Mr Justice Eyre handed down judgment last week in R (Fold Hill Foods) v Food Standards Agency and others [2023] EWHC 2271 (Admin), a judicial review of the Food Standards Agency (FSA’s) response to an outbreak of feline Pancytopenia and associated claims for £4.5m damages for breach of its Article 1, Protocol 1 rights under the European Convention on Human Rights.
The claim for damages, on the basis the FSA’s actions constituted an unlawful interference with Fold Hill’s peaceful enjoyment of its property and possessions, was parasitic on the other grounds.
Prior to the outbreak, only about one case of Pancytopenia would be found every five years.
While the science remains unproven as to the cause of the outbreak, investigations into common ingredients suggested a particular batch of potato flakes may have raised the level of mycotoxins, a naturally occurring substance which can be dangerous for cats.
Solicitors for Fold Hill asked the FSA to make a public statement confirming that recalled feed not including the affected potato flakes were safe, and to do so as a matter of urgency given the perishable nature of the product. The FSA declined, stating its role was not to declare any recalled stock safe to sell.
Fold Hill claimed the FSA acted irrationally and unlawfully. Dismissing Fold Hill’s arguments, Eyre J held the FSA acted lawfully in issuing its ‘various updates’. Eyre J also concluded the FSA ‘did not compel the recall but instead encouraged voluntary action on the part of the claimant [which] means that it cannot be said that the recall amounted to an unlawful interference with the claimant’s peaceful enjoyment of its property and possessions’.
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