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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Rooney v. Minister for Agriculture, Food and Forestry & Ors [2004] IEHC 305 (13 July 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/305.html Cite as: [2004] IEHC 305

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HC 305/04

THE HIGH COURT

RECORD NO. 1995 No. 8836P

BETWEEN/

JOHN ROONEY

PLAINTIFF

AND THE MINISTER FOR AGRICULTURE, FOOD AND FORESTRY, THE MINISTER FOR FINANCE, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Judgment of Miss Justice Laffoy delivered on the 13^th day of July, 2004.

The Plaintiff's case as pleaded

These proceedings were initiated by plenary summons which issued on 8^th November, 1995. The plaintiff, who is a farmer, drafted the pleadings, motions and affidavits which he used in these proceedings and appeared in person. While the plaintiff has a law degree and was called to the Bar in England, he is to all intents and purposes a lay litigant. The plaintiff's case, as pleaded in the statement of claim delivered by him on 22^nd July, 1996, is as follows:

"1. The Plaintiff is a Farmer. The first, second and third Defendants are actively involved in the government through the workings of the government or in the offering of legal advice to the government.

2. The statement of claim delivered on the 6^th day of November, 1989 by John Rooney in Rooney v. The Minister for Agriculture and Food [1987] No. 1120 Sp. Ct. 6 is included in this statement of claim (copy duly signed, annexed to same).

3. Statement of claim delivered on the 2^nd day of March, 1993 by John Rooney in Rooney v. The Minister for Agriculture and Food 1993 No. 706P is included in this statement of claim (copy duly signed, annexed to same).

4. That the Bovine TB Eradication Scheme is being operated, contrary to Bunreacht na hÉireann, contrary to the law of the European Union and Directives 64/432/EEC (as amended); 77/391/EEC, contrary to the European Convention for the Protection of Human Rights and Fundamental Freedoms and, mal fides is specifically alleged.

5. That the Bovine TB Eradication Scheme as operated under the Bovine Tuberculosis (Attestation of the State and General Provisions) Order, 1989, is being operated contrary to the objectives of the Diseases of Animals Act, 1966 (a consolidating Act) and further that the Bovine Tuberculosis (Attestation of the State and General Provisions) Order, 1989, is ultre vires the Disease of Animals Act, 1966 and, that mal fides is specifically alleged.

6. The Plaintiff's cattle herd has been unlawfully restricted from the 7^th day of April, 1993 and, mal fides is specifically alleged.

7. That the Defendants, their servants or agents have maliciously interfered with and damaged the Plaintiff's farming business causing loss and damage and further that the Plaintiff has been deprived of the peaceful enjoyment of his possessions contrary to Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.

8. That the Defendants, their servants or agents have breached the Plaintiff's constitutional right to privacy in their manner of dealing with and passing of private and confidential sensitive constitutional communications dated 8^th March, 1994.

9. That the Defendants, their servants or agents have damaged the Plaintiff's reputation causing loss and damage.

10. That the Defendants, their servants or agents have trespassed upon the Plaintiff's property and chattels causing loss and damage.

AND THE PLAINTIFF CLAIMS

(1) For loss and damages suffered at the hands of the Defendants, their servants or agents.

(2) Damages for Defendants, their servants or agents breaching of the Rule of Law.

(3) Costs: being time and monies expended in preparing for litigation."

The 1987 proceedings referred to in para. 2 of the statement of claim resulted in a judgment of the Supreme Court delivered on 19^th December, 1991, which is reported as Rooney v. Minister for Agriculture and Food [1991] 2 I.R. 539. For the sake of brevity, I will refer to these proceedings as "Rooney No.1".

The relief claimed in these proceedings is damages. In broad terms, damages are claimed under two headings. First, there is a claim for damages for loss arising from the alleged unlawful restriction of the plaintiff's herd and trespass to his property and chattels. Secondly, damages are claimed in relation to the allegation made in para. 8 of the statement of claim, which is a discrete allegation which is indirectly linked to the remainder of the allegations made by the plaintiff. That allegation will be considered separately at the end of this judgment.

In their defence delivered on 26^th September, 1996, the defendants pleaded that the plaintiff's claims "are barred and/or amount to an abuse of the Court process by reason of the principle of res judicata and/or issue estoppel and/or are the subject of existing and separate proceedings". Specifically it was pleaded that the plaintiff is not entitled to include the claims in Rooney No. 1 and in the 1993 proceedings in these proceedings. In the course of the hearing of these proceedings, the plaintiff acknowledged that he could not, in these proceedings, relitigate the issues raised in Rooney No. 1 or in the 1993 proceedings. The plaintiff informed the court that the 1993 proceedings "are no longer in existence". Without prejudice to the res judicata plea, the defendants traversed each allegation made by the plaintiff. Further, it was pleaded that the acts of the defendants were justified, having been carried out in accordance with lawful authority conferred by the Oireachtas, the Constitution and European legislation. Finally, it was pleaded that any loss or damage which the plaintiff has incurred was caused solely by his own acts and omissions.

The foregoing was the state of the pleadings when the hearing of these proceedings commenced on 11^th May, 2004. The defendants had not sought particulars of any matter alleged by the plaintiff in his statement of claim. In particular, particulars had not been sought of the manner in which it was alleged that the "Bovine TB Eradication Scheme" is being operated contrary to the Constitution, the law of the European Union or the European Convention on Human Rights (the European Convention) or the objectives of the Diseases of Animals Act, 1966 (the Act of 1966). Particulars were not sought of the basis on which it was alleged that the plaintiff's herd was unlawfully restricted, nor were particulars sought of the bases on which the various allegations of bad faith were founded. During the course of the hearing, which ran for twelve days, the bases on which the plaintiff was alleging wrongdoing on the part of the defendants and claiming compensation were identified.

During the course of the hearing, it became apparent that the defendants had not fully complied with orders for discovery. I am satisfied that the failure was remedied over the Whit Vacation and that the plaintiff has not been prejudiced.

Decision of the Supreme Court in Rooney No. 1.

The factual background to Rooney No. 1 was that in 1984 twenty of the plaintiff's cattle were slaughtered pursuant to the Bovine Tuberculosis (Attestation of the State and General Provisions) Order, 1978 (the 1978 Order) then in force as they were reactors. The plaintiff was paid certain monies by the first named defendant (the Minister) in respect of these animals pursuant to an extra-statutory scheme which the Minister had established. In 1985 a further twenty-six animals were slaughtered. No monies were paid in respect of these as the plaintiff had failed to comply with certain conditions set out in the extra-statutory scheme. The plaintiff issued proceedings claiming that he was entitled to compensation in accordance with the provisions of the Act of 1966, as opposed to the payment of grants pursuant to the extra-statutory scheme.

The proceedings in Rooney No. 1 took an unusual turn. On an appeal from an order of the High Court striking out the claim against certain of the parties named as defendants, the Supreme Court directed that the proceedings against all save the Minister, the Minister for Finance, the Taoiseach, Ireland and the Attorney General be stayed pending the determination of the substantive issue of law raised in the claim being resolved in the High Court by way of the "special case" procedure pursuant to Order 34 of the Rules of the Superior Courts, 1986. Order 34, rule 2 provides that, if it appears to the court that there is in any cause or matter a question of law which it would be convenient to decide before any evidence is given or any question of fact is tried, the court may direct such question of law to be raised for the opinion of the court by special case and all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed.

The issues raised and tried on the special case were the following claims by the plaintiff:

(1) For a declaratory judgment or order that the plaintiff was legally and constitutionally entitled to compensation under and in accordance with the Act of 1966 and in accordance with the 1978 Order and that the court grant him the remedy or relief of exemplary damages or what other relief the court should think fit; and

(2) That the system of grant payments as operated by the Minister in his implementation of the Act of 1966 through the disease eradication schemes is unconstitutional when used as an alternative to compensation or in a manner that fails to comply with the "compensation provisions" of the Constitution; and that self-disposal of reactor animals as per direction of the Minister does not diminish a herd owners' legal and constitutional right or entitlement to compensation or relieve the Minister of his duty to honour and safeguard such entitlement.

Those issues were tried as between the plaintiff and the Minister. The plaintiff's claims were dismissed in the High Court.

