Hourigan v Min for Agriculture

• Jurisdiction: Ireland
• Judge: MR JUSTICE DECLAN COSTELLO
• Judgment Date: 26 January 1995
• Neutral Citation: 1998 WJSC-HC 8118
• Court: High Court
• Date: 26 January 1995

1998 WJSC-HC 8118

THE HIGH COURT

No.8929P/1990

HOURIGAN v. MIN FOR AGRICULTURE

BETWEEN

CON HOURIGAN

Plaintiff

AND

THE MINISTER FOR AGRICULTURE

Defendant

TRANSCRIPT OF JUDGMENT

1 DELIVERED BY THE PRESIDENT OF THE HIGH COURT, THE HONOURABLE MR JUSTICE DECLAN COSTELLO, ON 26TH JANUARY 1995

APPEARANCES

Plaintiff in Person

For the Defendant:

Vincent Landy SC

Aindrias 0 Caoimh SC

Gordon Duffy BL

Instructed by

Chief State Solicitor

2 These proceedings relate to an EEC scheme for the payment of premiums for good quality ewes which was administered by the Department of Agriculture. At the same time the Department was administering another scheme called "Scheme of Headage Payments on Sheep in Disadvantaged Areas", but we are not concerned with that particular scheme.

3 Under these schemes flock owners were required to fill in an application form. As the plaintiff and his wife owned the land and the flock, they filled in an application form in 1983 under the 1983/84 scheme. The first item of dispute in this action relates to what happened to that application. The application form does not appear to have been dated but was stamped "Received 9th May 1983", which was some time after the date for completion of the application. This first application was made by the plaintiff because Mr Cunningham (on behalf of the Department) telephoned the plaintiff and reminded him of the need to bring the application in order to avail of the scheme.

4 It is important to consider the terms and conditions of the application form and I do so briefly. The application form requires the applicant to give details of the number of sheep dipped during the statutory dipping period. On this first application the plaintiff was unable to comply with this requirement but he enclosed a letter saying why he was unable to indicate the dates on which dipping had been carried out or to send on a certificate of dripping. In this letter the plaintiff indicated that he had purchased the flock from different vendors who had assured him that the dippingregulation had been complied with and that he did not have certificates to prove compliance with the regulation.

5 The application form contains the following section:

"I have read the Terms and Conditions of the Scheme(s) I entering and I make the declarations and give the under-takings required by the Scheme(s) as set out overleaf.""

6 It is important to note that this declaration was part of the ???which provided for payment in respect of which the plaintiff's claim is now made.

7 The terms and conditions of the 1983/84 scheme are also ??? It contained conditions which were not part of the later ??? Condition 3 provides that, to be eligible for the premium, the applicant must produce a certificate showing that his entire ??? had been dipped during the statutory dipping period. The other terms and conditions, which are also to be found in the later applications, are important, in particular condition 5:

"Approval of applications shall be subject to such ??? (with or without notice) of each applicant's flock as ??? Minister may deem necessary. Failure of the applicant ??? give all reasonable assistance and information to the Department's Inspecting Officer will result in his application being rejected."

8 I do not think that the plaintiff was refused payment on this application because of his inability to produce a dipping certificate. The plaintiff did not receive payment on his ??? application because of problems that arose in connection with inspection of his flock.

9 Condition 6 provides: The Minister may at discretion???payment...", and I draw attention to the fact that the Minister is given a discretion to refuse payment. Condition 8 goes on to provide: "The Minister's decision in all matters relating to this Scheme shall be final." If the Minister exercises his discretion wrongfully, his decision can be subject to review by the courts. But it is of considerable significance that the scheme provides for the exercise of the Minister's discretion and for his decision to be binding and I therefore have to consider how the Minister exercised his discretion in this case.

10 The Minister could refuse payment under Condition 6(i) where the applicant was not maintaining ewes of a quality and age suitable for lamb production. Under Condition 6(iii) the Minister could refuse payment if there was failure to comply with the terms and conditions of the scheme. Under Condition 6(iv) the Minister could also refuse payment if a false or misleading statement was made in the application.

11 I now turn to what happened in this case. As I have already said, this first application had been made out of time but there was no point being taken by the Department about this delay. Instead, Mr Cunningham (the officer of the Department who was mainly con-cerned in dealing with the plaintiff's application) took steps to carry out his duties under the scheme. It is not necessary for me to go into all the evidence of what happened in this case. I accept that it all happened a considerable time ago. However, for reasons which it is probably impossible to adjudicate on with any accuracy, relations between the plaintiff and Mr Cunninghamquicklydeteriorated. In fact, the plaintiff admitted that he had on occasion lost his temper with Mr Cunningham.

12 In view of the long period of time that has elapsed it is ??? that the recollection of witnesses will be vague as to what act happened, but I find myself reaching the conclusion that Mr Cunningham's recollection is to be preferred. I do not ??? a great deal turns on this point, but I am quite satisfied that was happening in June 1983 is that efforts were being made to ??? out an inspection of the flock and that the plaintiff was ??? conditions under which he was prepared to allow inspection. ??? these conditions were not complied with, the plaintiff refused mission for inspection. It seems to me that the efforts made ??? Department's officers to carry out the inspection under the ??? and conditions of the scheme were reasonable. The...