Rafferty & Elmore v Min for Agriculture and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian McGovern
• Judgment Date: 31 October 2008
• Neutral Citation: [2008] IEHC 344
• Docket Number: [No. 18343P/2001]
• Court: High Court
• Date: 31 October 2008

[2008] IEHC 344

THE HIGH COURT

[No. 18343P/2001]

[18406P/2001]

Rafferty & Elmore v Min for Agriculture & Ors

BETWEEN

BRENDAN RAFFERTY

PLAINTIFF

AND

THE MINISTER FOR AGRICULTURE AND FOOD AND RURAL DEVELOPMENT, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

BETWEEN

JOHN ELMORE

PLAINTIFF

AND

THE MINISTER FOR AGRCULTURE, FOOD AND RURAL DEVELOPMENT IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

DISEASES OF ANIMALS ACT 1966

DISEASES OF ANIMALS ACT 1966 S17

FOOT-AND-MOUTH DISEASE ORDER 1956 SI 324/1956 ART 22

DISEASES OF ANIMALS ACT 1966 S10

DISEASES OF ANIMALS (AMENDMENT) ACT 2001 S4

DISEASES OF ANIMALS ACT 1966 S11

DISEASES OF ANIMALS ACT 1966 SCHED 1 PART III CLASS A

DISEASES OF ANIMALS ACT 1966 S17(2)

DISEASES OF ANIMALS ACT 1966 S58

DISEASES OF ANIMALS ACT 1966 S58(2)

DISEASES OF ANIMALS ACT 1966 S18

DISEASES OF ANIMALS ACT 1966 S17(1)

HOWARD v COMMISSIONERS OF PUBLIC WORKS 1994 1 IR 101

CONSTITUTION ART 40.3

CONSTITUTION ART 43

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 43.1.1

CONSTITUTION ART 43.1.2

HEANEY v IRELAND 1994 3 IR 593

IARNRÓD ÉIREANN v IRELAND 1996 3 IR 321

TOUHY v COURTNEY 1994 3 IR 1

ART 26 OF THE CONSTITUTION & THE HEALTH (AMDT)(NO 2) BILL [2004] 2005 1 IR 105

IN RE ART 26 OF THE CONSTITUTION & PART v OF PLANNING & DEVELOPMENT BILL 1999 2000 2 IR 321

JAMES v UNITED KINGDOM 1986 8 EHRR 123

PLATAKOU v GREECE EHCR UNREP 11.1.2001 APP NO. 38460/97

THE HOLY MONASTERIES v GREECE EHCR UNREP 9.12.1994 APP NO. 13092/87; 13984/88

LITHGOW & ORS v UNITED KINGDOM EHCR UNREP 8.7.1986 APP NO. 9006/80; 9262/81; 9263/81;9265/81; 9266/81; 9313/81; 9405/81

ROONEY v MIN FOR AGRICULTURE 1991 2 IR 539

CONSTITUTIONAL LAW

Property rights

Statute - Validity - Foot and mouth cull - Legislation providing for compensation - Applicants compensated above market value of culled animals - Applicants asserting additional consequential loss - Proportionality principle - Statutory interpretation - Meaning of compensation - Whether necessary to further compensate for consequential loss - Whether compensation fair and reasonable - Whether legislation required compensation for consequential loss - Whether legislation proportionate protection of property right - Whether Constitution required compensation for consequential loss - Whether distinction between compensation on basis of finding of fault and compensation to ameliorate hardship appropriate - Howard v Commissioners of Public Works [1994] 1 IR 101 applied; Heaney v Ireland [1994] 3 IR 593, Iarnród Éireann v Ireland [1996] 3 IR 321, Tuohy v Courtney [1994] 3 IR 1, In re the Planning and Development Bill 1999 [2000] 2 IR 321, In re the Health (Amendment) (No 2) Bill 2004 [2005] 1 IR 105, James v United Kingdom [1986] 8 EHRR 123, Platakou v Greece (Application 3 8460/97) (Unrep, ECHR, 11/01/2001), The Holy Monasteries v Greece (Unrep, ECHR, 09/12/1994), Lithgow v UK(Unrep, ECHR, 08/07/1986), Rooney v Minister for Agriculture and Food [1991] 2 IR 539, Pine Valley Developments v Minister for the Environment [1987] IR 23 and The State (Sheehan) v Ireland [1987] IR 550 considered - Diseases of Animals Act 1966 (No 6), ss 10, 17, 18, 20, 56 & 58 - Diseases of Animals (Amendment) Act 2001 (No 3), s 4 - Interpretation Act 2005 (No 23), s 5 - Foot and Mouth Disease Order 1956 (SI 324/1956), r 22 - Constitution of Ireland 1937, arts 3, 40 & 43 - Claim dismissed (2001/18343P - McGovern J - 31/10/2008) [2008] IEHC 344

Rafferty v Elmore

JUDGMENT of

Mr. Justice Brian McGovern

1 delivered on the 31st day of October. 2008

2 1. The plaintiffs in these cases are sheep farmers on the Cooley Peninsula in County Louth. In February 2001, there was an outbreak of foot and mouth disease in the United Kingdom. Towards the end of that month, the outbreak spread from mainland Britain into Northern Ireland where it occurred in and around Meigh in County Armagh. This was in close proximately to the plaintiffs' sheep farms. The outbreak of foot and mouth disease was taken very seriously by the governments of the United Kingdom and of Ireland respectively, and posed a significant risk to the health of farm animals. The culling of animals took place in affected areas and on adjoining lands. As part of the Government's strategy to prevent the spread of the disease, it was deemed necessary to cull large numbers of animals in the Cooley Peninsula, including sheep flocks belonging to the plaintiffs.

