UNITED KINGDOM- LANDMARK COURT DECISION.
IT HAS been a bad time both for farmers and for agricultural litigation solicitors. Mr Justice Tugendhat has handed down his judgment in the foot and mouth case, D Pride v Institute for Animal Health – and the Court of Appeal has also given judgment in the TB scale-values case, Partridge Farms v SSEFRA.
Both involve, in my view, decisions reached by the judiciary by putting policy ahead of a consideration of the actual merits or the justice of the situation.
In the Pride v Institute of Animal Health case, some 14 claimants of different sorts were all claiming for damages which resulted from the escape of the foot and mouth disease virus from the Institute of Animal Health at Pirbright. The first to the seventh claimants, who were actually infected with the disease, settled their claims before the hearing, which resulted in the judgment. The eighth to 14th claimants did not actually get infected, but suffered economic losses of different sorts.
They claimed against the IAH, Merial and Defra for negligence, nuisance and for a civil wrong known as Rylands v Fletcher, which arises where something escapes which is of a non-natural sort and causes loss.
There is no doubt whatsoever that financial loss was caused to them all in different ways, and the only issue was whether or not the court would recognise that there was a duty to prevent that loss being caused and thus the elements of the civil wrong of negligence, Rylands v Fletcher, or nuisance were present. To be fair, the National Farmers’ Union – which backed this case – put into court as good a legal team as you could have thought of, including two Queen’s Counsel, but the judge’s decision was that there was no real prospect of the case succeeding and he struck it out. He also struck out the claim against Defra.
Whether it proceeds further on appeal is something I cannot say. The Courts have in the past 15 years defined the law of negligence in such a way that they can, in effect, give rise to a duty wherever they feel like it by manipulating the criteria for a duty being owed. It was a pure policy decision not to find a duty in favour of the eighth to 14th claimants, because this would give rise to potentially onerous financial responsibilities on Government.
A similar approach seems to have been adopted by Lord Justice Lawrence Collins in the Partridge v SSEFRA case.
This was the appeal from the originally successful decision of Lord Justice Stanley Burnton in July 2008, who indicated in his judgment that the table values scheme for TB compensation was discriminatory against higher-value livestock owners, and thus illegal under European law.
The court in this case, in a fairly lengthy judgment of one Lords Justice – only one paragraph of which seems to be directly of importance – indicated that there was no discrimination. This is because they decided that all TB-infected livestock were worth the same (they thought this was £235 on average) and thus if the Government decided to pay more than this figure, it was in fact doing the livestock owners a favour and not discriminating against them at all.
What this judgment misses is the fact that the minister had voluntarily agreed to pay compensation, which had the objective of approximating the compensation to market value. For this reason the minister designed a scheme with his officials which had some 47 different categories of compensation.. If he was only to pay something on an ex-gratia basis about the salvage value, then there was no need for the 47 categories.
The case was predicated on the basis that irrationality had taken place in deciding which categories to utilise, particularly in relation to the organic sector and the higher-value sector.
The only way of appealing this judgment is to petition the House of Lords, and I know the NFU is taking advice on this issue at present.
These cases show the innate conservatism and establishment-mindedness of the judiciary, who are not willing to impose financial responsibilities on Government unless they have to as a last resort. It will be interesting to see if either case proceeds further up the appeals process and fares better if appealed.
Tim Russ leads the agricultural team at Westcountry lawyers Clarke Willmott
