Kildare Meats Ltd v Minister for Agriculture

• Jurisdiction: Ireland
• Judge: FENNELLY J.
• Judgment Date: 29 January 2004
• Neutral Citation: [2004] IESC 8
• Docket Number: [S.C. No. 266 of 2001],Record No. 266/01
• Court: Supreme Court
• Date: 29 January 2004

[2004] IESC 8

THE SUPREME COURT

McGuinnes J.

Hardiman J.

Fennelly J.

Record No. 266/01

KILDARE MEATS LTD & KILDARE CHILLING CO LTD v. MINISTER FOR AGRICULTURE

BETWEEN

KILDARE MEATS LIMITED and KILDARE CHILLING COMPANY LIMITED

Plaintiffs/Respondents

and

THE MINISTER FOR AGRICULTURE and FOOD

Defendant/Appellant

Citations:

EIRE-KONTOR V HAUPTZOLLAMT HAMBURG-JONAS 1977 ECR 771

EEC REG 805/68

EEC REG 2730/79 ART 9

EEC REG 729/70 ART 8(1)

EUROPEAN COMMUNITIES (COMMON AGRICULTURAL POLICY)(MARKET INTERVENTION) REGS 1973 SI 24/1973

EEC REG 2730/79 ART 10

EEC REG 2730/79 ART 20

EEC REG 2730/79 ART 20(3)

EEC REG 2730/79 ART 20(4)

EEC REG 2730/79 ART 30(1)

EEC REG 2730/79 ART 15

Synopsis:

EUROPEAN LAW

Agriculture

Export refund scheme - Contract - Credit and Security - Forfeiture of security - Beef exports - Whether proceedings misconceived - Whether judicial review proceedings more appropriate (266/2001 - Supreme Court - 29/1/2004)

Kildare Meats v Minister for Agriculture - [2004] 1 IR 92

The plaintiffs were involved in the export of beef and had exported a quantity of beef to Egypt. The respondent Minister made a decision to refuse the export refunds that were owed to the plaintiffs in respect of the shipment. The plaintiffs sought to recover the monies and initiated a claim for the money due. Smyth J in the High Court in a judgment issued on the 31st of July, 2001 found in favour of the plaintiffs declaring that the sum of money involved was due properly from the Minister. The respondent Minister appealed contending as a preliminary issue that the action by the plaintiffs was not maintainable as the decision to refuse payment had not been questioned by judicial review proceedings or otherwise.

Held by the Supreme Court (Fennelly J delivering judgment, McGuinness J and Hardiman J agreeing) in allowing the appeal. European legislation had required member states to designate the appropriate authority for the operation of the export refund system. In this instance the Minister was the authority for the operation of the scheme. The plaintiffs could not simply ignore the respondent's decision and sue for the monies directly. The proceedings were therefore misconceived, however as the defence filed by the respondent was not sufficiently clear, the plaintiffs would be allowed amend their pleadings and the claim would be remitted to the High Court.

Reporter: R. F.

1 29th day January 2004 byFENNELLY J.

FENNELLY J.

2 This appeal relates to a claim for the payment of export refunds on beef which was exported from the territory of the European Community as long ago as 1987. The Defendant/Appellant (hereinafter "the Minister") made a decision refusing payment of the export refunds, or, more precisely, forfeiting the security provided to guarantee their export. The ??? (hereinafter "Kildare Meats") sued for payment of the amount of the ??? for Judicial Review or otherwise directly challenge the Minister's ??? heard the claim as a straightforward claim for money due. Kildare

3 Mr Justice Smyth, in his judgment of 31 ^st July 2001, declared that a sum of money to be quantified was due properly from the Minister to Respondent in respect of the exportation to the Lebanon via Port Said in Egypt on or about the 8 ^th or 9 ^th June 1987 of 8,435 cartons weighing 222 metric tonnes of frozen boneless beef together with interest for a period of five years.

4 The Minister makes a preliminary point on the hearing of the appeal. It is that the action was not maintainable, because Kildare Meats had never challenged the validity of his decision. Since the decision of the Minister remains in force, Kildare Meats is not entitled to payment of the export refunds. This judgment deals with that preliminary issue only.

5 I will refer, firstly, to the main facts concerning the export of the beef and to the proceedings to date; secondly, I will, describe the system of export refunds; thirdly, I will consider the arguments of the parties.

The Facts

6 On 26 ^th of April 1987, the m.v. Igloo sailed from the port of Greenore, destined for Port Said carrying a consignment of almost 500 tonnes of beef net weight.

