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05 January 2021

Winning against the odds; or how not to butcher your chances

The view that a lawyer’s role is to know the law whilst the client understands his business is long out of date. It is widely accepted that the modern lawyer should understand the industry he advises on. The benefits of this approach flow deep: a lawyer with a complete understanding of their client’s business can tailor their legal advice to the client’s commercial needs, helping the client to succeed in a an endless array of business goals. Perhaps less obvious, however, are the benefits to be gained in litigation from the lawyer’s commercial knowledge. But not only are there benefits, the willingness of the litigation lawyer to understand the detail of his client’s industry can be the critical distinguishing factor that determines success in a dispute.

This is illustrated plainly in R (on the application of Newby Foods Limited) v Food Standards Agency [2016] EWHC 408 (Admin). But first, a little industry background…

Food is a politically sensitive subject and the spectre of BSE continues to overshadow the place of Britain in the European meat market. It was therefore not surprising, when the European Commission declared that ‘de-sinewed meat’ (DSM) must be labelled as ‘mechanically separated meat’ (MSM) and that it presented a risk to public health when obtained from cattle, that the Food Standards Agency responded by issuing updated guidance to the industry on the same terms. DSM production from cattle was to be halted and production from poultry could no longer be sold as ‘fresh meat’.

The cost implications to the industry were huge. Fresh meat is popular and commands a high price. MSM is cheap, poor quality and widely avoided by a public enlightened by Jamie Oliver’s campaign against the ‘Turkey Twizzler’.

It was therefore also not a huge surprise when this new guidance was subject to judicial review in Newby. Questions were referred by the High Court to the Court of Justice of the European Union (CJEU) about the various definitions of fresh meat, meat preparations and MSM as set out in EC Regulation 853 / 2004, in order to determine exactly what DSM was. The CJEU responded with a judgment that clarified in no uncertain terms that DSM must be labelled as MSM.

In fact, it was so unequivocal, it stated that the Regulation:

‘must be interpreted as meaning that the product … must be classified as “mechanically separated meat”‘.

It was therefore quite unexpected when the High Court handed down a judgment that DSM was, in fact, fresh meat and should be labelled as such.

The case was appealed to the Court of Appeal and then the Supreme Court for final determination, where a unanimous judgment was handed down by five Justices in April 2019 that salvaged the dignity of sausages. Whilst this case does help us to understand exactly what is in our food, its true value is in what it can teach us about effective advocacy, the importance of understanding the real-world processes that are governed by the law, and how technological innovation presents parallel opportunities for innovative legal interpretation.

In reading the questions posed by the High Court to the CJEU, they lead towards a conclusion that DSM is, probably, MSM and the CJEU duly found in that way, see above. So what caused Edwards-Stuart J’s change of heart? Perhaps he was simply worn down by the number of applications made by the Claimant. The main decision in this case was the ninth judgment. A previous decision opens ‘This is, I think, the seventh judgment in this case’, and reads in a weary tone despite (or perhaps because) the Claimant sought a declaration that the European Commission was in contempt of the English Court.

More likely, however, is the simple expedient of being persuaded that maybe, just maybe, the Claimant’s position was correct and there was a small but ever present exception in the law to be carved out for their novel and innovative industrial process.

That is the value of effective advocacy. Where Counsel understands the real-world, physical processes at the heart of the dispute to such a nuanced and complete degree that he can spin the law into a plausible yarn against all the odds and succeed. Were this case not being fought against the deep pockets of Government, the High Court judgment could well have been the end of the matter.

And this is not to denigrate the Food Standards Agency’s position. It is always difficult to argue a point of law that appears obvious: the argument is simply ‘this is what it says, that is all there is to it’. It was also not unreasonable to believe, after the CJEU issued their judgment, that the case was cut and dried. But litigation is never straightforward, especially where technology has outpaced the legal framework that governs it. The lawyers for Newby were awake to the potential for new legal argument, borne from the same technological innovation that was at the heart of the dispute. They took the time to understand the industry in detail and, by doing so, were able to identify the factual nuances on which to base their legal argument, succeeding against all the odds.

The lesson to be learnt from Newby is this: commercial success in the face of what appears to be a contrary black and white legal position is directly tied to the willingness of the legal representative to put the time in to properly understand the subject matter.

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