The provisions of the Act of 1966 which were primarily considered by the Supreme Court were ss. 20, 22 and 58. The Act of 1966 categorises animal disease as a Class A disease or a Class B disease. Bovine tuberculosis falls into the Class B category. Section 19 empowers the Minister, where it appears to him to be necessary for the purpose of eradication of any Class B disease, to make orders, inter alia, declaring an area in which he is satisfied that the disease is virtually non-existent, to be an attested or disease-free area. In the 1978 Order the State as a whole was declared to be an attested or disease-free area. Section 20 empowers the Minister to make, in relation to an attested or disease-free area, orders, including –

"(a) as to animals . . . affected or suspected of being affected or capable of affecting animals . . . with the relevant disease –

(i) authorising the taking of possession, by agreement, of the animals . . . on behalf of the Minister;

(ii) in default of agreement, securing and regulating the removal out of the area or slaughter of the animals . . .;

(iii) securing and regulating the isolation and maintenance of the animals . . . pending their being taken possession of on behalf of the Minister or removed out of the area or slaughtered;"

Section 22 provides that the Minister shall, subject to s. 58, pay compensation for animals taken possession of on his behalf pursuant to an order under s. 20. Section 58 provides that that section shall apply in relation to compensation under, inter alia, s. 22. Sub-section (2) of s. 58 provides as follows:

"The Minister, with the consent of the Minister for Finance, may by order –

(a) make provision for regulating the making and determination of applications for, and the mode of assessment and payment of, compensation;

(b) include provision for the fixing of compensation by agreement between the applicant and the Minister or, in default of agreement, by a valuer appointed by agreement between the applicant and the Minister or, in default of such agreement, by a valuer appointed by the Minister;

(c) include provision, in the event of the applicant disputing the determination of the application, for the settlement of the dispute by arbitration."

When Rooney No. 1 was being prosecuted no regulations had been made by the Minister under s. 58.

The respective positions of the plaintiff and the Minister on the appeal in Rooney No. 1 were summarised as follows by O'Flaherty J., (with whom McCarthy J. and Egan J. concurred) in the following passage in his judgment at p. 543:

"The plaintiff's case, put simply is that [the Act of 1966] provides the relevant machinery to enable him to receive compensation if the Minister would only activate the relevant provisions. The Minister's stance is that while he has put in place a system of grant payments subject to compliance with conditions contained in this scheme, these grants are separate from his entitlement to pay 'compensation' under the Act of 1966 and he is not obliged to activate the compensation provisions of the Act."

The case made by the plaintiff to the Supreme Court was amplified in the following passage of the judgment at p. 545:

"The plaintiff submits that if s. 58 was in operation then he would fare better by being able to seek agreement with the Minister for the fixing of compensation by, if necessary, having a valuer appointed by agreement between the Minister and himself or, in default of agreement, by a valuer appointed by the Minister or by a process of arbitration pursuant to s. 58, sub-s. (2)(b) and (c). This, he submits, would be more beneficial to him than the extra-statutory scheme which involves a unilateral element which means that the herd owner may have to take or leave what is on offer by way of grants as opposed to the more beneficial regime that would be in operation if there was a process of dialogue in seeking agreement between the parties and, ultimately, the possibility of resort to arbitration. This, of course, involves not only that the Minister should bring into operation s. 20 but that he should also 'by agreement' take possession of the diseased animals."

The Minister's response to the plaintiff's submissions are summarised in the judgment at p. 546 as follows:

"On behalf of the Minister it has been submitted that this scheme operates better to safeguard public funds and that if the Minister were to take possession of cattle under s. 20 he would be likely to fare less well financially than a herd owner who would bring his cattle directly to those conducting the factory carrying out slaughtering operations – human nature being what it is."

O'Flaherty J. concluded that if s. 20 and s. 58 were in operation it would be vastly more expensive than the scheme then currently in operation which itself was "a huge cost to the Exchequer". Having stated that this was at least a plausible reason for the operation of the extra-statutory scheme he continued:

"The court would only be entitled to review such a decision and course of action (embodied in the scheme) if it were satisfied that the decision and course of conduct was mala-fides – or, at the least, that it is involved in an abuse of power: see Pine Valley Developments v. Minister for the Environment [1987] I.R. 23. It may be that the court has no power to enjoin the Minister to make orders under s. 20 (cf. The State (Sheehan) v.The Government of Ireland [1987] I.R. 550) in any circumstances but it certainly had no power to do so in the absence of proof of mala-fides or abuse of power."

O'Flaherty J. held that the Minister was not obliged to operate the Act of 1966 since he had in place "a reasonable scheme for providing a measure of assistance to herd owners of diseased cattle".

On the basis of so holding, O'Flaherty J. held that it was not necessary to enquire into whether there is any constitutional requirement to provide compensation for herd owners who have diseased animals. However, he added the following obiter dictum:

"In any event, assuming that there is a constitutional requirement to provide for compensation in such circumstances, the Minister would only be obliged to act to provide compensation as far as practicable, having regard to the common good, and that means that he should act in accordance with the advice that he gets and having regard to other claims on public funds. Clearly he has, by the scheme in operation, in effect provided for this."

The Supreme Court dismissed the plaintiff's appeal.

At the hearing of these proceedings, the plaintiff referred the court to the commentary on Rooney No. 1 in J.M. Kelly: The Irish Constitution, 4^th Edition, at p. 2023. In the context of discussing the principle of independent assessment of compensation, which was affirmed by the Supreme Court in ESB v. Gormley [1985] I.R. 129, it was commented as follows:

"However, this point appears to have been overlooked in the later case of Rooney v. Minister for Agriculture and Food where the Supreme Court, speaking through O'Flaherty J., indicated that, if there was a constitutional obligation to compensate herd owners whose diseased cattle were slaughtered pursuant to [the 1978 Order], this obligation had been well met by the terms of an extra-statutory scheme authorising the Minister to make grants to affected farmers. Though O'Flaherty J. noted, with apparent approval, O'Hanlon J.'s classification of such payments as contractual – in McKerring v. Minister for Agriculture – he failed to address the essence of the plaintiff's complaint that the extra-statutory scheme dealt less favourably with the herd owner than a statutory scheme of compensation anticipated by s. 58 of the Diseases of Animals Act, 1966 because the former scheme involved a unilateral element whereby the herd owner might have to take or leave what was on offer by way of grants as opposed to the more beneficial regime that would be in operation if there was a process of dialogue in seeking agreement between the parties and, ultimately, the possibility of resort to arbitration. This last sounds much more like the type of arrangement envisaged in Gormley, a case not cited to the court."

The plaintiff, who conducted the appeal on the special case in person in the Supreme Court, confirmed that Gormley had not been cited in the Supreme Court, although he submitted that the transcript of the hearing in the High Court establishes that it had been cited at first instance.

The relevant legislative framework

The events to which these proceedings relate occurred between 1993 and 1996. While the Act of 1966 was still in place, article 13 of the 1978 Order had been declared ultra vires and invalid in Howard v. the Minister for Agriculture and Food [1990] 2 I.R. 260, in which judgment was delivered by Murphy J. on 3^rd October, 1989. By 1993 the 1978 Order had been replaced by the Bovine Tuberculosis (Attestation of the State and General Provisions) Order, 1989 (S.I. No. 308 of 1989) (the 1989 Order), which came into operation on 4^th December, 1989. In article 3 of the 1989 Order the State as a whole was again declared to be an attested or disease-free area. Following the coming into operation of the 1989 Order, the State's bovine tuberculosis eradication scheme (the scheme) was regulated in accordance with its provisions. The 1989 Order was expressed to be made pursuant to the powers conferred on the Minister by s. 3 of the Act of 1966.

No regulations were made under s. 58 of the Act of 1966 in the aftermath of the decision in the Howard case or the decision in Rooney No. 1, nor have any such regulations been made since. In the period 1993 to 1996, where a reactor was disclosed in a herd and slaughtered under the scheme, the herd owner received the carcase value of the animal from the registered meat factory in which it was slaughtered and was also paid a "top-up" grant under the extra-statutory scheme of the Minister subject to compliance with the conditions imposed.

Following the coming into operation of the 1989 order, a case similar to the case made by the plaintiff in Rooney No. 1, namely, that a herd owner is entitled to require that testing for bovine tuberculosis of his herd be carried out in accordance with ss. 20, 22 and 58 of the Act of 1966 was made, and rejected, in Grennan v. Minister for Agriculture and Food, in which judgment was delivered in this court by Murphy J. on 4^th October, 1995. In his judgment, Murphy J. stated as follows:

"The fact that the owner of an animal which is affected by tuberculosis or any other Class B disease may be required to sell the animal to a third party at the market value thereof may well represent a hardship to the farmer but it does seem to be an entirely reasonable method of reconciling the interest of the owner of the diseased animal with the requirements of the common good in preventing the further spread of the disease. In my view the relevant provisions of the 1966 Act and the regulations made thereunder particularly when taken in conjunction with the ministerial scheme clearly accord with the Constitution. This was made clear by the Supreme Court in [Rooney No. 1]."

The Facts

In fixing the parameters of the factual matrix in which he makes his claims in these proceedings, the plaintiff took as his starting point a letter dated 8^th February, 1993 which he wrote to the Senior Superintendent Veterinary Inspector of ERAD, which is the Eradication of Animal Disease Board and is a division within the Minister's department (the Department) which administers, inter alia, the scheme. In order to put that letter in context, it is necessary to go back to October, 1992. In that month, one animal in the plaintiff's herd was found to be inconclusive to the tuberculin test in the course of the herd test. In accordance with the scheme that animal was due to be re-tested after a 60-day period. Subsequently, reactors were disclosed in a herd contiguous to the plaintiff's herd, in consequence of which the test scheduled for the plaintiff's herd was upgraded to a full herd test, which was scheduled to be carried out by veterinary surgeons in private practice under the scheme on 8^th February, 1993.

