Sfar v The Minister for Agriculture

• Jurisdiction: Ireland
• Judge: Mr. Justice Twomey
• Judgment Date: 20 June 2016
• Neutral Citation: [2016] IEHC 348
• Date: 20 June 2016
• Court: High Court
• Docket Number: [2014 No. 185JR] 2014 No. 614JR]

[2016] IEHC 348

THE HIGH COURT

JUDICIAL REVIEW

Twomey J.

[2014 No. 185JR]

2014 No. 614JR]

BETWEEN:

DONA SFAR

APPLICANT

-AND-

THE MINISTER FOR AGRICULTURE, THE ATTORNEY GENERAL

AND

IRELAND

RESPONDENTS

BETWEEN:

DONA SFAR

APPLICANT

-AND-

THE MINISTER FOR AGRICULTURE, THE ATTORNEY GENERAL

AND

IRELAND

RESPONDENTS

-AND-

HUMAN RIGHTS COMMISSIONER

NOTICE PARTY

Agriculture – S.42 of the Animal Health and Welfare Act, 2013 – Non-compliance with requirements of welfare notice – European Council Directive 98/58/EC – Grounds for availability of Judicial review – Inquiry into professional misconduct – Fair procedures – s. 5 (1) of European Convention on Human Rights ('ECHR') Act, 2003

Facts: The applicant, by way of the two judicial review proceedings, sought certain declaratory reliefs against the first named respondent, the prominent of which are a declaration that s. 38 (1) and s. 38 (6) of the Animal Health and Welfare Act, 2013, was incompatible with the ECHR Act, breach of right of fair procedures owing to seizure of her animals by the officers of the first named respondent and a claim of professional misconduct against the veterinary practitioner.

Mr. Justice Twomey refused to grant the reliefs sought by the applicant. The Court held that the initiation of judicial review for challenging the compatibility of s. 38 (1) and s. 38 (6) of the 2013 Act was inappropriate as s. 5(1) of the ECHR Act explicitly stated that an applicant could only have recourse to judicial review in the absence of availability of any legal remedy. The Court observed that entry on the premises of the applicant and seizures of her animals had been made pursuant to several visits made by the officials of the first named respondent after giving an opportunity to the applicant to fulfil the requirements as set out under the welfare notice and thus, the applicant had been afforded due process. The Court opined that it was not fair for the applicant to have initiated a claim of misconduct against professionals engaged to carry out assigned duties as they were the persons upholding integrity, professional expertise without any allegation of bias or proven misconduct. The Court held that one should be cautious before making a claim of professional misconduct without taking an expert advice as it had serious repercussions of damaging one's goodwill and reputation. The Court observed that since the applicant was a serious litigator having instituted various judicial review application without any costs being recovered by the State, it would be advisable for the applicant to obtain consent of the Court prior to initiate a claim against the State body in public interest.

JUDGMENT of Mr. Justice Twomey delivered on the 20th day of June 2016

Introduction

1 In these overlapping judicial review applications the Minister for Agriculture, Food and the Marine ('Department of Agriculture') and the Attorney General are the common respondents. These proceedings involve a challenge to the actions of the Department of Agriculture and ultimately the seizure of animals which were owned by the applicant, where there was evidence of serious suffering to those animals on the applicant's property.

2 The applicant unsuccessfully challenged the said actions in the District Court. She appealed that decision in the Circuit Court, but was unsuccessful. She also sought to challenge the actions indirectly, by seeking to have the veterinary inspector, who carried out the relevant actions on behalf of the Department of Agriculture, found guilty of professional misconduct by the Veterinary Council. This was also unsuccessful. She now seeks to challenge the actions of the Department of Agriculture in the High Court. The applicant is a lay litigant and the Department of Agriculture produced evidence to the Court of the fact that the applicant has instituted 22 sets of judicial review proceedings since 1999, which raises the issue of the effect of serial lay litigants on scarce court resources, as well as the issue of the appropriateness of making of a claim of professional misconduct against a professional where a litigant disagrees with the decision taken by that professional.

Factual background to both Judicial Reviews

3 The applicant kept sheep and pigs on her property in Kilcurry, Co. Louth. The first set of judicial review proceedings (2014/185JR) arose from inspections of those animals on behalf of the Department of Agriculture which were carried out in March and April of 2014 on the applicant's property. The second judicial review (2014/614JR) arises from the issue to the applicant of a Welfare Notice by the Department of Agriculture on the 21st July, 2014, regarding the state of the animals and the subsequent seizure of the animals on the 8th August, 2014.

