority may certify that it has not been produced, processed or distributed in compliance with the Hygiene Regulations. Such certification results in the food being treated for the purposes of section 9 of the Food Safety Act 1990 as failing to comply with food safety requirements. The food of animal origin in this case, being salmon parts, has been so certified by Mr Glover, an authorised officer of the Food Authority for this purpose. I determined, following a debate, that an inspection under section 9(1) of the Act having been undertaken and the food having been certified as not having been produced, processed or distributed in compliance with the Hygiene Regulations, it falls to be treated as failing to comply with the safety requirements, and accordingly subsections (3) to (9) of section 9 of the Act apply.

 

4.3 In regulation 2 of the 2006 Regulations, 'hygiene regulations' means the 2006 regulations themselves and the Community regulations including therefore EC Regulations 178/2002, 852/2004; 853/2004 and 854/2004 which lay down general and specific rules and principles about food safety law within the European Community and also concerning trade with third countries and trading partners.

 

4.4 The EC Regulations direct the registration of food business operators. The starting point is contained within Regulation (EC) 852/2004. Article 6(2) provides:-

"Every food business operator shall notify the appropriate competent authority, in the manner that the latter require, of each establishment under his control that carries out any of the stages of production, processing and distribution of food, with a view to the registration of each such establishment."

That same article specifies that a food business operator is required to notify the competent authority of any significant change in its activities or any closure of an existing establishment.

 

4.5 The definition of some of the words and phrases used in Article 6(2) are to be found in Regulation (EC) 178/2002 which applies the definitions and lays down the general principles and requirements of food law. The definition of "an establishment" is "any unit of a food business (Article 2(1)(c) of 178/2002). A "food business" is "any undertaking, whether for profit or not and whether public or private, carrying out any activities related to the stage of production, processing and distribution of food" (Article 3 of 178/2002) and a "food business operator" is "the natural or legal persons responsible for ensuring that the requirements of food law are met within the food business under their control." The stages of production, processing and distribution means "any stage including import, from and including the primary production of a food up to and including its storage, transport, sale or supply to the final consumer (Article 3(16) of 178/2002).

 

4.6 Regulation (EC) 853/2004 reinforces the need for registration of establishments. Article 4 thereof says that "food business operators shall place products of animal origin manufactured in the community on the market only if they have been prepared and handled exclusively in establishments that have been registered or approved." Article 5 deals with the mandatory application of an identification mark to product of animal origin and in short says that food business operators may apply an identification mark to a product of animal origin only if the product has been manufactured in accordance with the Regulation in establishments meeting the requirements of Article 4. The identification mark must be applied before the product leaves the establishment and the mark must indicate the approval number of the establishment (Annex II, Section 1, paras 1 & 7).

 

5. Decision

5.1 It is not in dispute that SCAF and the second respondents are food business operators within the meaning of Article 3 of 178/2002. It is not in dispute that SACF was approved to operate an establishment by the Food Authority and was allocated approval code UK AA 142 EC and that the second respondents were approved to operate an establishment by the Food Authority and were allocated approval code UK AA 107 EC. The approval documents set out the scope of the permitted activities to be carried out within specified premises.

 

5.2 One area of contention between the parties is the distinction between "premises" and "an establishment". An establishment is defined as a unit of a food business (article 2(c) of EC Regulation 852/2004). It is not, as suggested by the first respondent, limited to the premises. Mr Glover and Mr Morrison described an establishment as being a combination of the food business operator, the building in which he operates and the activity which is authorised. A similar view was expressed by Mr Justice Cranston in Allan Rich Seafood v Lincoln Magistrates Court [2009] EWHC 3391 (Admin) -

"Read in the context of legal instruments designed to further food safety, and which places obligations on food business operators, establishments must mean something more than premises. An assessment merely of the suitability of the premises would not fulfil the food safety purpose of the EC Regulations. In my view establishment denotes both the premises and the manner in which those premises are being used by the food business operator. Thus approval is required tor a food business or a unit of a food business and is not merely for the premises from which the business is conducted."

I fully endorse that approach and accordingly agree with Ms Falconer that the establishment which was approved to use identification mark UK AA 142 EC was SCAF, to carry out the activities specified in their approval document in the premises they occupied at the time of the approval.