When the plaintiff wrote the letter of 8^th February, 1993 the 1993 proceedings had already been initiated and the plaintiff's herd had been the subject of an application therein in this court on 5^th February, 1993. This fact is alluded to in the letter of 8^th February, 1993. In the letter the plaintiff made the following points in the following terms:

"(1) It is an expressly stated condition my consenting to any tests required to be carried out under the Diseases of Animals Act, 1966, that the Minister for Agriculture and Food takes possession of any reactors disclosed in such tests or that possession is taken on behalf of the Minister, and that I receive market value for such reactors.

(2) The Minister can by agreement have immediate possession of any or all of my herd of animals, if he the Minister requires such possession for the furtherance of the objectives of the Act, upon the activation of section 58 of the Act."

That stance was maintained by the plaintiff at all times thereafter in his dealings with the Department. It was a stance which the Department was entitled to rebuff having regard to the decision of the Supreme Court in Rooney No. 1. The Department did rebuff it and insisted on arrangements being made for the testing of the plaintiff's herd.

The plaintiff informed the veterinary surgeons who were retained to test his herd of the preconditions he was imposing and intimated that, unless the conditions were adhered to, an interference without lawful justification would be committed on chattels in his possession, the remedy for which would be "an action under the tort of trespass against the tortfeasor(s)". The veterinary surgeons withdrew from the test on the basis that, because of the conditions imposed by the plaintiff, they did not believe it was in their best interest to undertake the test. The test was re-allocated to another veterinary surgeon in private practice. He, in turn, was informed by the plaintiff of the conditions which the plaintiff was imposing and the implications of non-compliance with them. He too withdrew. The test was ultimately carried out by Mr. Patrick Hand, a veterinary inspector stationed at the Department's District Veterinary Office, (DVO) at Ballybay, Co. Monaghan.

Before the test was carried out, however, a notice declaring the plaintiff's holding a restricted holding was served on the plaintiff on 7^th April, 1993. The notice was served under Article 12 of the 1989 Order. Article 12(1) of the 1989 Order provides as follows:

"Where there is a reactor on a holding or a veterinary inspector is satisfied or has reasonable grounds for suspecting that –

(a) bovine tuberculosis is present on a holding, or

(b) the owner . . . has not, in relation to any animal . . . , complied with any provision of the Act or of this order,

he shall declare the holding to be a restricted holding by serving, or causing to be served, on the owner . . . a notice in the form set out in Part I of the Second Schedule to this order."

The notice dated 7^th April, 1993 served on the plaintiff conformed with the form prescribed in Part I of the Second Schedule. The effect of the service of such a notice is provided for in article 12(2) of the 1989 Order. Until a notice under article 12(5) is given the provisions contained in Part II of the Second Schedule to the Order, which are endorsed on the notice, shall apply in relation to the holding. These provisions, inter alia, restrict the movement into or out of the holding of an animal except under the authority of a movement permit. Article 12(5) of the 1989 Order provides as follows:

"Where, by reference to a subsequent investigation, a veterinary inspector is satisfied that the animals on a holding are free from bovine tuberculosis, the holding shall thereupon cease to be a restricted holding and such inspector shall, as soon as may be, give or send or cause to be given or sent to the owner . . . a notice in the form specified in Part III of the Second Schedule to this order."

In the plaintiff's case the notice of withdrawal of declaration of a holding as a restricted holding was not given until 30^th July, 1996. Accordingly, the plaintiff's holding was a restricted holding from 7^th April, 1993 to 30^th July, 1996.

The notice of 7^th April, 1993 was served on the plaintiff on the instructions of Mr. P.V. O'Reilly (Mr. O'Reilly), Senior Veterinary Inspector in Ballybay DVO. Mr. O'Reilly testified that he took that action for the following reasons:

(1) A herd test of the plaintiff's herd had been overdue from the previous February.

(2) The previous test of the plaintiff's herd in October, 1992 had disclosed an inconclusive animal, which had not been re-tested.

(3) Reactors had been disclosed in one of the contiguous herds, giving rise to some evidence of tuberculosis infection.

(4) The plaintiff had given an indication that he intended to move animals into the market. He had attended at the DVO on 1^st April, 1993 and, in the absence of Mr. O'Reilly, he had received a note stating that his herd was not restricted, with a view to acquiring calf tags to facilitate the sale of calves.

On the day following the service of the restriction notice, the plaintiff called to the DVO at Ballybay. Mr. O'Reilly explained the reasons for the service of the notice and it was his view that the plaintiff fully appreciated the reasons. The plaintiff's own evidence was that when his holding was restricted on 7^th April, 1993 he fully accepted that the restrictions would stay in place until the next test. My understanding of his evidence is that at the time he accepted that Mr. O'Reilly was correct in suspecting that there was TB in his herd and in closing up his herd, but that any reactors should have been slaughtered and compensation paid under the Act of 1966. However, the position which the plaintiff subsequently adopted was that, with the benefit of hindsight, it became apparent to him that the restriction was unlawful.

The herd test was carried out by Mr. Hand on the plaintiff's herd on 4^th May, 1993 and 7^th May, 1993. He was accompanied by Mr. Francis McPhillips, an Agricultural Officer with the Department. The tests were carried out on the home farm and on two out farms. According to Mr. McPhillips' evidence the plaintiff informed Mr. Hand on 4^th May that, if a reactor was disclosed when the test was read on 7^th May following, Mr. Hand and Mr. McPhillips would not be allowed to punch and tag the reactor and they would be liable to be prosecuted for trespass. The plaintiff's version was slightly different: he told them if a reactor was found and the Act was not applied they would be liable to trespass to chattels. In any event the plaintiff wrote to Mr. O'Reilly on 5^th May stating that under no circumstances had Mr. Hand any permission to enter his premises on 7^th May, 1993 without at first furnishing him with written documentation that the Minister was agreeable to take possession and pay compensation under s. 58 of the Act of 1966 of any animals disclosed as TB reactors by reason of the testing performed on 4^th May, 1993.

On 7^th May, 1993 Mr. Hand and Mr. McPhillips returned to read the test results. Mr. Hand measured each animal at the site of the injection which had been administered three days previously with a callipers and Mr. McPhillips recorded the measurements in a field book. The readings disclosed one animal which Mr. Hand considered to be a reactor, a cow bearing tag No. 87587 RC. For the sake of clarity, I will refer to this cow as "the contentious animal". The evidence of Mr. McPhillips was that Mr. Hand, who did not give evidence, measured the contentious animal several times with the callipers and stated that it was a reactor. Mr. McPhillips could see a lump at the injection site which suggested to him that the animal was a reactor. The plaintiff's evidence was that some time into the reading of the test results Mr. Hand disclosed that he had found a reactor and that he (the plaintiff) told him that he wanted it dealt with under s. 20(a)(i) of the Act of 1966. At the time the plaintiff did not dispute the reading or call in question Mr. Hand's assessment that the contentious animal was a reactor. It is common case that, as he was obliged to do under article 11(2) of the 1989 Order, Mr. Hand sought permission to punch and tag the contentious animal. The plaintiff's own evidence is that his response to Mr. Hand was that he should go ahead and do what he wanted to do but he would be doing it in the context of the plaintiff's statement that, if the Minister had the animal punched and tagged and subsequently possession was not taken and compensation paid in accordance with s. 58 of the Act of 1966, the tort of trespass to chattels would be committed. Mr. McPhillips' interpretation of the plaintiff's response was that it was obvious that the plaintiff was not allowing the punching and tagging of the animal.

Subsequently on two separate occasions Mr. Hand called to the plaintiff's farm but did not succeed in punching and tagging the contentious animal. Following the second occasion, the plaintiff wrote to Mr. O'Reilly on 18^th May, 1993 requesting that Mr. Hand "desist from trespassing" on his premises and giving notice that he was agreeable to surrender possession of the contentious animal under s. 20(a)(1) of the Act of 1966, and was restricting access to the contentious animal until he received official written confirmation that the Minister was agreeable to taking possession and paying compensation therefor under s. 58 of the Act of 1966.

On 19^th May, 1993 Mr. O'Reilly met with the plaintiff on the home farm. Mr. O'Reilly explained to the plaintiff that he had a reactor in his herd, that it had to be punched and tagged and that it had to be removed to a meat plant for slaughter. The plaintiff refused permission to Mr. Hand to punch and tag. Mr. O'Reilly's evidence was that the plaintiff made it clear to him that he was on a crusade to change the scheme and that he had right on his side. A further attempt to persuade the plaintiff to send the contentious animal for slaughter and to avail of the Department's reactor collection service in early June, 1993 was unsuccessful. By letter dated 24^th June, 1993 Mr. O'Reilly notified the plaintiff that a prosecution was being commenced to compel him to remove the source of disease and infection from his herd with a view to containing the infection and reducing the real possibility of disease spread to neighbouring herds. However, it was open to the plaintiff to remove the contentious animal on foot of a permit which would be issued by the DVO.

