Kenny v The Minister for Agriculture and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy
• Judgment Date: 01 November 2013
• Neutral Citation: [2013] IEHC 520
• Docket Number: [2010 No. 6822P]
• Court: High Court
• Date: 01 November 2013

BETWEEN

PATRICK JOSEPH KENNY

PLAINTIFF

AND

THE MINISTER FOR AGRICULTURE AND FOOD, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

[2013] IEHC 520

[2010 No. 6822P]

THE HIGH COURT

Agricultural law- European Union law- Statutory scheme- Statute-barred-Dismissal- Laches- Justiciability- Abuse of process- Public law- Transposition- Ultra vires- Order 84 rule 21- Whether the claim of the plaintiff was statute-barred and/ or warranting dismissal on grounds of inexcusable delay

Facts: The Court considered the order sought by the defendants claiming that the claim of the plaintiff was statute-barred pursuant to the Statute of Limitations 1957 and was an abuse of process, and/ or warranting dismissal on the basis of delay. The proceedings concerned a claim as to the absence of a statutory scheme for compensation in respect of the Diseases of Animals Act 1966, a claim relating principally to his treatment in the 1990s. The plaintiff had claimed inter alia that various EU directives had not been validly transposed, that the Minister had failed to comply with EU law and that certain statutory instruments were ultra vires the Minister.

Held by Laffoy J. in dismissing the claim of the plaintiffs as statute-barred and dismissing the balance of the plaintiff”s claim on the basis of its public law component. Ignorance of the law did not stop the Act of 1957 running. He had not sought legal advice until 2010 and had not brought forward good reasons to extend time in respect of the public law challenges.

Ms. Justice Laffoy

Judgment of Ms. Justice Laffoy delivered on 1st day of November, 2013.

1 These proceedings were initiated by a plenary summons which issued on 16th July, 2010. An amended statement of claim, the second amended statement of claim, was delivered by the solicitors for the plaintiff on 14th October, 2011.

2 The application now before the Court was initiated by a notice of motion dated 24th October, 2012, which was returnable for 19th November, 2012, in which the defendants sought the following orders:

(a)(i) an order directing the trial of a preliminary issue of law as to whether the plaintiff”s claim against the defendants or part thereof, in particular, the alleged causes of action asserted in paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 16A, 17, 17A, 18, 19, 20, 21, 22, 23, 24A(b), 25 and 26 of the amended statement of claim was statute-barred pursuant to the provisions of the Statute of Limitations 1957 (the Act of 1957), as amended,

(ii) coupled with an order upon the trial of the issue that the plaintiff”s claim is statute-barred and an order dismissing the plaintiff”s claim or part thereof against the defendants;

(b) an order pursuant to the inherent jurisdiction of the Court dismissing the plaintiff”s claim as against the defendants as an abuse of process and/or for delay given the true nature of the claim being made and the requirement to bring forward the same promptly and/or within the time limits provided for an Order 84, rule 21 of the Rules of the Superior Courts (the Rules), which applied by analogy or implication, or within a reasonable time;

(c) an order pursuant to the inherent jurisdiction of the Court dismissing the plaintiff”s claim as against the defendants in respect of the equitable remedies sought as an abuse of process;

(d) an order dismissing the plaintiff”s claim as against the defendants pursuant to the inherent jurisdiction of the Court by reason of the inordinate and inexcusable delay of the plaintiff in the commencement and/or prosecution of his claim and the prejudice that would be suffered by the defendants in defending these proceedings and/or on the grounds that the balance of justice requires that the proceedings be dismissed having regard to the aforesaid inordinate and inexcusable delay;

(e) an order pursuant to Order 19, rule 28 of the Rules and/or the inherent jurisdiction of the Court striking out the plaintiff”s proceedings as against the defendants or part thereof as set out in paragraphs 12, 13, 14, 15, 16, 16A, 17, 17A, 18, 19, 20, 21 and 22 of the amended statement of claim, on the basis that the claims are unstateable and/or not justiciable and/or disclose no reasonable cause of action and/or the plaintiff lacks locus standi to make them and/or they are bound to fail and/or are frivolous and/or vexatious; and

(f) an order pursuant to the inherent jurisdiction of the Court dismissing the plaintiff”s claim as against the defendants as pleaded in paragraph 10 of the amended statement of claim as an abuse of process as a collateral challenge to the outcome of the criminal proceedings.

