Hanrahan -v- Minister for Agriculture, Fisheries and Food, [2017] IESC 66 (2017)

Docket Number:45 & 46/11
Party Name:Hanrahan, Minister for Agriculture, Fisheries and Food
 
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The Supreme CourtSupreme Court No: 45/2011

O’Donnell J.

MacMenamin J.

O’Malley J.

Between/

John Hanrahan Plaintiff/Respondent

- and -

The Minister for Agriculture, Fisheries and Food Defendant/Appellant

Judgment of O’Donnell J. delivered on 18th day of October 2017.

1 These proceedings concern the consequence of a seizure of cattle by the defendant (who for ease of reference I will refer to the “Department of Agriculture” or the “Department”) from the plaintiff (“Mr. Hanrahan”) which was carried out over a two day period on the 15th and 16th March, 2006. However an agreement was made less than a month later on the 11th of April of the same year for the return of so many of the cattle as would bring the total on Mr. Hanrahan’s farm up to a maximum of 328. This was not done in circumstances which were the subject of substantial dispute at the hearing of the action. Instead 223 cattle were sold. After a hearing on liability which occupied nine days, the High Court (McMahon J.) delivered judgment holding that the Department was in breach of contract in failing to return the 223 cattle to Mr. Hanrahan. ([2009] I.E.H.C. 304). There is no appeal against that finding. The assessment of damages occupied another seven days before the same judge, who was of course, fully familiar with the events. The High Court judge delivered judgment on 26th November, 2010, ([2010] I.E.H.C. 442) and assessed damages at €304,320 together with interest from the date of judgment. Against that judgment both parties have appealed. The Department contends that the trial judge erred in two significant respects, and Mr. Hanrahan cross-appeals, contending for perhaps as many as 16 material errors in the judgment.

2 It is easy to be wise in hindsight, and it is important to say that even at this remove, it is apparent that this is a case which presented more than usual difficulties. Mr. Hanrahan for his part is no stranger to court proceedings having been the plaintiff in the celebrated case of Hanrahan v. Merck Sharp and Dohme (Ireland) Ltd. [1988] I.L.R.M. 629, but he has also been a familiar figure in these courts in recent times, often acting for himself, advancing his contentions passionately but nearly always it should be said politely and respectfully.

3 It is also the case that his method of conducting his forms of business during the relevant period was somewhat unorthodox. Two examples are perhaps sufficient. It appears that the assessment of damages was conducted on the basis that there were no relevant books, records or even tax returns establishing the profitability or otherwise of the farm during the relevant period. This obviously poses significant difficulties for proceedings designed to assess the damages suffered in respect of a breach of contract. In the event, it emerged only at the end of the proceedings that there had been a complicated and undisclosed arrangement between Mr. Hanrahan and a brother-in-law in England, to fund the operation of his farm in a sum in excess of €1 million. It is also clear that there was a degree of distrust and misunderstanding between the parties, and frustration and skepticism on the part of the Department with Mr. Hanrahan. As often happens, parties may become entrenched to the point where the logic of pursuing a claim or its defence becomes secondary, and it would not be surprising if this occurred in this case. Making allowance for all these matters, it must be observed that a seven day trial on an assessment of damages runs the risk of incurring costs that may outweigh the damages in issue. This is no criticism of the trial judge who was obliged to permit the parties to advance the respective cases they wished to make however unrealistic, and who in fact, addressed the case with commendable sympathy and skill. In due course, this Court required two days to determine whether those damages were properly assessed. It is difficult to believe that justice could not have been done more cheaply and speedily if a more focused and realistic approach had been taken.

