Patrick Joseph Kenny v Minister for Agriculture and Food, Ireland, and the Attorney General

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Donnelly
• Judgment Date: 05 May 2022
• Neutral Citation: [2022] IECA 103
• Docket Number: Record No.: 2014/1051

Between/

Patrick Joseph Kenny

Appellant

and

Minister for Agriculture and Food, Ireland, and The Attorney General

Respondent

[2022] IECA 103

Donnelly J.

Ní Raifeartaigh J.

Collins J.

Record No.: 2014/1051

THE COURT OF APPEAL

Plenary proceedings – Statute barred – Cause of action – Appellant appealing against the judgment and order of the High Court – Whether the appellant’s claims were statute barred

Facts: The appellant, Mr Kenny, in July 2010, issued plenary proceedings that in broad terms were about the operation by the first respondent, the Minister for Agriculture and Food, of the Diseases of Animals Act 1966 and schemes made by the Minister for the eradication of bovine tuberculosis and bovine brucellosis 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. The majority of the claims made by the appellant referred to matters concerning his animals alleged to have occurred in the 1990s or in the year 2000. The High Court (Laffoy J) dismissed the entirety of the appellant’s claims on foot of the State respondents’ motion because the bulk of the claims were statute barred and the balance of the claims were public law claims that had not been brought promptly or within the time limits provided in Order 84, rule 21 of the Rules of the Superior Courts 1986 (as amended). Laffoy J also held in her judgment, although did not so order, that certain claims of the appellant could also be dismissed on other grounds such as that the pleadings did not plead any known cause of action. The appellant appealed to the Court of Appeal against the judgment and order of the High Court. The grounds of appeal numbered seven paragraphs in total. The final one dealt with the issue of costs. The six substantive grounds were general in nature and mainly asserted that the motion judge erred in the findings she made without identifying any specific error of law.

Held by Donnelly J that the appellant had not established that there was any error on the part of the High Court judge in dismissing his claims in their entirety; the bulk of his claims were statute barred, his plea of estoppel by representation, equitable estoppel and concealment of fraud (s. 71 of the Statute of Limitations) had all been rejected, and the remainder of his claims were dismissed as being public law claims not made within the time limits set down by Order 84, rule 21 which apply to claims which are public claims in substance even if brought by way of plenary proceedings. Donnelly J held that there was no error in law in so finding and there was no error on the part of the High Court judge in holding that there were no good reasons for extending the time limit in which to seek those public law remedies. In so far as specific paragraphs of the appellant’s claims were concerned (paras. 14, 24 and 24A), Donnelly J held that those did not disclose a reasonable cause of action: para. 24 and the first part of para. 24A were correctly dismissed on the basis that they did not comply with the time limits in Order 84, rule 21 which apply by analogy, and in terms of paragraph (b) of para. 24A that was a claim similar to para. 14 and did not disclose a reasonable cause of action. Donnelly J held that the motion judge did not err in failing to amend the paragraphs to permit of a cause of action. Donnelly J held that it would be inimical to the interests of the administration of justice and prejudicial to the State to permit an amendment at such a late stage.

Donnelly J dismissed the appellant’s appeal. Donnelly J held that, given that the appellant had been entirely unsuccessful in his appeal, the respondents were entitled to their costs of the appeal, those costs to be adjudicated in default of agreement.

Appeal dismissed.

JUDGMENT of Ms. Justice Donnelly delivered this 5th day of May, 2022

Introduction

1 In July 2010, the plaintiff issued plenary proceedings that:-

“[i]n very broad terms, … 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.” (From para. 4 of the High Court judgment, Kenny v. Minister for Agriculture [2013] IEHC 520).

2 The majority of the claims made by the plaintiff refer to matters concerning his animals alleged to have occurred in the 1990s or in the year 2000. Laffoy J. dismissed the entirety of the plaintiff's claims on foot of the defendants/respondents' (hereinafter “the State”) motion because a) the bulk of the claims (paras. 7, 8, 9,10, 11, 12, 13, 14, 15, 16, 16A, 17, 17A, 18, 19, 20, 21, 22, 23, 24, 25 and 26) were statute barred and b) the balance of the claims were public law claims that had not been brought promptly or within the time limits provided in Order 84, rule 21 of the Rules of the Superior Courts, 1986 (as amended) (“RSC”). Laffoy J. also held in her judgment, although did not so order, that certain claims of the plaintiff could also be dismissed on other grounds such as that the pleadings did not plead any known cause of action.