3 When the matter was first in the motion list on 19th November, 2012, an order was made by the Court (Murphy J.) by consent of the parties that, without further pleadings, a preliminary issue be tried as sought in the notice of motion in the terms set out at (a)(i) in paragraph 2 above. As regards pleadings, in fact, the defendants had delivered an amended defence on 19th October, 2012 and, subsequent to the making of the order, the plaintiff delivered a reply in January 2013.

4 The defendants” application was grounded on an affidavit sworn by a solicitor in the office of the Chief State Solicitor, Jevon Alcock, on 22nd October, 2012. The replying affidavit sworn by the plaintiff”s solicitor, Peter H. Jones, on 10th January, 2013 was filed subsequent to the making of the order of 19th November, 2012 in accordance with the order. There is very little by way of outline of the factual foundation of the claims brought in the proceedings pleaded in the amended statement of claim and the factual situation is hardly elaborated on at all in the affidavit of Mr. Jones. In very broad terms, the proceedings are about the operation by the first named defendant (the Minister) of the Diseases of Animals Act 1966 (the Act of 1966) and schemes made by the Minister for the eradication of bovine tuberculosis (TB Scheme) and bovine brucellosis (Brucellosis Scheme) and, in particular, the absence of a statutory scheme of compensation in relation to the compulsory slaughter of reactor animals, and the operation of Community Aid payment schemes for payment to farmers. As they are at the core of the defendants” contention that most elements of the plaintiff”s claim are statute-barred or otherwise out of time, it is essential to try and identify the factual bases of the claims and, in particular, the time factors involved, as well as their legal bases, as pleaded. That has not been an easy task, because the pleading is somewhat confusing and lacks clarity in places.

The factual and legal bases of the plaintiff”s claims as pleaded

5 One learns from paragraph 1 of the amended statement of claim that the plaintiff is a farmer who farms in County Roscommon, that he is the lawful owner of a cattle herd and that a specified herd number has been allocated to him by the Minister.

6 Paragraphs 7, 8 and 9 of the amended statement of claim relate to an allegation by the plaintiff that the Minister has wrongfully withheld from the plaintiff his full entitlement in respect of monies owing to him under various Community Aid payment schemes, which are itemised, for example, what is referred to as the ‘Cattle Headage Scheme in more severely handicapped areas’, based, inter alia, on a wrongful accusation that the plaintiff was in breach of the Act of 1966. It is clear that the allegation relates to withholding of payments for each year from 1991 to 1997. Accordingly, the plaintiff could have pursued his claim in relation to the alleged wrongful withholding in respect of the most recent year to which a claim relates, 1997, at least twelve years before these proceedings were instituted and, in the case of the oldest claim, which dates from 1991, at least eighteen years before the proceedings were instituted. In relation to the alleged wrongdoing, the relief sought by the plaintiff is declaratory relief reflecting the plaintiff”s allegation and also a mandatory injunction or an order of mandamus directing payment to him of the withheld monies he alleges to be entitled to for the years 1991 to 1997 together with interest.

7 Paragraph 10 of the amended statement of claim relates to criminal proceedings brought at the instigation of the Minister against the plaintiff on 26th October, 1992 on three charges of failure to move a reactor cow in accordance with a movement permit contrary, inter alia, to s. 48 of the Act of 1966. The nub of the factual basis of this element of the plaintiff”s as deposed to by Mr. Alcock, which will be elaborated on later, is that on 4th March, 1993, the plaintiff was convicted in the District Court on those charges. He subsequently appealed to the Circuit Court. On the hearing of the appeal in the Circuit Court on 12th October, 1993, the plaintiff pleaded guilty to one of the charges and the Judge of the Circuit Court applied the Probation Act to him. As regards the other two charges, the State entered a nolle prosequi. The wrong alleged in paragraph 10 is that the proceedings were grounded on the plaintiff”s refusal to surrender alleged reactors into the Minister”s ‘non-statutory reactor grant/movement permit based direction to slaughter scheme’ as being conduct on the part of the plaintiff which breached the Act of 1966.

8 It is difficult to relate what is pleaded in paragraph 10 on its own to any specific relief claimed in the prayer in the amended statement of claim, which overall itemises no less than thirty five forms of relief, which are not set out in a logical sequence having regard to the sequence of the pleas of wrongdoing in the body of the amended statement of claim. The relevant item may be item (xx), in which declaratory relief is sought that the Minister maliciously and without reasonable cause procured the bringing of criminal proceedings against the plaintiff under a TB Scheme and a...