O'Donoghue v Laois County Council
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 31 July 2020 |
| Neutral Citation | [2020] IEHC 424 |
| Docket Number | [2019 No. 822 J.R.] |
| Court | High Court |
| Date | 31 July 2020 |
[2020] IEHC 424
Barr J.
[2019 No. 822 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Detention of an animal – Declaratory relief – Applicant seeking judicial review of the respondent’s decision to impound a horse belonging to him – Whether the respondent acted unlawfully and unfairly in impounding the horse
Facts: The applicant, Mr O'Donoghue, applied to the High Court seeking judicial review of the decision of the respondent, Laois County Council, to impound a horse belonging to him. He sought the return of his horse and challenged the right of the respondent to demand payment of certain costs and fees by him, before they would return the horse to him. The applicant averred that the respondent acted unlawfully and in excess of its jurisdiction by refusing to return the horse. It was further averred that the respondent acted unlawfully and unfairly in impounding the horse, and in demanding payment for the return of the horse following a road traffic accident, which occurred due to no fault on the part of the applicant.
Held by Barr J that the detention of an animal, the property of a private citizen, is a draconian measure, but the court was satisfied that it was a necessary measure to be carried out by a local authority in line with the relevant legislation. Further, the court was satisfied that at all times the respondent dealt fairly and respectfully with the applicant, who was entitled to the safe return of the horse, upon the discharge of the fees duly levied by the respondent. The court was satisfied that it was reasonable and lawful for the respondent to impound the horse and, furthermore, it was intra vires the respondent to demand the fees levied by them.
Barr J held that the reliefs sought by the applicant would be refused.
Reliefs refused.
The applicant in these proceedings is seeking judicial review of the respondent's decision to impound a horse belonging to him. He seeks the return of his horse and challenges the right of the respondent to demand payment of certain costs and fees by him, before they will return the horse to him.
The reliefs sought by the applicant are set out in the statement of grounds dated 18th November, 2019, as follows:-
i) Interim relief pursuant to Order 84, rule 20(7) prohibiting the respondent from taking any further steps to dispose of, or destroy, the horse seized from the applicant on the 30th October, 2019 pending trial of the action in the High Court;
ii) Order of mandamus compelling the respondent to return the horse to the applicant;
iii) A Declaration by way of judicial review that the respondent's intention to dispose of the horse, which was communicated to the applicant's solicitor on the 15th November, 2019, was unlawful and/or made outside of the respondent's jurisdiction;
iv) A Declaration by way of judicial review that the respondent's request to pay the sum of €1,200.00 was not properly made;
v) A Declaration by way of an application for judicial review that the actions of the respondent in impounding the applicant's horse is unreasonable having regard to all of the circumstance of the case and is unsustainable in law;
vi) A Declaration by way of application for judicial review that the First Named Respondent acted ultra vires in making by-laws, namely, Laois County Council By-Laws made under the Control of Horses Act 1996 on the 25th June 2012, in so far as the said by-laws contain no provision whereby the applicant can challenge the amount requested by the respondent and/or any right of appeal to an independent tribunal;
vii) Liberty to file further affidavits;
viii) If necessary, liberty to serve such other parties as this Honourable Court may so direct;
ix) Further or other Orders as this Court may deem necessary;
x) Costs.
As a brief synopsis of the background giving rise to these proceedings, the following factual matrix has been set out in the affidavit of Ms. Emer McDermott, solicitor for the applicant, dated 18th November, 2019: Mr. Simon O'Donoghue, the applicant in these proceedings, is the owner of a horse by the name of ‘Braveheart’. On 30th October, 2019, while out trotting on his sulky with this horse, on the Ballyfin Road, Portlaoise, the applicant was involved in a road traffic accident with an unknown vehicle. As a result of this accident, the applicant fell from the sulky and became unconscious. This resulted in the said horse no longer being under his control. The applicant was taken to Tullamore General Hospital by ambulance. It later transpired that members of an Garda Síochána contacted Laois County Council, the respondent in these proceedings, with a view to impounding the horse following the accident.