7 Prior to the exportation, Kildare Meats had secured the Minister's decision to pay in advance the applicable export refunds in respect of export of the goods outside the Community. These amounts had been paid and the appropriate security provided by a financial institution, in accordance with the applicable Regulations, Kildare Meats had completed the necessary declarations and had placed the goods under customs control. The consignee was declared to be the Egyptian Company for Meat Poultry and Food Supply, Cairo. The beef was accompanied by certificates that it had been inspected by a veterinary surgeon and was "sound, healthful, wholesome and otherwise fit for human food." The Minister had also provided a Sanitary Certificate to the effect that the meat was free from "any sign of decay or putrefaction rancidity or abnormal or offensive odour."

8 According to the bill of lading, the beef was consigned to the Egyptian Company for Meat Poultry and Food Supply and was to be discharged at Alexandria or Port Said. It appears that the Egyptian authorities, in circumstances which are in dispute, rejected part of the beef on grounds of alleged unfitness. The learned trial judge did not accept that the beef was unfit. As will appear later in this judgment, it is not necessary to arrive at any conclusion on that issue for the resolution of this appeal.

9 The rejected part of the consignment was reshipped under a new bill of lading, also purportedly dated 26 ^th April 1987, in respect of 231.3818 net tonnes, destined for Beirut in the Lebanon and consigned to Dekermendjian Freres.

10 Kildare Meats claimed that, by exporting the meat to the Lebanon, it had complied with all requirements of the export refund scheme. It submitted documents to the minister as proof. From about February 1988, it commenced to demand release of its security. There followed, over a period of some two and a half years, protracted correspondence concerning the adequacy of proofs provided by Kildare Meats. The Minister sought explanations for the fact that the beef had sent on from Egypt to the Lebanon, the authenticity of the Lebanon import document and other proof that the beef had been sold for home consumption in that country.

11 It is unnecessary and would be inappropriate, in addressing the preliminary issue, to discuss the merits of the positions adopted by the parties in respect of these issues. To do so would beg the question of whether the learned trial judge was correct in adopting the burden of deciding the issues in contention himself, rather than, as proposed on behalf of the Minister, considering the correctness of the Minister's decision.

12 It suffices to mention, without comment, that the Minister, in correspondence, drew attention, inter alia, to the following points:

13 Evidence, which he claimed to have, suggesting that the Egyptian authorities had rejected the goods on health grounds;

14 The need for an explanation of the import of the goods into Egypt and re-export from that country;

15 Discrepancies in documents in respect of dates of transport, weights and numbers of beef cartons;

16 Suggestions of persistent irregularities in respect of export to Lebanon and the consequent need to have import documentation authenticated;

17 The suggested need for supplementary proof of import for home consumption in the Lebanon.

18 Kildare Meats sought to satisfy the Minister that it had fully complied with his legitimate requirements. It sought additional documentary proofs and furnished additional information.

19 Matters came to a head in October 1990. The Minister wrote on 22 ^nd October, giving notice that he was declaring forfeit the sum of £366,437.14 being security in respect of advance payment of export refunds plus regulatory penalty. He gave the following reasons:

20 i "(i) Clear, incontrovertible evidence has not been submitted of the import of the beef into Lebanon for home use. Such evidence as has been submitted contains contradictory statements as regards quantities and dates of import.

21 (ii) Evidence has not been submitted that the product was of sound and fair marketable quality and fit for human consumption at the time of shipment to Lebanon notwithstanding its rejection by the Egyption authorities.

22 (iii) The bill of lading submitted as evidence of transport of the beef from Ireland to Lebanon is not considered to be in compliance with Art 20.5 of Regulation 2730/70."

The Proceedings

23 In the Plenary Summons issued on 12 ^th November 1990, Kildare Meats sought an injunction restraining the Minister from forfeiting the security and damages. In the event, Lardner J refused an application for an interlocutory injunction. In the Statement of Claim delivered 2 ^nd January, 1991, Kildare Meats referred to the export of the meat and the Minister's decision purporting to forfeit the security. It pleaded that the Minister was not entitled to demand "payment of the said advance payments together with the regulatory penalty but rather is indebted to [Kildare Meats] in the amount detailed above." This refers to the amounts of the export refund claimed. The Statement of Claim than sought a declaration that the relevant sum "is properly due" by the Minister to Kildare Meats as well as a smaller sum by way of additional export refund, which was not allowed by Smyth J and which is not now relevant. No application for Judicial Review was made nor does the Statement of Claim impugn the decision of the Minister on any ground that might provide the basis for such an application.

24 The Defence of the Minister consists essentially of a denial of liability. It does not propound the decision of 22 ^nd October 1990 as a bar to the plaintiff's...