The plaintiff's evidence was that he isolated the contentious animal from 7^th May, 1993 onwards. I accept this evidence. The plaintiff stated that he isolated the animal at great expense and that in consequence he suffered loss of production.

The restriction of the plaintiff's herd continued through the summer of 1993 and into the autumn. In September of 1993 he sought permits to move the adult section of his cattle herd for slaughter so that he could raise cash to meet his commitments and to provide for wintering of his remaining young stock. In a letter dated 29^th September, 1993 Mr. O'Reilly informed the plaintiff that the issue of such permits could only be considered if, following the removal of the contentious animal, the Department veterinarians were satisfied as to the health status of the remaining animals in the herd on the basis of a test of the herd which the Department classifies as a "reactor re-test". Mr. O'Reilly set out the advice of the DVO as follows:

"The advice of the District Veterinary Office at this point is that you would immediately co-operate in the tagging and punching of your reactor animal in accordance with the standard procedure and that you would effect the removal of your reactor animal to a registered meat plant. This would pave the way for the essential reactor re-test which would be carried out with the minimum of delay, and if clear, the matter of slaughter permits can be considered. Following analysis of a second clear re-test, Department veterinarians would be in a position to consider the de-restriction of your herd."

Mr. O'Reilly indicated that the Department would put preparation of the threatened prosecution on hold until 7^th October, 1993. The plaintiff did not respond to that letter and by letter of 22^nd November, 1993 Mr. O'Reilly informed the plaintiff that the Department was progressing the prosecution.

Matters deteriorated on the plaintiff's farm through the winter of 1993 and the early spring of 1994. By March, 1994 the plaintiff had a serious crisis on his hands. His animals were on the point of starvation. He so informed Mr. O'Reilly by letter of 17^th March, 1994, in which he again requested the Minister to accept surrender of possession of the contentious animal under s. 20(a)(i) of the Act of 1966. In the formal response, which was dated 22^nd March, 1994, Mr. O'Reilly told the plaintiff that notwithstanding that the normal period for payment of a reactor grant in relation to the contentious animal had expired, if the plaintiff permitted the punching and tagging of that animal and its transport to a registered meat export plant, as an exceptional measure, he would be paid the new reactor grant of £330. About a week earlier an informal approach had been made to the plaintiff to elicit his reaction to the possibility of an ex gratia payment to him of the amount of the reactor grants (£5,455) which he had not received in 1985 in respect of the reactors slaughtered in 1985 and which were the subject of Rooney No. 1, with a view to alleviating his potential welfare problem. The plaintiff's reaction was not favourable. A further formal approach was made to the plaintiff by letter of 25^th March, 1994 from Mr. Liam Fitzgerald (Mr. Fitzgerald), a Principal Officer in the Department: notwithstanding that a TB reactor remained on the plaintiff's holding, as an exceptional measure, permits could issue to facilitate disposal of stock from the plaintiff's restricted herd to a meat plant. This suggestion was not taken up either. The Irish Farmers' Association, both at local level in County Monaghan, where the plaintiff's farm is located, and nationally, took an interest in the plaintiff's difficulties. A meeting was scheduled for 30^th March, 1994 at Agriculture House in Dublin, the headquarters of the Department. Representatives of the Irish Farmers'Association, including a representative from County Monaghan, were in attendance for the meeting. However, the plaintiff did not turn up and there was no explanation from him as to why he did not.

During the month of March, 1994 four of the plaintiff's cows had to be put down. Fortunately, funds were made available to the plaintiff privately for the purchase of fodder and a greater disaster was averted.

The plaintiff's herd continued under restriction and the contentious animal remained on his holding. In May, 1994 the Department reactivated the proposed prosecution for failing to comply with the 1989 order in relation to the contentious animal. By mid-July, 1994, the plaintiff, as he put it himself, envisaged that another crisis was looming on his farm. On 14^th July, 1994 he wrote to the Department seeking permits to slaughter the adult section of his cattle herd on two grounds. First, he was unable to provide adequate grazing for the number of stock on his holding and there was an urgent necessity to significantly reduce stock numbers. Secondly, he had large financial commitments which required immediate attention. The permits were issued but on the express basis that the Department was doing so exceptionally, given that the plaintiff continued to retain a tuberculosis reactor animal on his holding in contravention of the 1989 Order. It was again suggested by the Department to the plaintiff that he should consider facilitating the removal of the contentious animal, so that his herd could be listed for immediate testing and, following two clear tests, that de-restriction could be considered by the DVO.

Forty animals from the plaintiff's herd were slaughtered at the Liffey Meats meat plant at Ballyjamesduff, County Cavan, on 28^th July, 1994. In the case of one of the animals a visible lesion was detected during the veterinary inspection and a specimen was sent for a laboratory examination to the Department's Central Veterinary Research Laboratory at Abbotstown on 10^th August, 1994, which recorded a positive finding of tuberculosis on microscopic examination. In the course of his cross-examination of the defendants' witnesses a number of issues were canvassed by the plaintiff in relation to this finding. First, the plaintiff implicitly queried the reliability of the test and its result. On cross-examination by the plaintiff, Professor Michael Monaghan of the Veterinary School, University College Dublin, acknowledged that culturing of an organism is the "gold standard" of laboratory testing for tuberculosis infection, but he made it clear that managing the spread of infection may not necessitate this step in all cases. Secondly, the plaintiff implicitly complained that he had not been furnished with the test result at the time. Mr. O'Reilly was unaware of any evidence which would indicate that the plaintiff had been told of the result of the examination in Abbotstown. The plaintiff's herd was already restricted. Moreover, no clearance test could be carried out until the contentious animal was removed. In the circumstances Mr. O'Reilly queried the significance of informing the plaintiff at the time. The plaintiff made the case that he should have been informed and afforded an opportunity of having an independent analysis of the lesion conducted. It is important to record that it was made clear at the hearing that the factory lesion was not being put forward as a justification for the restriction of the plaintiff's herd. Therefore, I consider the foregoing issues to be peripheral to the issues which arise in these proceedings.

On 2^nd November, 1994 the plaintiff once again applied for a permit to move animals in his herd for slaughter on the ground that he was facing a serious situation – a second winter without adequate feeding for his herd. The application was refused on the ground that, in retaining the contentious animal in his herd, the plaintiff was in serious contravention of animal health regulations and had disrupted the planned testing strategy to clear infection from his herd. Further, by November, 1994 there appeared to be a number of animals in his herd which had never been tested. In consequence, his herd's health status for trading was then unknown and clear permits could not be issued for sale of animals to a meat plant. The plaintiff was once again assured that on immediate removal by him of the contentious animal on foot of a movement permit, arrangements would be put in place quickly to test his herd and, depending on the DVO evaluation of the result of that test, permits could be issued to him in the near future.

Throughout the remainder of 1994 and into 1995 correspondence in a similar vein to that which had previously passed between the plaintiff and the Department continued. The plaintiff was requesting the Minister to take possession of the contentious animal for slaughter and to pay him the live market value of the animal. The Department officials consistently responded that the onus was on the herd owner to remove the contentious animal to a registered meat export plant for slaughter on foot of a movement permit. Correspondence was also passing between the plaintiff and the Chief State Solicitor, who was representing the defendants in the 1993 proceedings in which, during the second half of 1994, this court had to consider interlocutory applications brought by the plaintiff. That correspondence and the court applications are peripheral to the issues which arise for consideration in these proceedings.

The next significant event which occurred was the prosecution of the plaintiff in the District Court in Monaghan for contravention of the 1989 Order. While the summonses were not put in evidence, the evidence was that the plaintiff was charged with refusing to permit the punching and tagging of the contentious animal on 7^th May, 1993, 13^th May, 1993 and 17^th May, 1993. The ultimate outcome of the proceedings was that on 29^th May, 1995 the charges were dismissed.

It is common case that on the following day, 30^th May, 1995, the plaintiff attended at Ballybay DVO and demanded that a herd test be carried out immediately. Mr. O'Reilly was amenable to accede to the demand for a number of reasons: it was necessary to establish what was going on on the plaintiff's holding and, in particular, to establish the disease status of his herd given that two years had elapsed since the previous herd test; and one of the animals slaughtered in July, 1994 had disclosed lesions which had tested positive subsequently in Abbotstown. The test was carried out by Mr. Desmond Patton (Mr. Patton), Veterinary Inspector, on 31^st May, 1995 and 3^rd June, 1995. The contentious animal was included in the test. Mr. O'Reilly's testimony was that it was decided to include the animal, which the Department considered to be a biological reactor, in the test, to find out what was happening in the plaintiff's herd and, in particular, what risk the contentious animal presented to neighbouring herds. Moreover, it was anticipated that, if the contentious animal was not included, the plaintiff would not allow the test. Mr. O'Reilly acknowledged that it is not normal to re-test a reactor, but stated that the 1989 Order allows for a diagnostic or experimental test. He contended that the testing of the contentious animal on 31^st May, 1995 was diagnostic. He made it clear that the Department had no intention of releasing the contentious animal on to the open market irrespective of the outcome of the test.