 

5.3 The cold store operated by the third respondents, from which the food was eventually seized, is a distinct unit. In my view, it did not and does not form part of either the SCAF or the second respondents' approved establishment. The third respondents require approval in their own right.

 

5.4 Based on the pleadings of the second respondent and the affidavits of Mr Glover and Mr Dempster I am satisfied that by 01 November 2011 SCAF had ceased to carry out the activities from their premises within the scope of their approval document and that the second respondents had taken over the customer base of SCAF and were carrying on business from the area within the facility previously occupied by SCAF. Further, the layout of the whole facility had been altered during renovations. There is no evidence before me to allow me to conclude that the SACF approval had been transferred to the second respondent. Mr Glover and Mr Dempster advised me in evidence that the Food Authority had not been advised of any change in the business operations of SCAF. They had received no request for a transfer of the SCAF approval. In any event, I was not directed to any regulations which would permit such a transfer. I am of the view that an approval cannot be transferred from one food business operator to another and find myself agreeing with the observations of Mr Justice Cranston in Allan Rich Seafood v Lincoln Magistrates Court [2009] EWHC 3391 (Admin) at para 47 -

"That an approval cannot be transferred accords with the legislative purpose and the clear intention to place obligations on food business operators".

That being so, only SCAF was entitled to apply identification mark UK AA 142 EC to food which it had processed in accordance with article 5 of Regulation 853/2004 in an approved establishment meeting the requirements of article 4. The second respondents ought not to have applied identification mark UK AA 142 EC to food which had been processed by them. They had no right to use that mark.

 

5.5 The first respondents aver (Answer 8) that Aberdeen City Council failed to competently recall UK AA 142 EC under Article 9 of Regulation (EC) Number 854/2004. They seem to be implying that SCAF was entitled to use the identification mark UK AA 142 EC until such time as it is suspended or withdrawn in accordance with Article 9. That argument is misconceived. Article 9 is concerned with non-compliance with "regulations referred to in articles 4(2)(a) and (b)" and sets out the actions which can be taken by a Food Authority to ensure compliance such as monitoring, imposition of sanitary procedures, the suspension of operations or the suspension of the establishment's approval. There are no averments identifying any form of non-compliance with any regulation such as would result in action being taken by the Food Authority. By 01 November 2011 SCAF was no longer operating from the facility in Craigshaw Drive. The purpose of article 9 is not to coax or cajole or force a food business operator back into business - it is to ensure compliance with regulations. There was no situation to remedy or rectify.

 

5.6 The first respondents also promote an argument that the identification mark had not lapsed and was effective until at least 20 June 2012 because SCAF remained on a list of approved Food Business Operators maintained by the Food Standards Agency. Whilst best practice would dictate that such a list ought to be kept up to date, that is not a determinative factor in establishing whether an approval has lapsed or not. The list does not sanction food business operators to use a number which they have no right to use. SCAF lost the right to use that identification mark by 01 November 2011.

 

5.7 Turning now to the vexed question of SCAF being permitted to use identification mark UK AA 142 EC for export of the food, I prefer the evidence of the Mr Dempster and hold that Mr Dempster agreed to the continued use of identification mark UK AA 142 EC for stock intended for export and which had been produced or processed by SCAF prior to 01 November 2011. I do not accept that Mr Dempster mislead Mr Johnson about the circumstances in which this identification mark could be used.

 

5.8 It is accepted by all parties to this action that traceability is at the heart of food safety law. The first respondents have repeatedly expressed the view that all of the food is fully traceable, for the cartons of food which bear the identification mark UK AA 142 EC were correctly labelled having been processed by former SCAF employees on the SCAF process line and those cartons which bore no identification mark can be traced by virtue of the batch or pallet number. Regrettably that is not sufficient to meet the strict requirements under the various regulations. It is not clear to me from the affidavit of Mr Johnson or the pleadings for the respondents or their productions why either the first or the second respondents should have used identification mark UK AA 142 EC which relates to the approved establishment of SCAF or why SCAF used this mark, having transferred staff and customers to the second respondents. At the risk of repeating myself, by 01 November 2011 the second respondents had taken over the business operation of SCAF. Identification mark UK AA 142 EC is not transferable and indeed was not transferred to the second respondents.

