Pembrokeshire Holdings v Food Standards Agency: condensation, contamination risk and enforcement proportionality

The Administrative Court has dismissed an appeal by Pembrokeshire Holdings Limited, trading as Euro Farm Wales, against two food hygiene enforcement notices issued by the Food Standards Agency in respect of its Haverfordwest slaughterhouse. The judgement, handed down by Mr Justice Eyre, resolves a number of significant questions concerning the correct legal standard for establishing a breach of Regulation (EC) 852/2004 in condensation-related cases, as well as the scope of the duty of candour owed by enforcement authorities in magistrates' court proceedings.

The FSA had served both a Remedial Action Notice and a Hygiene Improvement Notice in mid-2023 following repeated observations of heavy condensation forming on ceiling fixtures, metal frames, and line rails in two chillers, with drips falling onto beef carcasses destined for human consumption. The appellant had implemented a cleaning regime and engaged engineers, but the problem persisted. The District Judge upheld both notices, and Pembrokeshire Holdings appealed by way of case stated raising eighteen questions.

Risk and the meaning of "protect against contamination"

The central legal dispute concerned whether a breach of Annex II, Chapter IX, paragraph 3 of Regulation (EC) 852/2004 — which requires food to be protected against contamination — required proof of actual contamination. The appellant contended that, since condensation is merely water and the only study on the point (Brashears et al, 2001) suggested it does not carry significant microbial loads, there was no hazard and therefore no contamination within the regulatory definitions.

Mr Justice Eyre rejected this analysis. An obligation to protect against a state of affairs is materially different from an obligation to prevent it. A failure to protect can constitute a breach even where the state of affairs — here, contamination — has not yet occurred. The judge drew support from the Divisional Court's reasoning in Kothari v London Borough of Harrow [2009] EWHC 1354 (Admin), which confirmed that these are preventative regulations and that prosecutions need not await actual compromise of food hygiene. Likewise, the obligation in Annex II, Chapter I, paragraph 2(b) — that premises be designed so as to protect against the formation of condensation — admits of a breach where layout or design fails to afford that protection, regardless of whether contamination has supervened.

The argument that cooking the meat would neutralise any risk was also dismissed. The provision in Chapter IX, paragraph 3 addresses three distinct states disjunctively: food being rendered unfit, injurious to health, or contaminated in a way that makes consumption unreasonable in that state. The final limb does not require the food to be consumed raw.

Proportionality and prior approval of the premises

The FSA had originally approved the design and construction of the premises. The appellant argued that this prior approval was incompatible with the subsequent enforcement action. The court held that approval and enforcement are distinct exercises. Approval may provide a forensic argument in resisting the factual basis for a notice, but it does not preclude enforcement where conditions in practice fall short of regulatory standards. On the facts, the appellant had been given "every opportunity" to address the problem before notices were issued.

The measures required — moving carcasses away from areas of drip, removing condensation promptly, and investigating root causes — were found to be plainly proportionate. The HIN was, however, modified in one respect: the word "prevent" was replaced with "protect against" to align the notice with the correct statutory obligation under Annex II, Chapter I, paragraph 2(b).

Duty of candour in enforcement appeals

The appellant alleged abuse of process arising from the late disclosure of additional witness statements. The court held that, whilst the FSA owed a duty of candour analogous to that owed by public bodies in judicial review proceedings, a failure of disclosure does not warrant setting aside otherwise valid notices. The appropriate response is procedural — adjournment, costs sanctions, or adverse inference — not cancellation of the notices. In any event, the District Judge had found the additional statements did not undermine the primary evidence, and the appellant had declined the opportunity to cross-examine the relevant witnesses.

Both notices are affirmed subject to the minor wording amendment to the HIN.

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