As it transpired, none of the plaintiff's animals failed the test, although two bullocks were recorded as inconclusive. The test on the contentious animal was clear. Mr. O'Reilly's evidence was that while the contentious animal disclosed no physical manifestation of a reaction to the test, in his view, it was still a reactor which had to be removed from the herd and could not go onto the market for trading purposes. No clearance testing could take place until it was removed. Mr. O'Reilly testified that there were both biological reasons and other reasons why an animal which disclosed a reaction on a test might not disclose a reaction on a subsequent test. The animal might have become anergic to the test. There might have been interference with the test or the animal. However, it was emphasised that there was no suggestion in this case that the plaintiff might have interfered with either the test or the animal. In his evidence, Professor Monaghan stated that anergy is associated with the advancement of the disease process in an animal and that an anergic animal is dangerous.

It was common case that when Mr. Patton examined the contentious animal on 3^rd June, 1995 he said that she was clear and that he told the personnel assisting with the test to let her out into the field. It was also common case that he did not say that she was not a reactor. There is controversy as to the import of what Mr. Patton said in relation to letting the contentious animal out to the field. One of the defendants' witnesses who was present testified that Mr. Patton expressly directed that she be let out with the rest of the animals. The plaintiff's evidence was that his interpretation coincided with the witness's testimony. Mr. Patton, on the other hand, testified that he was aware that the notice of 7^th April, 1993 put the onus on the owner to isolate the contentious animal and that it could be isolated in a field.

The next test was scheduled for 9^th and 12^th August, 1995. This test, which was conducted by Mr. Patton, again included the contentious animal and all animals tested passed.

In the interim between the two tests, the plaintiff initiated a new line of correspondence with the defendants' officers in which he enquired as to what immediate steps were to be taken in relation to the restriction of his herd, stating that he needed the information to facilitate putting in place steps aimed at mitigating the losses he had suffered at the hands of the Department. By letter dated 2^nd August, 1995 Mr. Fitzgerald informed the plaintiff that his herd would remain restricted until the Department was satisfied that it no longer posed a disease risk, following an appropriate testing sequence. However, under the "restriction rules" permits could be provided to facilitate sale of animals from his herd to a meat plant only for slaughter. In a subsequent letter of 18^th August, 1995 Mr. Fitzgerald put a proposition to the plaintiff that the Department would purchase the contentious animal for additional experimentation and slaughter at a price which would comprise the appropriate cow reactor grant amount plus the cash value of the reactor carcase which would be agreed on the basis of reasonable value. The plaintiff was again informed that the removal of the restricted animal would pave the way for de-restriction of his herd at the earliest time possible. Pending de-restriction, permits could continue to be issued for direct sale to a meat plant for slaughter in respect of non-reactor animals in his herd. The plaintiff rejected the proposal, contending that the contentious animal was not a reactor and that, as a matter of law, he was entitled to the cattle identity cards in relation to his herd.

In October, 1995 a decision was made in the Department to re-test the plaintiff's herd but to exclude the contentious animal. It is clear that a policy decision was made that the contentious animal could never be sold in the open market. The test was scheduled for 25^th October, 1995 and was to be conducted by Mr. Patton. Mr. Patton was instructed to deliver a movement permit to the plaintiff which permitted the movement of the contentious animal from the plaintiff's holding to a registered meat export premises on or before 8^th November, 1995. On 25^th October, the outset, the plaintiff refused to accept the permit. When Mr. Patton proceeded to conduct the test the contentious animal was in the cattle crush. Mr. Patton asked the plaintiff to remove the contentious animal so that he could test the remainder of the animals. Despite repeated requests the plaintiff refused. Mr. Patton concluded that he would not be able to conduct the test and left.

In the immediate aftermath of 25^th October, 1995 the plaintiff pursued a number of different approaches. First, he intimated by letter dated 26^th October, 1995 to the Department that he would submit to the slaughter of the contentious animal under duress so that the remainder of his herd could be tested "thereby facilitating the loss mitigating process". However, he required the attendance of an independent expert at the post mortem examination. In response the plaintiff was informed that the movement permit, which had been posted to him, facilitated the movement to slaughter. The attendance of an independent expert required the written permission of the secretary of the Department and the permission of the management of the registered meat export plant both to entry on the meat plant premises and to the taking of samples following completion of the Department's examination of the carcase. Next, the plaintiff called to the DVO at Ballybay and required that the movement permit be endorsed to allow the contentious animal to go to Northern Ireland for slaughter. The plaintiff was informed by letter of 1^st November, 1995 that EU and national legislation debarred trading from a restricted herd to another Member State and prohibited the export of a reactor animal. Finally, by letter dated 4^th November, 1995 the plaintiff intimated that it was his intention to initiate proceedings in the High Court and to bring a motion to have the unlawful restrictions immediately removed from his cattle herd. As I stated at the outset, these proceedings were instituted by plenary summons which issued on 8^th November, 1995. A motion was issued on 22^nd November, 1995, which was returnable for 27^th November, 1995, seeking various reliefs. The motion is no longer of relevance.

Mr. O'Reilly testified that the Department's attitude following the aborted test on 25^th October, 1995 was that, if the matter of the contentious animal could not be resolved, the Department would seize the animal in accordance with article 13 of the 1989 Order. Article 13(3) provides as follows:

"Where –

(a) there is a reactor, and

(b) a movement permit has been issued as regards the reactor, and

(c) the owner . . . has not within the period of fourteen days beginning on the date of the issue of the movement permit moved the reactor under and in accordance with the terms of that permit,

a veterinary inspector may by notice set out in the third schedule to this Order and served on the owner . . . require the reactor to be disposed of in the manner specified in the said form within the period (being not less than a period of three days) specified in the notice, and in case there is a failure to comply with the requirements of the said notice, a veterinary inspector . . . may . . . take possession of the reactor."

Article 13(4) provides that where a reactor is taken possession of under article 13, it may be disposed of as the veterinary inspector thinks fit. On 16^th November, 1995 Mr. Patton served a notice in the form set out in the Third Schedule to the 1989 Order, save that it was headed by reference to the 1978 Order, which, insofar as it survived Howard v. Minister for Agriculture and Food, had been revoked by the 1989 Order. In the event, this defect is of no consequence in that the purported notice was never acted on. However, the Department persisted in the intention to take possession of the animal under article 13. On 13^th February, 1996 Mr. Fitzgerald wrote to the plaintiff, on the basis of legal advice, notifying him that if no request for a movement permit was received within a period of 21 days, on the expiry of that period, the Department would take possession of the contentious animal under article 13.

On 1^st March, 1996 the plaintiff notified the Department by fax that the contentious animal was dead. The plaintiff intimated that he would facilitate the performance of a post mortem examination of the animal. The DVO in Ballybay responded by fax after mid-day to the effect that arrangements had been made to have the animal "post mortemed" at Abbotstown and that the carcase should be there not later than 3 p.m. that day. The plaintiff then informed the Department by fax that he had had a port mortem performed on the carcase. He was agreeable to facilitate the "post morteming" of the carcase at Abbotstown but he sought an extension of the 3 p.m. deadline. The Department's response was that the time could not be extended. Mr. Patton visited the plaintiff's holding that afternoon. It was still bright and he believes that the visit occurred between 3 p.m. and 4 p.m. He found the contentious animal hanging by one leg from a digger. He read the animal's tag. He visually examined the animal. It was open from the sternum to the caudal area. Certain parts of the animal had been interfered with. The glands were missing and the lungs and liver (pluck) were on the ground. Mr. Patton intimated that a post mortem could not be carried out because parts of the animal were missing and he could not be sure that the pluck was from the same animal. The plaintiff's evidence, which I accept, was that the contentious animal was buried on the farm and covered in lime.

The plaintiff testified that the contentious animal was shot with a humane killer by a veterinary surgeon, Mr. A.D. Pottie, who practises in Northern Ireland, in the presence of two members of An Garda Síochána. The evidence of Mr. Fitzgerald was that the Department officials were under the impression that the animal died naturally. It was on hearing the plaintiff's evidence in these proceedings that the officials of the Department became aware for the first time that the contentious animal had been deliberately put down. The plaintiff put before the court a document addressed to the Secretary of the Department entitled "Veterinary Report" dated 4^th March, 1996 on the letter heading of, and signed by, Mr. Pottie. This short document contains the following statement:

"This cow was shot with a humane killer and bled. It was then subjected to a full Post Mortem and examined. The organs were all fully examined in situ. The only growth abnormality was a Liver abscess. All the required Lymph Nodes were examined.

