McDonagh v Galway County Council

JurisdictionIreland
JudgeMr. Justice Garrett Simons
Judgment Date01 November 2019
Neutral Citation[2019] IEHC 717
CourtHigh Court
Docket Number2018 No. 558 J.R.
Date01 November 2019

[2019] IEHC 717

THE HIGH COURT

JUDICIAL REVIEW

Garrett Simons

2018 No. 558 J.R.

BETWEEN
EDWARD MCDONAGH
APPLICANT
AND
GALWAY COUNTY COUNCIL
RESPONDENT

Judicial review – Damages – Liability – Applicant seeking damages arising out of the destruction by the respondent of a horse owned by the applicant – Whether the respondent was liable to pay damages to the applicant

Facts: The applicant, Mr McDonagh, claimed damages arising out of the destruction by the respondent, Galway County Council, of a horse owned by the applicant. It had been necessary to determine the question of whether the actions of the local authority were ultra vires before the claim for 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 arguments were advanced in support of this position: first, it was said that there are strong public policy considerations which militate against the imposition upon public authorities of liability to pay damages, lest it hamper them in the discharge of their functions; secondly, it was said that the statutory powers under the Control of Horses Act 1996 are exercised for the benefit of the public at large, i.e. as opposed to being for the benefit of a particular class of person, such as horse owners; thirdly, attention was drawn to what Galway County Council submitted are procedural shortcomings inherent in judicial review proceedings which make such proceedings unsuitable for the determination of a claim for damages; finally, the local authority submitted that the applicant had not established ownership of the destroyed animal.

Held by the High Court (Simons J) that, on the facts of the case, and as explained in detail in the principal judgment, Galway County Council acted in excess of its statutory powers in destroying the applicant’s horse on 13 April 2018; the cloak of statutory authority thus fell away and could not be relied upon by the local authority as a defence to the claim for damages. Simons J held that there were no public policy considerations which militated against the imposition of a liability to pay damages in such circumstances. Simons J held that the imposition of liability does not involve a court “second guessing” difficult policy decisions made by a public authority; rather, the imposition of liability to pay damages is necessary to ensure compliance with the statutory requirements and to vindicate the property rights of the owner. Simons J held that were the court to have accepted Galway County Council’s arguments, then analogous actions, such as, for example, the wrongful destruction of a herd of cattle, would equally not attract any liability on the part of a public authority to pay damages; this would be contrary to the rule of law. Simons J held that the appropriate award of damages in this case was €2,000.

Simons J held that the court would make an order of certiorari quashing the decision of Galway County Council to destroy the horse, Chief of Colours, on 13 April 2018, and would also make a declaration that the destruction of the said animal was ultra vires the Control of Horses Act 1996 and the Galway County Council Bye-Laws (1998). Simons J held that the applicant was entitled to recover the sum of €2,000 in damages as against Galway County Council. For the avoidance of any doubt, Simons J held that the formal order of the High Court would include a declaration to the effect that the demand for payment made by Galway County Council in April 2018 was invalid, and that there was no balance outstanding in favour of Galway County Council in respect of the accommodation or other costs associated with the detention of the horse during the period February to April 2018. Simons J held that he would hear counsel on the question of the appropriate costs order, if any, to make in these proceedings.

Judicial review allowed and damages awarded to applicant.

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

This judgment is delivered in respect of a claim for damages arising out of the destruction by Galway County Council of a horse owned by the Applicant. This is the second judgment to be delivered in the proceedings. It had been necessary to determine the question of whether the actions of the local authority were ultra vires first, before the claim for damages could be addressed. This court ruled that the destruction of the horse was unlawful in a judgment delivered on 10 May 2019, McDonagh v. Galway County Council [2019] IEHC 304 (“the principal judgment”). The proceedings were then adjourned for a short period to allow the parties to file written submissions on the claim for damages. Thereafter, evidence and oral submissions were tendered at a hearing on 26 June 2019.