4 In considering this matter the Court also cannot ignore the fact that both parties presented expert evidence as to the calculation of damage, which diverged quite dramatically. On behalf of the plaintiff, it was maintained that he had suffered losses in excess of € 834,638 before interest, while the expert retained by the defendant estimated the losses at € 1,979, and in effect virtually nil. Experts are permitted to give evidence of their opinion, while lay people are not. This is because experts are understood to have professional expertise, and to owe an obligation to the Court to give their own expert opinion to the Court. I do not wish to criticize the individuals who gave evidence in this case, since this was a difficult case and in any event the “high ball – low ball” approach which occurred here is only an example of a more widespread phenomenon. However, it is surely not coincidental that it was the independent expert on behalf of the plaintiff whose opinion was that the damages were extremely substantial, and the expert on behalf of the defendant who considered that in effect there was no loss at all. I addressed this issue in my judgment in Lett &Co v Wexford Borough Council [2012] I.R. 198. Parties, and witnesses, should appreciate that an approach which presents unrealistically high claims or low responses may well be counterproductive. If, for example, a court correctly rejects the method of calculation of loss a plaintiff will not be in a strong position to challenge the Court’s own calculation and may receive less than a more reasonable approach may have yielded The time and cost involved in the assessment of damages could be reduced, sometimes significantly, by a more realistic approach to the dispute by the experts involved, and if necessary, a more robust approach by courts to the evidence. The acceptance of any expert evidence is dependent upon the reputation of the witness. An expert who merely advances a party’s case rather than his or her own independent opinion may, and perhaps should, be criticised, sometimes severely.

5 It is worth perhaps standing back for a moment and recognising that what was involved here was the assessment of damages to a farmer by reason of being deprived of 223 cattle as of April, 2006. Those damages were to be assessed by the High Court on the basis that the contract had been performed. Therefore the Court was asked to determined how much it required to put Mr. Hanrahan in the position he would have been if the cattle had been returned in April, 2006. Prima facie that might involve the value of the cattle (or the cost of replacement cattle if different) together with any additional loss suffered between the breach of contract by the failure to return the cattle, and the point at which it is estimated the plaintiff ought to have been able to purchase and put in place an adequate replacement herd. There are clearly a number of possible qualifications and variables, but the principal assessment is not unduly complex. I accept that additional difficulties were created because the assessment had to proceed on the basis of hypothesis, since there was little independently verifiable information forthcoming as to the manner in which Mr. Hanrahan had managed his farm; a difficulty which is compounded by the fact that the Department maintained that his practices were unusual, uncommercial in some respects, and not successful. But Ireland is an agricultural country, and the profitability of a general livestock dairying business during the relevant period, is something which ought to have been well known, particularly to the Department of State with responsibility for agriculture. Furthermore, many financial advisors will of necessity have available to them information as to the profitability of broadly comparable farm businesses. In other words, it ought to have been possible to reach some reasonable degree of common ground as to what an average farm would have lost during the relevant time, and the possible variations in that calculation, and then perhaps to debate any question as to the extent to which there should be subtraction from or addition to the basic amount because of practices and matters peculiar to the Hanrahan farm.

6 One approach which the Court might usefully take is to consider what the respective claims made mean for the business being conducted. In this respect, if the Department’s expert was correct, then it was in effect being contended that the Department did Mr. Hanrahan a favour when it breached its contract to return the cattle, since it was being contended that the business would not have been profitable, and indeed the cattle would have lost nearly all value over the period. Conversely, if Mr. Hanrahan’s claim was correct, then the years between 2006 and 2010 were a bonanza for the average farmer. It is hardly surprising therefore that in the event the trial judge accepted neither approach, and assessed damages at a figure somewhere between the two. This emphasizes the strong desirability of a realistic approach by respective experts. This is something which is ultimately in the interests of not just of the courts system, but of the parties. If the process of adjudication, particularly in respect of damages, involves ambitious claims being met by an equally extreme response, the parties can hardly complain if a judge is forced to seek some apparently sensible resolution which may, because it is based on very limited information, either underestimate or overestimate the true loss. It will also be difficult in such circumstances to persuade an appellate court to interfere unless there are clear and glaring errors. Nevertheless, as already observed, both parties challenged the award in this case on a number of grounds.

The Department’s Appeal

7 The Department advanced two broad arguments. First, it was said that the award in the High Court involved a...

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