There was no visible lesion found."

Mr. Pottie was not called as a witness. Mr. O'Reilly's evidence was that, given the state of the carcase and the nature of the inspection carried out, no determination could be made that a proper investigation for tuberculosis had taken place.

On 4^th March, 1996 the plaintiff wrote to the DVO seeking the immediate lifting of the restriction on his herd and the immediate return of the relevant cattle identity cards. By letter dated 19^th March, 1996 the plaintiff was informed that, following the disposal of the contentious animal, the appropriate clearance testing aimed at de-restricting his herd for trade was being arranged, the first reactor re-test being scheduled to take place in May, 1996 and the second re-test two months later. The plaintiff was informed that, if both tests were clear, his herd would be considered for de-restriction. In the same letter the Department sought certain information in relation to the death and disposal of the contentious animal pursuant to the Act of 1966. This information was never furnished by the plaintiff and, in this regard, considerable forbearance has been shown by the Minister's officials

The first reactor re-test was conducted on 14^th and 17^th May, 1996 and all animals passed the test. The second reactor re-test was held on 17^th and 20^th July, 1996 and again all animals presented passed. There was a query about one animal which was not presented for testing. The plaintiff satisfied the Department in relation to the death and disposal of that animal. The notice under article 12(5) of the 1989 Order issued on 30^th July, 1996, whereupon the plaintiff's holding ceased to be a restricted holding.

Mr. O'Reilly gave evidence of the bovine tuberculosis infection profile of County Monaghan during the period in which the foregoing events played out. Prior to 1986 there were low levels of bovine tuberculosis in County Monaghan. Between 1986 and 1989 there was approximately a six-fold increase in infection. It became apparent that the disease was getting to a stage where it could be out of control. The board of ERAD declared County Monaghan a blackspot area, with the objective of regaining a reasonable level of disease. Part of the strategy was a more intensive testing programme and the application of more rigorous standards of interpretation of test results. The purpose was to extract as many of the reactors as possible from the national herd. From 1989 onward the infection level stabilised and over the next ten years it was brought back to a lower level. However, there is still a high prevalence of bovine tuberculosis in Counties Cavan, Monaghan, Louth and Meath.

Findings on the Facts

Leaving aside the plaintiff's contention that the scheme is legally flawed on various bases, which will be dealt with later, the issues of fact which arise on the evidence and my findings on those issues are as follows:

(1) Whether the declaration of the plaintiff's holding to be a restricted holding on 7^th April 1993 was a valid declaration.

This, in my view, is the crucial question because, if the notice served on 7^th April, 1993 was invalid, the purported restriction of the plaintiff's holding throughout the period from 7^th April, 1993 to 30^th July, 1996 was invalid. Even if an entitlement to serve a notice under article 12(1) arose after 7^th April, 1993, no further notice was, in fact, served. The question which arises is whether, on the basis of the evidence given by Mr. O'Reilly as to his reasons for directing the service of the notice, the defendants have established that there were reasonable grounds for suspecting that bovine tuberculosis was present on the plaintiff's holding. In my view, the following facts gave rise to reasonable grounds for such suspicion:

(a) that the herd test in October, 1992 disclosed an inconclusive, a fact which was accepted by the plaintiff in his letter of 8^th February, 1993;

(b) that the animal was overdue for re-testing;

(c) that a reactor had been disclosed in a contiguous herd; and

(d) that by reason of the conduct of the plaintiff the scheduling of a full herd test, which the veterinary inspector deemed necessary, was effectively being obstructed.

In relation to the conduct of the plaintiff, while I have no doubt that the plaintiff feels genuinely aggrieved on account of his treatment by the Department and, indeed, his treatment by the courts, the fact is that just thirteen months before he wrote the letter of 8^th February, 1993, the highest court in the State had decided the issues raised in his letter of 8^th February, 1993 and in his subsequent letters to the veterinary surgeons who had been allocated by the Department to conduct the test, and had decided them in favour of the Minister. The plaintiff was aware that the Minister was not, as a matter of law, obliged to submit to the preconditions he was purporting to impose. Article 12 is mandatory, not discretionary. Given the circumstances which existed, Mr. O'Reilly had no option but to direct that notice be served on the plaintiff under article 12(1). On the evidence, I find that, at the time, the plaintiff accepted that the Department was entitled to restrict his herd. Further, I find that such acceptance continued until the completion of the herd test on 3^rd June, 1995, following the dismissal of the charges against him in Monaghan District Court.

(2) Whether on 7^th May, 1993 the contentious animal presented as a reactor and whether Mr. Hand's professional judgment that it was a reactor was correct.

In article 2 of the 1989 Order the expression "reactor" is defined as

meaning –

"an animal, which, by reason of a test or otherwise, a veterinary inspector believes or suspects is affected with bovine tuberculosis or is capable of infecting other animals with bovine tuberculosis."

To be classified as a reactor an animal does not have to be infected. The test is whether the veterinary inspector believes or suspects, and I think it is implicit that the belief or suspicion should be supported by reasonable grounds, that the animal is affected or is capable of infecting other animals. On the evidence before me I am satisfied that on 7^th May, 1993 the contentious animal had reacted positively to the tuberculin which had been injected on 4^th May, 1993 and that Mr. Hand was correct in classifying her as a reactor within the meaning of the 1989 Order. I am satisfied on the evidence that the plaintiff accepted that the contentious animal was properly classified as a reactor at the time.

The plaintiff in his written legal submissions contended that the test which was completed on 7^th May, 1993 was not properly conducted and that procedural requirements in regard to bovine tuberculosis testing, as set out in "ERAD Document No. ER4A [Revised] 1990" were not adhered to, namely: evidence that the testing equipment was properly maintained was not on file; the test report did not comply with reporting procedures; and the test readings were totally unreliable. While the plaintiff elicited evidence in the course of his cross-examination of the defendant's witnesses which indicates that there are inconsistencies in documentation held in Ballybay DVO which records the results of the test, there is no evidence which raises a concern as to Mr. Hand's conclusion that the contentious animal was a reactor within the meaning of the 1989 Order.

(3) Whether the plaintiff refused to allow Mr. Hand to punch and tag the contentious animal on 7^th May, 1993 and on the subsequent occasions on which he attended at the plaintiff's holding and requested permission to punch and tag.

I am satisfied on the evidence that the plaintiff did refuse to allow Mr. Hand to punch and tag the contentious animal, which was a reactor. There is no implication whatsoever in this finding as to the correctness or otherwise of the decision made in Monaghan District Court on 29^th May, 1995 to dismiss the charges against the plaintiff. The finding is based on the evidence adduced in this court, applying the standard of proof applicable in a civil court – proof on the balance of probabilities.

(4) Whether Mr. Hand and Mr. McPhillips were on the plaintiff's holding lawfully when the May 1993 test was conducted.

Assuming at this juncture that the 1989 Order is a valid order, at all material times the presence of Mr. Hand and Mr. McPhillips on the plaintiff's holding was lawful and their activities were lawful, so that no question of trespass to land or chattels arises. Section 25 of the Act of 1966 confers extensive powers on an authorised person for the purpose of eradication of a Class B disease, including power to enter on any land or premises for the purpose of examining, testing, sampling or marking an animal.

(5) Whether the decision of Monaghan District Court on 29^th May, 1995 or the clear tests completed on 3^rd June, 1995 and 12^th August, 1995 altered the status of the contentious animal as a reactor.

Article 8 of the 1989 Order provides that where an animal has given a positive result to a test it shall not knowingly be tested again with tuberculin. However, that provision is qualified in that article 8(2) provides that an animal which has given a positive result to a test may, with consent given by or on behalf of the Minister, be re-tested for experimental purposes. On the evidence, I find that there was a considerable degree of ambiguity in the actions of the Department officials following the dismissal of the charges in Monaghan District Court, although I consider it was understandable that such was the case. Moreover, I believe that it is probable that rationalisation of the inclusion of the contentious animal in the tests of May/June and of August, 1995 as being for experimental or diagnostic purposes arose ex post facto. The contentious animal was not treated any differently to the other animals in the course of these tests. It was only after the August test that the proposition was put to the plaintiff in the letter of 18^th August, 1995 that the Minister would acquire the contentious animal for experimental purposes. In my view, this was really an expedient to procure the slaughter of the animal. On the evidence, and as a matter of law, in my view, the status of the contentious animal as a reactor did not change after 7^th May, 1993. Even if the position of the Department was ambiguous up to 18^th August, 1995, it was absolutely clear from the letter of that date, and the plaintiff was informed, that the Department considered that the contentious animal remained a reactor and required to be removed from the herd and disposed of as such.

(6) Whether the plaintiff refused to allow Mr. Patton to conduct a herd test on 25^th October, 1995.

I am satisfied on the evidence that, by his conduct on 25^th October, 1995 in refusing to remove the contentious animal from the cattle crush, the plaintiff refused to allow Mr. Patton to conduct a herd test which properly excluded the contentious animal.

