THE future of a restaurant is hanging in the balance after its owners lost a £125,000 court battle over pink burgers.
James Baldry and Piotr Mientkiewicz fought Portsmouth City Council after it forced the item off the menu at 6 oz Burgers in Osborne Road, Southsea.
This case has absolutely bled us dry completely as a business
Now after spending around £100,000 on legal fees the pair are uncertain if they can carry on at the restaurant.
James said: ‘This case has absolutely bled us dry completely as a business, and Piotr and myself personally trying to keep up with the spiralling costs.
‘What we suspect is the council will be looking to get their fees paid by us – judgement will be made by the judge.
‘We definitely can’t afford that, knowing how much our costs were.’
The case was launched when James and Piotr challenged an emergency ban on selling the burgers sought by the council last April.
The News understands the council has spent about £25,000 on the case and is now seeking to get the cash back.
Microbiologists, experts from the Food Standards Agency, council officers and the pair’s butcher and an abattoir all gave evidence in court over four days.
Now District Judge Anthony Callaway, sitting at Portsmouth Magistrates’ Court, has ruled the council was right to issue the ban.
John Buckwell, owner of the butchers Buckwells from where meat is bought, said: ‘It was bad the way they got treated. Two young guys trying to start a business up and instead of helping and giving advice, they hit them with a hammer.’
James and Piotr are considering going to the High Court to appeal. The pair had been planning to expand but the case has drained their resources.
Piotr said: ‘We were planning on opening a second restaurant. By now we could have had the money.’
James added: ‘With the business we’re going to be deciding what we’re going to be doing, firstly if we can afford to carry on trading and where we’re going to go.’
He added since opening in August last year they sold 20,000 burgers, with meat from Buckwells, also in Osborne Road.
He said: ‘We’ve done absolutely nothing wrong. Nobody became unwell.’
But Mr Callaway said the council had ‘to identify an imminent health risk before illness results, and not to await an event or complaint where someone is taken ill as a consequence and to react post such an unfortunate event.’
Richard Lee, the council’s environmental health manager, said: ‘We always try to support businesses and work with them on issues like this, so enforcement action or legal proceedings are avoided.
‘Cllr Robert New, our cabinet member for environment and community safety, arranged a meeting between environmental health officers and the company directors in an attempt to resolve the issue, but regrettably the business chose not to work with us, and went on with their legal challenge to the notice.’
‘Council was doing its duty’ says case judge
THE risk involved in serving undercooked burgers was central to the court case.
Council environment health officers handed the hygiene emergency prohibition notice to 6 oz Burgers on April 16, after watching a burger being cooked at the restaurant.
James Baldry and Piotr Mientkiewicz did not want to sign a voluntary agreement to stop selling the burgers as they wanted legal advice.
But the council issued a banning notice and had to go to court so it could get an emergency prohibition order. The restaurant owners objected to this, sparking the lengthy and expensive battle.
During the case, the judge was told by the Food Standards Agency that there is no law banning the selling of undercooked burgers but businesses need a food management system in place to make the process safe.
Giving his judgement, District Judge Anthony Callaway said little was known about the supply of the mince by the restaurateurs other than it coming from Buckwells butcher, in Southsea.
He said: ‘In short nothing was known of the food chain of which this mince was part.’
Mr Callaway added it was only after the issuing of the notice that 6 oz Burgers provided evidence of its supply chain.
The owners maintain the meat is of high quality.
The judge added: ‘It seems to me the local authority were doing no more than fulfilling their assigned duty.’
The restaurant – which remains open and is trading – could now sell pink burgers if it changes its hazard procedure, known as a HACCP, and shows inspectors their process is safe.
Richard Lee, council’s environmental health manager, said: ‘A crucial difference between a rare steak and a rare burger is that if the surface of a steak is contaminated by bacteria, they stay on the surface and are killed by proper cooking.
‘In a burger the meat is minced, so the surface part of the meat is mixed in with the rest. The Food Standards Agency’s advice to the public is that they should cook burgers until none of the meat is pink.
‘The FSA’s advice to councils is that they should take action against businesses serving undercooked meat, to protect public health.
‘The heart of this case was the absence of a proper method, which the council believed put the public at imminent risk. This is why we issued an emergency notice, banning the sale of undercooked burgers.’
The judge recognised that the selling of rare burgers is a growing trend but they are categorised as ‘risky foods’.