4 The applicant lives in Dundalk, but she owns property in Kilcurry, Co. Louth, where she kept sheep and pigs until the seizure, which is the subject of these proceedings. The first inspection by the respondent of the applicant's property at Kilcurry, Co. Lough occurred on the 7th March, 2014. It arose from concerns expressed by members of the public regarding the welfare of pigs and sheep on the applicant's property. This inspection was conducted by Mr. O'Brien-Lynch, a registered veterinary practitioner and a Veterinary Inspector in the Department of Agriculture.

5 The Report, produced by Mr. O'Brien-Lynch, of this inspection is dated 13th March, 2014. The Report refers to the presence of a sheep carcase on the applicant's property adjacent to the water-course, which he estimated had been there for two to four weeks. Mr. O'Brien-Lynch refers to the unnecessary suffering of the pigs due to a lack of water supply, shelter and bedding and the fact that there was a significant risk of injury to the pigs and sheep from a road traffic accident as there was a lack of biosecurity on the holding. In this Report, he also refers to a lame sow suffering unnecessarily and requiring veterinary attention as well as noting the presence on the applicant's property of filthy debris and broken pieces of wood and sharp metal objects some with rusty nails protruding from them.

6 In this Report, his recommendations were, inter alia, for a Welfare Notice to be served on the applicant requiring her to provide immediate and secure biosecurity measures for the animals, to provide an immediate and constant supply of clean water for all the animals and to provide veterinary attention to the lame animals. He also recommended that all pigs be disposed of to a registered herd owner within 10 days and all sheep be disposed of to a registered flock owner within 10 days and that the sheep carcase be removed to a registered knackery within 3 days.

7 On the 20th March, 2014, Mr. O'Brien-Lynch visited the premises for a second time. He noted that that the conditions were similar to those witnessed on his first visit and he also noted that one of the sheep appeared to be emaciated. He visited the applicant at her home in Dundalk immediately after this visit and relayed his concerns. He outlined the various actions which needed to be taken by her, i.e. the provision of a permanent supply of clean fresh water, clean dry bedding, adequate shelter, adequate feed, secure fencing and veterinary attention.

8 On the 17th April, 2014, Mr. O'Brien-Lynch visited the applicant's property for a third time. On this visit, Mr O'Brien–Lynch continued to have concerns about the welfare of the animals since, inter alia, on the provision of water, by him, to the pigs, they drank voraciously indicating that they were very thirsty and the sheep carcase had not been removed.

9 On 17th July, 2014, Mr O'Brien–Lynch visited the premises for a fourth time. His inspection revealed that one sheep required immediate veterinary treatment as it was emaciated and suffering from blow-fly strike while four other sheep had inadequate feed and water provision and required shearing urgently. Mr. O'Brien Lynch had some telephone conversations with the applicant after this visit. He raised his concerns regarding the need for some of the animals to have veterinary care. As a result of the conversations and visits and return visits to the applicant's property, Mr. O'Brien–Lynch remained concerned about the welfare of the animals and as a consequence Mr. O'Brien Lynch formed the opinion that he should serve an Animal Health and Welfare Notice (a 'Welfare Notice') as provided for in section 42 of the Animal Health and Welfare Act, 2013 (the '2013 Act') on the applicant. This was served on the 21st July, 2014.

10 The Welfare Notice stated that it was the opinion of Mr. O'Brien-Lynch that the applicant breached her duty to protect animal welfare, caused unnecessary suffering, neglected or was reckless regarding animal welfare, was not capable of taking care of animals and the conditions under which animals are kept breached the 2013 Act. This Welfare Notice required the applicant, inter alia, to:-

(a) provide immediate veterinary care to certain of the animals;

(b) have sheep sheared;

(c) provide the animals with a constant supply of water and food;

(d) provide the pigs with adequate shelter and the animals with adequate fencing and freedom from injury.

11 On the 22nd July, 2014, Mr. O'Brien-Lynch visited the lands for a fifth time and became aware that one of the sheep was missing. When he located the sheep he found that he was suffering from severe maggot infestation following blow fly strike and was in considerable distress. The sheep was immediately euthanised.

12 On the 8th August, 2014, Mr. O'Brien-Lynch returned for a sixth inspection of the animals on the applicant's property. His significant concerns had not been addressed by the applicant and for this reason the animals were seized and delivered to an animal shelter where...