McDonagh v Galway County Council

JurisdictionIreland
JudgeMr. Justice Garrett Simons
Judgment Date10 May 2019
Neutral Citation[2019] IEHC 304
CourtHigh Court
Docket Number2018 No. 558 J.R.
Date10 May 2019

[2019] IEHC 304

THE HIGH COURT

JUDICIAL REVIEW

Simons J.

2018 No. 558 J.R.

BETWEEN
EDWARD McDONAGH
APPLICANT
AND
GALWAY COUNTY COUNCIL
RESPONDENT

Judicial review – Local authority – Unlawful conduct – Applicant seeking judicial review – Whether the conduct of the respondent in destroying a horse was unlawful

Facts: The respondent, Galway County Council, made a decision to destroy a horse on the basis that there were fees of €3,129.68 outstanding in respect of inter alia the transportation, housing and veterinary care of the horse. This figure also included a sum of €589.93 in respect of unspecified “administration” costs. The decision to destroy the animal was made against a background whereby there was an ongoing dispute between the local authority and the person asserting ownership of the horse as to whether the latter had established proof of ownership. The person asserting ownership of the horse then instituted judicial review proceedings. The proceedings alleged that the conduct of the local authority in destroying the horse was unlawful. In that regard, the applicant, Mr McDonagh, relied on the judgment of the High Court (Hedigan J) in Burke v South Dublin County Council [2013] IEHC 185. The applicant maintained that a local authority is not entitled to use its statutory power to destroy an animal for the sole purpose of, as the applicant characterised it, enforcing a contractual debt. The applicant pleaded that Galway County Council should instead have relied upon s. 39(3) of the Control of Horses Act 1996 to recover, as a simple contract debt, any amount which the authority maintained was due and owing to it under the legislation. The applicant also pleaded that the issue of the fees being sought was consistently identified as an issue in dispute, and that the local authority had been called upon to refrain from euthanising the horse until that issue was resolved.

Held by the High Court (Simons J) that, in the particular circumstances of this case, the local authority acted precipitously in arranging to have the horse destroyed. Firstly, Simons J held that there was no evidence before the court to demonstrate that the local authority was authorised under the Bye-Laws to recover an amount of €3,129.68; in particular, the Bye-Laws do not authorise the charging of fees in respect of “administration”. Secondly, Simons J held that it was disproportionate to destroy the animal in circumstances where there was an ongoing dispute as to whether the applicant had established proof of ownership, and where the local authority had indicated that it would assess additional documentation which had been provided by the applicant. Thirdly, Simons J held that the local authority should at least have considered the option of disposing of the horse by way of sale rather than destruction.

Simons J proposed making an order in terms of paragraph (d)(ii) of the statement of grounds setting aside the decision of Galway County Council to dispose, by way of destruction, of the horse. Simons J also proposed making a declaration that Galway County Council acted ultra vires in purporting to demand payment of the sum of €3,129.68 and then relying on the non-payment to destroy the horse, in circumstances where that sum was not calculated in accordance with Schedule B of the Galway County Council Bye-Laws 1998.

Order granted.

JUDGMENT of Mr. Justice Garrett Simons delivered on 10 May 2019.
INTRODUCTION
1

These proceedings concern the exercise by a local authority of its statutory powers under the Control of Horses Act 1996. This Act confers upon a local authority a power to detain horses, and, in certain circumstances, to destroy a horse which has been detained. On the facts of the present case, Galway County Council made a decision to destroy a horse on the basis that there were fees of €3,129.68 outstanding in respect of inter alia the transportation, housing and veterinary care of the horse. This figure also included a sum of €589.93 in respect of unspecified ‘administration’ costs.

2

The decision to destroy the animal was made against a background whereby there was an ongoing dispute between the Local Authority and the person asserting ownership of the horse as to whether the latter had established proof of ownership.

3

The person asserting ownership of the horse then instituted the within judicial review proceedings. The proceedings allege that the conduct of the Local Authority in destroying the horse was unlawful. In this regard, the Applicant relies on the judgment of the High Court (Hedigan J.) in Burke v. South Dublin County Council [2013] IEHC 185. The Applicant maintains that a local authority is not entitled to use its statutory power to destroy an animal for the sole purpose of, as the Applicant characterises it, enforcing a contractual debt. The Applicant pleads that Galway County Council should instead have relied upon section 39(3) of the Control of Horses Act 1996 to recover, as a simple contract debt, any amount which the authority maintains is due and owing to it under the legislation. The Applicant also pleads that the issue of the fees being sought was consistently identified as an issue in dispute, and that the Local Authority had been called upon to refrain from euthanising the horse until that issue was resolved.