The Appeal Process

3 The plaintiff now appeals against the judgment and order of the High Court. The passage of time since that judgment is explained by the following events. The plaintiff was represented by solicitor and counsel at all times in the High Court. In December 2013, an appeal was made to the Supreme Court in the ordinary manner and a Book of Appeal was filed in April 2014. In June 2014, the solicitors for the plaintiff sought further time for filing a certificate of readiness as counsel was unable to continue in the case. In December 2014, it was indicated that this appeal fell within the class of appeals to be heard and determined by the Court of Appeal in accordance with Article 64 on the establishment of this Court. In January 2015, the Chief State Solicitor's Office (“the CSSO”) on behalf of the defendants/respondents (hereinafter “the State”) wrote to the plaintiff's then solicitors seeking a certificate of readiness and submissions. A notice of change of solicitors was received.

4 In May 2018, directions were given by the Court of Appeal permitting 10 weeks for the filing of the plaintiff's submissions and a date in November 2018 was set to fix a hearing, which date was vacated; no submissions had been received by that date. In July 2019, the Court indicated that the matter would be listed in a call over of all pending Article 64 cases. In that month, the new solicitors wrote to say that they would be coming off record. At the hearing the plaintiff's son appeared at the call over and said his father had been ill and that they were having difficulties with the solicitor on record. The plaintiff was given 20 weeks to file submissions. In November 2019 there was a notice of discharge of solicitor filed in the Court of Appeal. In December 2019 the plaintiff filed submissions which were personally signed by him. On the 20th December, 2019 the plaintiff's son appeared on behalf of the plaintiff and said he would be acting as a MacKenzie friend. The matter was put back to the 17th January, 2020 to confirm the length of the appeal. The State were given 10 weeks to file submissions. In January 2020 a date for hearing of the 18th June 2020 was fixed.

5 In February 2020 the plaintiff brought a motion seeking leave to adduce new evidence. This was refused.

6 In a call over in May 2020 it was indicated that the case would proceed remotely but that if the plaintiff wished, he could make contact with the Court of Appeal office with a view to applying to change that. The plaintiff did not appear but was informed of this. The plaintiff's son informed the CSSO by telephone that he did not wish to have a remote hearing. The CSSO informed the Court office and the appeal date was vacated.

7 In February 2021, a new hearing date for the 13th May, 2021 was fixed. At the call over in March 2021 the Court was informed by the CSSO that the plaintiff's son had emailed the CSSO to say that the day before he had been sent by his GP to the hospital. The Court gave directions for the hearing, including the filing of books by the CSSO. The Court directed that the plaintiff may apply for a hybrid hearing. In April 2021, the CSSO sent appeal books electronically to the plaintiff (and hardcopies in May 2021) and filed a copy with the Court of Appeal in April 2021.

8 A series of emails between the Court office and the plaintiff and the Court and both parties followed. Initially the plaintiff sought to apply for an adjournment on the basis of a medical report which was not to be disclosed to the CSSO. The Court indicated this was not appropriate. In due course, on foot of a further medical report disclosed to the CSSO the plaintiff sought a further adjournment. The plaintiff sought a physical hearing due to his hearing issues and lack of knowledge around technology. The Minister left the matter of the adjournment to the Court and the Court decided in view of the report and the attitude of the Minister that it would adjourn the matter but would do so on the basis that there would be no further adjournment save in exceptional circumstances which were fully evidenced. The Court then fixed the earliest date which was the 12th January, 2022 for hearing.

9 At the call over in November 2021 there was no appearance by the plaintiff or his son. On the 4th January, 2022, the plaintiff's son sent an email saying that neither he nor his father could attend due to Covid-19 and were seeking an...