After further discussion, eventually the following key points were agreed in principle to go into a "Heads of Agreement" document, to be drawn up by AL and circulated by 1st October 2003:
- On signature of the Heads of Agreement ANN to send a cheque for £25k payable to Irwin Mitchell Client account for use in the legal challenge and drawn down against a prior agreed budget
- On receipt of cheque AL to present it for special clearance and on receipt of cleared funds to release to DH via e-mail and courier full details of NAHS legal case
- A further £25k is to be paid by ANH in 5 staged payments of a minimum of £5k per month (Oct-Feb) but this would be expedited if legal costs were incurred earlier than expected
- All parties will use reasonable endeavours to progress the best possible case and to raise funds for the legal action. All funds raised for the legal action will be passed directly to the Irwin Mitchell client account
- In relation to the structure of the joint organisation, each of the three organisations will have one vote and majority voting will apply to all decisions except decisions which involve incurring or payment of costs and instruction of solicitors/barristers.
- The organisations will meet regularly to discuss technical details with the first meeting to be arranged as soon as possible after the Heads of Agreement has been signed
The final issue discussed was to get a view from AL on timing (noting that NAHS had consistently mentioned end of Oct as the final filing date for a legal challenge to the FSD).
- The "safest timing" was that indicated by David Anderson QC, with 11 Oct 2003 being the theoretical latest date for filing. He then went on to offer two alternative views:
- Using the latest date for transposition given in the Directive of 31st July, would make the latest date for filing 3 months later which is 31st Oct 2003.
- One could argue that timing starts on 1 August 2005, the date the SI transposing the Directive "comes in to force."
DH commented that ANH was still considering the matter of when time begins to run in some detail with Counsel.
Whilst the general view was that stated in David Anderson's Opinion there was an argument that as the SI "became effective as an instrument" the day it was "made" (and therefore required to be revoked by another SI should Parliament lay a successful prayer against it) then time would begin to run from then, in which case the last day for filing within time would
be circa 9th / 10th August 2003.
However against this view was R v HM Customs & Exercise ex parte Eurotunnel Plc (Lawtel transcript 17.02.95) which may assist as on appeal, the Administrative Court left open the possibility (without deciding the point) that time should only run from the date of the "coming into force" of the SI's which transposed the relevant Directives in that case. In that case the last date for filing would be within 3 months of 1st August 2005.
David C. Hinde LLb
Alliance for Natural Health
2nd October 2003
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