4

For the reasons set out in detail herein, I have come to the conclusion that, in the particular circumstances of this case, the Local Authority acted precipitously in arranging to have the horse destroyed. First, there is no evidence before the court to demonstrate that the Local Authority was authorised under the Bye-Laws to recover an amount of €3,129.68. In particular, the Bye-Laws do not authorise the charging of fees in respect of ‘administration’. Secondly, it was disproportionate to destroy the animal in circumstances where there was an ongoing dispute as to whether the Applicant had established proof of ownership, and where the Local Authority had indicated that it would assess additional documentation which had been provided by the Applicant. Thirdly, the Local Authority should at least have considered the option of disposing of the horse by way of sale rather than destruction.

FACTUAL BACKGROUND
5

The Applicant purports to be the owner of a horse referred to as ‘Chief of Colours’. This horse was detained by officials of Galway County Council (hereinafter ‘ the Local Authority’ or ‘ Galway’), acting in conjunction with members of An Garda Síochána, on 11th February 2018. The horse was detained pursuant to the provisions of section 37 of the Control of Horses Act 1996.

6

One of the relevant officials of the Local Authority, Mr Shane Coogan, has sworn an affidavit to the effect that the horse was seized in circumstances where it was causing a hazard to road users at the edge of the Headford Road, Co. Galway. Mr Coogan avers that the horse was one of a total of ten equines posing a danger to persons or property.

7

Mr Coogan has exhibited a copy of the Notice of Seizure and Detention of a Horse(s) dated 11th February 2018. It is stated as follows at the end of the Notice.

‘The owner(s) of the horses may collect the horse(s) on production of suitable identification, proof of ownership in the form of a copy of horse passport/licence; micro-chip number; proof of lease/access to equine registered lands for the keeping of the animal(s) and the payment of all appropriate fees.

Please take note that if the owner does not collect the horses within 5 days from the date of this notice, the Council will dispose of the horses in accordance with Galway County Council's Bye-Laws and the Control of Horses Act 1996. Galway County Council reserves the right to retain the horses pending any prosecution it might take.’

8

The Applicant has consistently queried whether the horse was in a public place at the time when it was seized. The implication being that, in truth, the horse had been wrongfully removed from private lands. However, in circumstances where the Applicant has not adduced any direct evidence to the effect that the horse was removed from private lands, the only inference that this court can draw is that the horse was, in fact, in a public place at the time it was detained.

9

There appears to have been some initial confusion within the Local Authority as to whether or not the horse in respect of which the Applicant is claiming ownership had been detained. Specifically, the Applicant has averred that when he attended at the public counter of the Local Authority on 13th February 2018, he was mistakenly informed that his horse had not been detained. At all events, this mistake was soon corrected, and by 16th February 2018, the Local Authority officials confirmed that they had detained a horse which met the description of the horse in respect of which the Applicant claims ownership.

10

The Local Authority subsequently wrote to the Applicant on 26th February 2018 in the following terms. (This letter appears to have crossed with a letter of the same date from the Applicant's solicitors).

‘You presented to the housing section public counter on Friday the 16th of February 2018 at 0900 and advised that you are the owner of a Standardbred, skewbald stallion which was seized by Galway County Council over the weekend of the 11th of February 2018. You presented a passport issued by The Standardbred and Trotting Horse Association of Great Britain and Ireland, (displaying the chip number […]) this association is not a passport issuing body authorised by the Department of Agriculture, Food and the Marine in Ireland. The passport you presented has not been lodged with an Irish Passport Issuing Organisation and does not feature on the Irish Central Database.

As the keeper of the equine you are obliged to lodge the passport (which is considered to be a foreign passport) with an Irish Passport Issuing Organisation (PIO) – in order that it is...

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2 cases
  • McDonagh v Galway County Council
    • Ireland
    • High Court
    • 1 November 2019
    ...damages could be addressed. The High Court ruled that the destruction of the horse was unlawful in a judgment delivered on 10 May 2019: [2019] IEHC 304 (the principal judgment). Galway County Council maintained the position that it was not liable to pay damages to the applicant. Four broad ......
  • O'Donoghue v Laois County Council
    • Ireland
    • High Court
    • 31 July 2020
    ...of bye-laws by elected representatives. Counsel relied on the following statement of Simons J. in McDonagh v. Galway County Council [2019] IEHC 304:- ‘The making of the bye-laws is a reserved function of the elected members and is subject to extensive public consultation under section 13 of......

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