(7) Whether there is proof of the disease status of the contentious animal prior to it being put down.

There was no proof adduced of the disease status of the contentious animal prior to it being put down. The "Veterinary Report" of Mr. Pottie is of no probative value.

(8) Whether, as contended by the plaintiff, the tests conducted in May and July, 1996 were unnecessary as a prerequisite to the de-restriction of the plaintiff's herd or there was undue delay in conducting those tests.

As article 12(5) of the 1989 Order provides, a veterinary inspector must be satisfied "by reference to a subsequent investigation" that a holding is free from bovine tuberculosis before it is de-restricted. As I have found, the contentious animal remained a reactor until it was put down. It was incumbent on the personnel in Ballybay DVO responsible for implementation of the scheme to apply the appropriate herd clearance testing regime once the reactor was removed from the herd. The plaintiff had been repeatedly informed that this course would be adopted, most recently in the Department's letter of 13^th February, 1996. I find that there was no delay on the part of the Department in scheduling the May, 1996 test. The July, 1996 test was scheduled as early as was permissible having regard to the provisions of article 8(3) of the 1989 Order, which prohibits re-testing of an animal which has passed or given an inclusive result to a test within a period of 60 days, beginning on the day when the test commenced.

(9) Whether, as contended by the plaintiff, there was no bovine tuberculosis in his herd during the period of the restriction.

I am satisfied that the Final Report dated 10^th August, 1994 from Abbotstown establishes that there was bovine tuberculosis in the relevant animal when it was slaughtered. However, I must again record that the defendants do not seek to justify the restriction of the plaintiff's herd on the basis of that incident. Apart from that, there is no conclusive evidence as to whether any animal in the plaintiff's herd between 7^th April, 1993 and 30^th July, 1996 was or was not affected by bovine tuberculosis. However, none of the procedures or sanctions to which the plaintiff's holding and herd were subjected was predicated on the existence of bovine tuberculosis in his herd.

(10) Whether the evidence discloses mala fides on the part of the Minister or any officials of his Department towards the plaintiff.

In his statement of claim the plaintiff "specifically alleged" mala fides in relation to the manner in which the scheme is being operated and the restriction of his herd on 7^th April, 1993. In the course of the hearing the plaintiff summarised his allegation as follows: that the Department from Mr. Fitzgerald downwards to Mr. O'Reilly deliberately contrived a situation that his herd would be locked up if a reactor was alleged; they were aware that the Minister would not take possession of the alleged reactor and that the animal would be left on the property so that the herd would be restricted and that the plaintiff would be forced into a dire economic situation; and the plaintiff would be forced into a situation where he would have to take the reactor grant payable under the extra-statutory scheme. On the evidence, I am satisfied that neither the Minister nor any of his officials was motivated by malice or bad faith towards the plaintiff. The evidence is coercive that at all times the officials were endeavouring to find a solution to the impasse created by the conduct of the plaintiff both before and after the test carried out in May, 1993, which was consistent with the objectives of the scheme and the protection of the national herd and the livestock industry. The expedients which the officials were prepared to recommend in March, 1994 to alleviate the plaintiff's financial difficulties and his animal welfare problem underline this. I must emphasise that this finding is based on the evidence advanced at the hearing. I am informed that there are proceedings pending in this court in which the plaintiff claims damages from malicious prosecution against Mr. Fitzgerald, Mr. O'Reilly and Mr. Hand arising out of the District Court proceedings. Clearly no finding in these proceedings is intended to have a bearing on those proceedings.

Losses alleged by the plaintiff

The plaintiff testified that he has incurred the following losses on account of the restriction of his herd:

(1) IR£66,697, representing losses which accrued to his farming enterprise between 1993 and 1996 through lost production, the loss and sale for slaughter of animals, the cost of feeding and maintaining the contentious animal in isolation, and the cost of feeding animals which he could not move out of the herd;

(2) IR£12,000 per annum since 1996, representing loss of profit which the farming enterprise would otherwise have generated; and

(3) IR£500,000, representing the capital value of the 500 cow herd which the plaintiff would now own but for the events of 1993 to 1996.

The plaintiff did not produce any accounts or other documentary evidence to support his claim, nor did he adduce any accountancy or valuation evidence. He put a value of IR£1,200 on the contentious animal, which was not accepted by the defendants.

The Plaintiff's challenge to the scheme in outline

While the plaintiff has not sought any relief by way of declaration, injunction or order of certiorari, in formulating his claim for damages he has made certain assertions that the scheme was operated invalidly in consequence of which his herd was unlawfully restricted and trespass was committed resulting in loss and damage to him. The plaintiff's herd was restricted from 1993 to 1996. Therefore, whether the plaintiff's assertions are well founded falls to be considered by reference to the period 1993 to 1996.

In outline, the plaintiff asserted that in that period the operation of the scheme was –

(1) contrary to the objectives of, and ultra vires, the Act of 1966;

(2) contrary to the Constitution;

(3) contrary to the European Convention; and

(4) contrary to the law of the European Union and, in particular, the Directives mentioned in his statement of claim.

While I propose analysing each of the plaintiff's assertions in depth later, before doing so it is necessary to identify the gravamen of the plaintiff's case. It is noteworthy that, while the defendants pleaded abuse of process by reason of the principle of res judicata and issue estoppel in answer to the plaintiff's claim, at the hearing the defendants endeavoured to deal with all submissions made by the plaintiff. In particular, the defendants did not seek to rely on the well established jurisprudence that the doctrine of res judicata extends to matters which might have been brought forward by a party to litigation as part of the subject in contest but which were not brought forward because of negligence, inadvertence or even accident (Henderson v. Henderson [1843] 3 Hare 100, which was recently followed by the Supreme Court in Carroll v. Ryan [2003] 1 IR 309).

The plaintiff recognises that there are three components in the scheme:

(a) identification of a herd's exposure to bovine tuberculosis;

(b) addressing the problem where a risk of exposure is disclosed, the ultimate solution where an animal tests positive being that the animal is slaughtered; and

(c) recompensing a herd owner whose animal is slaughtered for the loss of the animal.

Components (a) and (b) were, at the relevant time, governed by the 1989 Order. Component (c) was accommodated, in part, by the extra-statutory grant arrangements. The plaintiff's argument is that this latter component of the scheme invalidates it. To constitute a valid scheme there would have to be provision for a statutory compensation scheme of the type comprehended by s. 58 of the Act of 1966 providing for payment of the live market value of the slaughtered animal by agreement, with a mechanism for resolving disputes, and with ultimate resort, if necessary, to an independent arbitrator. This, in essence, was the case made by the plaintiff in Rooney No. 1. It is obvious that he envisaged that case being met by the activation of ss. 22 and 58 of the Act of 1966. That remained his position during his dispute with the defendants from 1993 through 1996, as is evidenced by his dealings with the defendants, starting with his letter of 8^th February, 1993.

The plaintiff correctly recognised that the decision of the Supreme Court in Rooney No. 1 is an impediment to a successful outcome to his claim in these proceedings. He sought to distinguish that decision by submitting that those proceedings have not been concluded and await a full plenary hearing, for example, to deal with the issues of mala fides and abuse of power. It would be inappropriate to comment on those submissions and I make none.

However, it is necessary to comment on another feature which the plaintiff contended distinguishes Rooney No. 1 from these proceedings. It was submitted that there is "an imperative duty" on the court "to strike down the TB Scheme (under domestic law) as an unlawful Scheme that causes slaughter of Class B animals without any indirect power to cause such slaughter in the absence of possession being taken of said animals" under the Act of 1966. Further, it was submitted that, notwithstanding that the dictum of O'Flahery J. in Rooney No. 1 that the Supreme Court might not have power to enjoin the Minister to make orders under s. 20 of the Act of 1966, the reality is that "the Minister is engaged in continual trespass in respect of operating a TB scheme that causes slaughter of Class B animals without lawful authority". That proposition is simply not correct. By virtue of s. 20(a)(ii) the Minister was given express power to make an order providing for, in default of agreement in taking possession of an animal affected or suspected of being affected by a Class B disease, the securing and regulating of the slaughter of the animal. Articles 12 and 13 of the 1989 Order implement such power. The practical implementation of the scheme in the period with which this court is concerned was explained by Murphy J. in his judgment in the Grennan case as follows:

"Where a reactor is found the current practice is to serve a notice under Article 12 of the [1989 Order] . . . declaring the holding on which the reactor was found to be a 'restricted holding'. The affected animal can then be moved only pursuant to 'a movement permit' also made in accordance with article 12 . . . and that movement permit only authorises the movement of the affected animal to a slaughterhouse. By that means the animal is indeed slaughtered but on the basis that it is sold by the owner to the slaughterhouse man who pays the full carcase value thereof. In other words, the effective policy of the 1966 Act subsequent to the entire State being declared a clearance area is that farmers owning reactor cattle were bound to sell them for slaughter at the full market value thereof. In addition to the proceeds of the sale of the affected animal, the farmer received and continues to receive an additional payment under an entirely separate ministerial scheme."