 

5.9 I accept that the Russian market offers extensive business opportunities to food business operators. The regime for exporting food product to Russia is strictly controlled and is subject to approval of the processing establishment. SCAF was approved by the Russian authorities to export their product to Russia. The second respondent did not have such an approval. By 01 November 2011 SCAF had lost the right to use identification mark UK AA 142 EC and should not, after that date, have been exporting food product to Russia bearing that mark - and yet it did so. The findings of Mr Glover (affidavit, paras 32-36) and Mr Morrison (affidavit, para 61) are quite disturbing in regard to the extent of this practice and the quantity of food produced by others and exported to Russia bearing the SCAF identification mark.

 

5.10 I do not accept the contention of the first respondents that SCAF was operating a re-wrapping centre from its old unit within the facility. This runs counter to the averments of the second respondent and the evidence on behalf of the applicant. The Food Authority has no record of SCAF making application for and being granted approval to operate a re-wrapping centre from the facility.

 

5.11 I do not accept the contention of the first respondents that a system for tracing food through the use of pallet numbers is satisfactory. The starting point for tracing the food being processed through the facility is the use of an approved identification mark. That mark is internationally recognised and identifies the provenance of the product. In a letter of 03 September 2012 (No 26/4/2 of Process) from Aberdeen City Council to the solicitors acting for the first respondents and in a letter of 04 September 2012 No 26/4/3 of Process) from Aberdeen City Council to the solicitors acting for the second respondents, the author provides an analysis of the "pallet system" utilised at the facility and the many deficiencies with such a system are set out in stark detail. I prefer the evidence presented on behalf of the applicant to that presented for the respondents.

 

5.12 A number of the cartons of food seized bore no identification mark. Again an explanation for this is given by Mr Johnson but I do not accept it. Traceability of the food is essential. Handling and processing food which is unmarked leads to a break in the chain of traceability. The matter does not rest there for there is evidence of tampering with the labels of suppliers. An explanation has been given for this conduct - that does not excuse it. Such interference has caused a break in the chain of traceability. Quite simply this food has not been produced, processed or distributed in accordance with the regulations which clearly state that the food should not leave the establishment without the appropriate identification mark (Regulation (EC) 853/2004, Annex II, Section 1, paras 1 & 7).

 

5.13 Given the failure of the first respondents to actively participate at the proof, the considerable lack of detail in the affidavit of Mr Johnson and the withdrawal of the second and third respondents from further procedure, I am not in a position to making any findings in regard to the factual issues numbers 4-13 inclusive in the joint note of disputed issues (No 16 of Process).

5.14 For the above reasons, I prefer the arguments of the applicant. I am satisfied on the basis of the affidavits, productions, reports and submissions, that the food fails to meet the food safety requirements in that it has not been produced, processed or distributed in accordance with the hygiene regulations as so certified by the authorised officer. Accordingly by virtue of my powers under section 9(6) of the Act I condemn the food. Having done so I am required either to order destruction of the food or that it "be so disposed of as to prevent it from being used for human consumption".

 

5.15 I was urged by Mr Thomas at the commencement of the proof and in a subsequent exchange of emails to adopt the latter course and permit the first respondents the opportunity to sell the food for animal feed thus reducing their exposure to further losses and costs. On the day of the proof, neither Mr Thomas nor Ms Falconer was in a position to address me on comparative costs of adopting either outcome. I gave them the opportunity to explore that further. The information which has since been passed to me is not entirely satisfactory and certainly not sufficient to allow me to make a specific order in regard to a means of disposal alternative to destruction. Ms Falconer is content that I make an order following the wording in the Act, and has given me a clear indication that the Council is mindful of its duty to minimise loss and therefore will adopt the most pragmatic and cost effective means of implementing the order of the court.

 

Expenses

5.16 I have reserved the question of expenses and there will be a hearing thereon in due course. Mr Macdonald for the second and third respondents wishes to take part in any such hearing and I instruct the sheriff clerk to give due intimation to him.