3 2. It is accepted by the plaintiffs that the cull was necessary in the public interest. It is also accepted by them that there were systems of compensation put in place by the State, under the Diseases of Animals Act, 1966. The plaintiffs received compensation following the culling of their sheep flocks, but they maintain that they did not receive proper compensation. They argue that the monies received by them did not adequately compensate them for their losses. Specifically, they claim that as their flocks were not infected, but were required to be culled in the public interest, they are entitled to compensation, which allows for consequential loss and not merely the market value of the animals culled. Furthermore, they assert that if the relevant legislation only permits compensation amounting to market value that this is an unjust attack on their property rights and that s. 17 of the Diseases of Animals Act 1966 (as amended), is unconstitutional. It is accepted by all parties to the litigation that animals in the affected zone had to be culled quickly and that it was desirable that the owners of animals culled should be compensated without undue delay. This required people to make decisions quickly. On the one hand, the valuers had to arrive at a figure of compensation for the culled animals. On the other hand, the owners of those animals had very little time to weigh up the value of the offers being made. While this was not an ideal situation, it was probably unavoidable in these circumstances. It is clear from the evidence that after initial valuations were made, there was some revision of these values at a later date. This was an attempt to deal with a matter in an equitable fashion.

4 3. In reaching a valuation of the animals culled, the defendant sought, through its valuer, to arrive at a reasonable market value for each animal. The plaintiffs claim that the defendant did not individually assess each animal for the purpose of determining what market value was. In particular, the plaintiffs claim that no account was taken of the following matters:-

5 (i) The fact that certain ewes had lambsin utero and were in advance stages of pregnancy;

6 (ii) The fact that the eweprimia were lost as a consequence of the cull, which resulted in significant loss of income to the plaintiffs;

7 (iii) The fact that significant additional costs were involved in introducing a new flock. In the case of Mr. Elmore it is claimed that this was a particular problem as his flock was "hefted" and grazed commonage on the hillside;

8 (iv) The fact that there is a significant increase in mortality rate when a new flock is introduced;

9 (v) That the plaintiffs' businesses and lives were disturbed in the most fundamental way;

10 (vi) The fact that the plaintiffs suffered trauma and distress as a result of the cull.

The defendants answer each of these points as follows:-

11 (i) Ewes and lambs were valued separately. Some of the ewes were in lamb but the valuation ascribed to them was in either case generous. In both incidents the value given was in excess of "market value".

12 (ii) Eweprimia are paid on the basis of the number of sheep held by the farmer. The purpose of the premium is to subsidise the cost of a sheep. All ewe primia for 2001 were in fact paid and primia were never intended to compensate a farmer for the costs of maintaining non-existent sheep.

13 (iii) Mr. Elmore has exaggerated the additional costs claimed in respect of having to deal with sheep which were not fully hefted. The compensation paid in respect of the culled sheep was generous and more than took into account any such issue, if such an issue had to be taken into account. The defendants deny that such an issue had to be taken into account under the scheme.

14 (iv) The defendants do not accept that there was a significant increase in mortality rate when a new flock was introduced. Insofar as some difficulties may have arisen. The plaintiffs were more than adequately compensated for this in the price which was given for the culled sheep.

15 (v) The defendants were not tortfeasors and had committed no wrong, which required to be compensated. The question of general damages does not arise under the compensation scheme. Many other people were affected by the restrictions imposed by the foot and mouth outbreak, both in the agricultural sector and the tourism sector and these people were not entitled to compensation. The compensation scheme has been administered in accordance with the Diseases of Animals Acts.

16 (vi) The cull was necessary to prevent the further spread of foot and mouth disease. The cull and compensation scheme were provided for by both Irish Law and European Law. There is no general principle, either in Irish Law or European Law, that the many individuals and/or businesses that suffered during the foot and mouth outbreak and as a result of the cull and restrictions arising therefrom, should, as a matter of law be compensated by the State. The defendants argue that no wrong has been committed by the State.

17 4. It is against the above background that the plaintiffs' claims arise. There are other claims which have been made on behalf of the farmers in the Cooley Peninsula and it is agreed that these claims should be dealt with first to establish what principles apply.

18 5. The Foot and Mouth Disease Order, 1956 (S.I. No. 324/...