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

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 05 May 2022
• Neutral Citation: [2022] IECA 103
• Court: Court of Appeal (Ireland)
• 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

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 adjournment. The CSSO consented to the adjournment but asked for the earliest hearing date to be fixed. This was fixed for the 10th March, 2022.

10 On the 22nd February, 2022 the plaintiff's son sent another email saying that he was unable to attend on the basis of his own health issues. The plaintiff's son sent a report to the Court. The Court listed the hearing of the application for an adjournment on the 3rd March, 2022. The plaintiff's son said that he was unable to attend and requested the Court to grant an adjournment and enclosed a medical report. The Court of Appeal heard the application and the State opposed an adjournment. This was refused by the Court. The Court indicated it would permit the plaintiff's son to appear for his father in the particular circumstances that presented. The State made no objection to that course of action.

11 In due course, the hearing on the 10th March, 2022 proceeded. The plaintiff's son appeared in person and presented the plaintiff's appeal without difficulty. He displayed a huge degree of familiarity with the facts of the case. He also informed the Court that his father would be in a condition to give evidence if the matter was remitted to the High Court for hearing. Given that he was appearing for his father, I will refer to the arguments made by him as the plaintiff's arguments.

The Claims made in the High Court Proceedings

12 In her judgment, Laffoy J. outlines the factual and legal bases of the plaintiff's claims and it is unnecessary to repeat in detail the nature of those claims. In brief, the Statement of Claim commences with claims that the Minister for Agriculture and Food (“The Minister”) wrongfully withheld the plaintiff's full entitlement to monies under various Community Aid payment schemes (headage payments) between 1991 to 1997. From paragraph 7 up to paragraph 12, the claims concern matters dating from the 1990s. Paragraphs 15,16 and 17 deal with claims related to statements in the Dáil in 1965 by the then Minister with responsibility for the Diseases of Animals Bill, regarding the nature of the compensation provisions on the control of bovine tuberculosis and bovine brucellosis. It is claimed that this amounted to a promise giving rise to a legitimate expectation on behalf of the plaintiff. Paragraphs 18, 19, 20, 21, 22 and 23 deal with the claims relating to alleged breaches of EU Directives but all the underlying factual matters are events which occurred in the 1990s or the year 2000. Paragraphs 13 and 14 contain alleged breaches by the Minister of two aspects of “the purposes of” the Act of 1966 regarding both a compensation scheme and an alleged prohibition on other charges related to inspections.

13 Paragraph 14 (as amended) specially pleads that on the 28th September, 2009, the Minister deducted from the payments due to the plaintiff under the Single Farm Payment/Disadvantaged Areas Scheme monies the sum of €155.32, in respect of “Department testing fees”. Paragraph 24 concerns the issuing of a District Court summons against the plaintiff in respect of the TB scheme and the brucellosis scheme in June 2007. Paragraph 24A (as inserted by amendment) concerns a claim that the Minister “unlawfully deducted the sum of €518 from the plaintiff's 2009 Single Farm Payment/Disadvantaged Areas Scheme payment on a wrongful basis.” Paragraphs 25 and 26 asserted in general terms the claims based upon what was set out in the earlier paragraphs.

The Proceedings before the High Court

14 The plaintiff issued his plenary summons on the 16th July, 2010 and a statement of claim was delivered on the 11th August, 2010. Ultimately, a third Statement of...