2

Notwithstanding that it has been found to have acted unlawfully in destroying the horse, Galway County Council ( “Galway”) maintains the position that it is not liable to pay damages to the Applicant. Four broad arguments are advanced in support of this position. First, it is said that there are strong public policy considerations which militate against the imposition upon public authorities of liability to pay damages, lest it hamper them in the discharge of their functions. It is suggested that these public policy considerations are not confined to the tort of negligence but extend to all torts.

3

Secondly, it is said that the statutory powers under the Control of Horses Act 1996 are exercised for the benefit of the public at large, i.e. as opposed to being for the benefit of a particular class of person, such as horse owners.

4

Thirdly, attention is drawn to what Galway submits are procedural shortcomings inherent in judicial review proceedings which make such proceedings unsuitable for the determination of a claim for damages.

5

Finally, the Local Authority submits that the Applicant has not established ownership of the destroyed animal.

FACTUAL BACKGROUND
6

The factual background has been set out in detail in the principal judgment, and need not be repeated here. It is sufficient for present purposes to record that Galway seized the horse on 11 February 2018 and detained the animal for a number of weeks thereafter. Following on from an unlawful demand for payment of a sum of €3,129.68, and notwithstanding the making of certain representations to the Applicant on 12 April 2018, Galway proceeded to destroy the horse on 13 April 2018.

STRUCTURE OF JUDGMENT
7

This judgment will be structured as follows. First, the question of whether the conduct of Galway County Council in destroying the horse gives rise to a liability in damages will be addressed. Secondly, in the event that this question is answered in the positive, the quantum of damages will then be assessed.

LIABILITY FOR ULTRA VIRES ACTION
8

It is well established that a finding that a public authority has acted ultra vires does not, without more, give rise to a liability on the part of the authority to pay damages. Rather, in order for a party affected by the unlawful action of a public authority to succeed in a claim for damages, they must establish that the ultra vires act constitutes a tort or entails a breach of statutory duty which sounds in damages.

9

In many instances, the party claiming damages will seek to assert that the public authority has been guilty of the tort of negligence. The present case is unusual in that the Applicant relies primarily upon the less well-known tort of trespass to goods. This tort consists of wrongful interference with the possession of chattels. I will return to discuss the ingredients of this tort at paragraph 39 et seq. below.

10

Counsel for Galway, Mr Stephen Dodd, BL, has made a careful submission to the effect that the same type of public policy considerations which restrict the application of the torts of negligence and misfeasance of public office extend to other torts, including, relevantly, the tort of trespass to goods.

11

In order to determine whether this submission is well founded, it is necessary first to examine the case law on public authority liability. Thereafter, the question of the extent, if any, to which the public policy considerations underlying this case law can be translated to the tort of trespass to goods will have to be considered.

12

The judgments of the Supreme Court in Glencar Explorations plc v. Mayo County Council (No. 2) [2001] IESC 64; [2002] 1 I.R. 84 ( “Glencar Explorations”) provide a useful starting point for this exercise. The proceedings concerned a claim for damages arising out of a policy adopted by Mayo County Council in its capacity as planning authority. More specifically, Mayo County Council had included as part of its statutory development plan a policy which purported to prohibit the carrying out of mineral development, i.e. mining, within an area of some 300 square miles. The practical effect of the policy had been that any mineral development proposed for the area would represent a material contravention of the development plan and permission would be refused on this basis.

13

This policy was held to be ultra vires by the High Court (Blayney J.). The applicant in the proceedings, a mining company, then pursued a claim for damages. This claim was dismissed by both the High Court (Kelly J.) and the Supreme Court.

14

The claim for damages had been predicated upon inter alia the tort of negligence. The Supreme Court dismissed the claim. Keane C.J., having carried out a comprehensive review of the case law, posited a test for negligence in the following terms.

“[…] There is, in my view, no reason why courts determining whether a duty of care arises should consider themselves obliged to hold that it does in every case where injury...

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