On 2nd November, 2019 the applicant contacted the respondent with a view to retrieving his horse, but he was informed over the phone that he must first pay fees in the sum of €1,200.00 before the horse could be returned to him.
On 11th November, 2019, the applicant's solicitor sent an email to the respondent seeking detailed particulars as to the circumstances of the detention of the horse. The applicant received no response. The email stated as follows:-
‘Dear Sir/Madam,
We act for Mr. Simon O'Donoghue. Please find attached assigned authority from Mr. O'Donoghue.
Mr. O'Donoghue has I believe been in contact with you in this regard.
I would be grateful if you could provide further detailed particulars as to the circumstances as to the detention of Mr. O'Donoghue's horse.
In the event that you propose to dispose of Mr. O'Donoghue's horse, we respectfully request that you stay any such disposal to allow representations to be made on Mr. O'Donoghue's behalf, pursuant to, Section 3 of the European Human Rights Act 2003; Article 40 of the Irish Constitution and Article 6 European Convention on Human Rights.
Yours faithfully,
Michael Byrne
On 15th November, 2019, the applicant's solicitor sent another email to the respondent, indicating that they believed that the seizure of the horse was unlawful and called for its immediate release. This email further stipulated that if the horse was not released by 22nd November, 2019, the applicant would initiate legal proceedings.
An email was received by the applicant shortly thereafter on 15th November, 2019. It contained a link to the relevant bye-laws and stipulated that the respondent would be arranging to have the horse disposed of, should the appropriate payment not be made. This email stated as follows:-
‘Michael,
Below is a link is to the Control of Horses Bye Laws adopted by Laois County Council in June 2012 and it is under these Bye Laws that the horse was seized. We will arrange for the disposal of the horse after close of our cash office on Monday 18th November 2019 (i.e. 3:30 pm) if the appropriate fee to reclaim the horse is not made.
https://www.laois.ie/wp-content/uploads/ByeLaws.pdf
Yours sincerely,
Louise McEvoy’
The applicant then initiated legal proceedings. Leave to apply by way of an application for judicial review, in the terms as set out in the Statement of Grounds above, was granted by Hyland J. by order dated 19th December, 2019.
The applicant averred that the respondent acted unlawfully and in excess of it's jurisdiction by refusing to return the horse. It is further averred that the respondent acted unlawfully and unfairly in impounding the horse, and in demanding payment for the return of the horse following a road traffic accident, which occurred due to no fault on the part of the applicant.
It was stated that the fee demanded by the respondent was claimed unlawfully and/or in excess of it's jurisdiction. It was further stated that the proposed disposal of the horse, which was communicated to the applicant's solicitor on 15th November, 2019, was unlawful and/or made in excess of the respondent's jurisdiction.
The applicant swore an affidavit dated 25th November, 2015, where it was stated that he was the owner of the horse named ‘Braveheart,’ which was impounded by the respondent. He stated that he had purchased the horse approximately 12 months before the date of seizure for €3000.00.
In his affidavit, the applicant set out various other events that occurred prior the accident that took place on 30th October, 2019. On 17th September, 2019, the applicant had left the horse in a gated field located near the industrial estate in Portlaoise, County Laois.
The following day, the applicant discovered that the horse had gone missing and he reported this the gardaí. On 19th September, 2019, the applicant was contacted by Laois County Council, who had found the horse, and they informed the applicant that he had to pay a sum of €1040.00 in order to get the horse back. The applicant subsequently paid this sum and the horse was returned to him.
The horse was impounded for a second time following the accident that occurred on the Ballyfin Road, on 30th October, 2019, as outlined above. It is averred in the applicant's affidavit that on 2nd November, 2019, he contacted the respondent to find out if his horse was in their possession and he spoke to Ms. Natasha Moriarty. He was informed that the horse was impounded and because this was the second incident that year, the horse was to be put down. The applicant informed Ms. Moriarty that he was involved in a car accident and that it was not his fault. Ms. Moriarty stated that in order to get the horse back, he would have to pay a fee of €1,200.00. The applicant indicated that he could not afford that.
It was stated in the applicant's affidavit that his solicitors began contacting the respondent on 11th November, 2019. The correspondent has been set out above.
The applicant averred in his affidavit that the...
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