Having stated that –

(i) the only basis on which the owner of an animal affected, or suspected

of being affected, by a Class B disease could obtain compensation (as opposed to a non-statutory grant from the Minister) would be where the Minister takes possession of the animal in question pursuant to an order made under s. 20,

(ii) it had been legislative and ministerial policy for many years not to adopt such a course, and

(iii) the defect he had identified in the 1978 Order had been corrected in the 1989 Order by expressly providing in article 13(1) for taking possession of a reactor by agreement,

Murphy J. went on to state:

"However, as I pointed out in the Howard case, the inclusion of such power did not require the Minister to exercise it or to enter into negotiations for that purpose. Indeed, I accepted that it was clear, having regard to the publicly announced policy, that this was not a course which he was likely to pursue."

In the Grennan case Murphy J. held that the failure of the applicant to allow tests to be carried out on his herd under the scheme otherwise than in accordance with s. 20 of the Act of 1966 amounted to a refusal to permit his herd to be tested because the applicant "was not entitled to stipulate or compel the Minister to test the animals in accordance with any particular section or otherwise on terms that any particular financial result would accrue to him". Further, Murphy J. held that such failure gave rise to power to issue a restriction notice under article 12.

Accordingly, at the time the plaintiff initiated these proceedings there was an authority of this court upholding the validity of articles 12 and 13 of the 1989 Order and the power of the Minister to procure, through the service of notices under those articles, the slaughter of an animal affected, or suspected of being affected, by a Class B disease.

It seems to me that the net issue which arises in these proceedings is whether the plaintiff has established that between 1993 and 1996 the scheme as operated was invalid in one or more of the manners asserted by the plaintiff so as to give rise to an actionable wrong on the part of the Minister which sounds in damages, assuming the plaintiff can prove loss and damage.

Scheme ultra vires the Act of 1966?

In essence the case the plaintiff made in these proceedings that the scheme is ultra vires the Act of 1966 is the same as the case he made in Rooney No. 1, although against a slightly different factual background. In Rooney No. 1 the plaintiff's animals had in fact been slaughtered under the scheme and he had been deprived of the extra-statutory grant for non-compliance with the conditions of the scheme. In the period between 1993 and 1996 no animal belonging to the plaintiff had been compulsorily slaughtered under the scheme. He took what he considered to be a principled stand against the scheme, which undoubtedly resulted in damage to his farming enterprise and consequential loss. In both proceedings the plaintiff advanced the ground of ultra vires on the basis that the Oireachtas had intended in the Act of 1966 that, in implementing a scheme for the eradication of a Class B disease in animals, the Minister would make provision for payment of compensation in accordance with the powers conferred on him by s. 58. The scheme for the eradication of bovine tuberculosis which was in force between 1993 and 1996, which involved a combination of powers derived from s. 20 of the Act of 1966 and the extra-statutory arrangements for ex gratia payment of reactor grants, exceeded the powers of the Minister, he contended.

The Supreme Court held in Rooney No. 1 that the Minister was not obliged to operate the provisions of s. 58. This Court is bound by that decision. Accordingly, the 1989 order is not ultra vires the Act of 1966 on ground alleged by the plaintiff.

The plaintiff has specifically alleged mala fides in relation to the failure to implement s. 58. The plaintiff has not adduced any evidence whatsoever to support such allegation. In any event, at the time the acts and omissions on the part of the defendants of which the plaintiff complains occurred, between 1993 and 1996, the Supreme Court had given its imprimatur to a similar scheme in operation in the previous decade. When these proceedings were initiated, the High Court in the Grennan case had given its imprimatur to the scheme in operation in 1994 following the coming into operation of the 1989 Order. In the circumstances the plaintiff's allegation of mala fides is wholly unsustainable.

For the same reason, in my view the plaintiff's submission that he had a legitimate expectation that a compensation scheme on the lines of that provided for in s. 58 would have been put into operation is unsustainable. Referring to the decision of the House of Lords in Pepper v. Hart [1993] AC 593 (but not the decision of the Supreme Court in Crilly v. Farrington Ltd. [2001] 3 IR 251) the plaintiff invited the court to consider the official record of the debates in the Dáil and Seanad which led to the enactment of the Act of 1966, which was a consolidating Act. The defendants objected to this line of argument on the ground that legitimate expectation had not been pleaded and they also objected to the court considering the parliamentary record.

Whether an utterance in the course of a parliamentary debate on a Bill, can, in a context in which it is contended that the Bill as enacted, the Act, is not being implemented in accordance with the objectives of the Dáil and Seanad, ground an action for damages founded on legitimate expectation raises fundamental issues of constitutional law. It would only be appropriate for a court to comment on such a question where the point had been pleaded and fully argued. That has not happened in this case. In any event, when the plaintiff adopted the stance he adopted on 8^th February, 1993, he did so against the background of the Supreme Court having upheld the validity of the scheme in an action which he himself had instituted. In the circumstances, to entertain a case founded on legitimate expectation for damages for loss the plaintiff alleges he incurred by adopting a stance at variance with the legal position as laid down by the highest court in the State would be tantamount to allowing the plaintiff to make a collateral attack on the judgment of the Supreme Court.

Scheme contrary to Constitution?

In contending that the scheme is contrary to the Constitution the plaintiff invoked Articles 43 and 40.3 of the Constitution. He submitted that, by analogy to the striking down of s. 53 of the Electricity (Supply) Act, 1927, as amended, in Electricity Supply Board v. Gormley, the scheme should be struck down as breaching his rights under those Articles.

In delivering the judgment of the court in Electricity Supply Board v. Gormley, Finlay C.J. interpreted s. 53 as purporting to grant to the plaintiff a power compulsorily to impose a burdensome right over the land of another – an electricity transmission line and three pylons over the defendant's lands in the case under consideration. There was no provision for payment of compensation in s.53. Finlay C.J. stated, at p. 150, that whether the granting of such powers to the plaintiff without the provision of any obligation to pay adequate compensation constituted a breach of Article 40.3 fell to be decided in accordance with the principles laid down by the Supreme Court in Dreher v. Irish Land Commission [1984] I.L.R.M. 94, quoting the following passage from the judgment of Walsh J. at p. 96:

"The State in exercising its powers under Article 43 must act in accordance with the requirement of social justice but clearly what is social justice in any particular case must depend on the circumstances of the case. In Article 40.3.2º 'the State undertakes by its laws to protect as best it may from unjust attack, and in the case of injustice done, vindicate . . . (the) property rights of every citizen.'

I think it is clear that any State action that is authorised by Article 43 of the Constitution and conforms to that Article cannot, by definition, be unjust for the purpose of Article 40.3.2º. It may well be that in some particular cases social justice may not require the payment of any compensation upon a compulsory acquisition that can be justified by the State as being required by the exigencies of the common good."

Finlay C.J. prefaced his consideration of the question whether the requirements of social justice or the common good made the case under consideration one of the "particular cases" referred to in the above quotation, where payment of compensation is not necessary, by the following statement:

"The court does not accept the contention that the payment of compensation, ex gratia, in an amount determined by the plaintiff is to be equated with the right to compensation, lacking, as it does, the essential ingredient of the ultimate right to have the amount assessed by an independent arbiter or tribunal."

On the facts, the court concluded that the protection of the defendant, Mrs. Gormley, against the unjust attack consisting of the acquisition of the rights over her land without a corresponding right of compensation was clearly practicable because the plaintiff did in fact pay compensation, which it asserted was reasonable and in accordance with guidelines agreed with the Irish Farmers' Association. Further, there was an alternative avenue open to the plaintiff to acquire the rights under the Act of 1927, s. 45, which was accompanied by an express right to compensation. In those circumstances the court held that the compulsory powers contained in s. 53, as effectively re-enacted post 1937, were invalid having regard to the provisions of the Constitution.

No reason was given by the Supreme Court in Rooney No. 1 for the conclusion that it was not necessary to address the constitutional issue raised by the plaintiff. As, in effect, the scheme had been found to be intra vires, one would have expected that the constitutional argument would have been addressed, albeit that it would have been addressed in an evidential vacuum.

In these proceedings the plaintiff accepted that the common good requires the removal of a reactor from a herd for slaughter. His insistence that the Minister take possession of any reactor disclosed in the course of a test of his herd was a recognition that s. 58 of the Act of 1966 would only came into play where possession was taken by the Minister under s. 20. The plaintiff did not, in these proceedings, seek to controvert the view expressed by the Supreme Court in Rooney No. 1 that the operation of a scheme under which the Minister took possession of every reactor and compensated the herd owner under s. 58 would be vastly more expensive and a greater burden on the Exchequer than the scheme which was operated under the 1978 Order and subsequently under the 1989 Order. As a matter of commonsense that view must be correct. The cost of administration of such a scheme alone would be considerable.

The nub of the plaintiff's case is that the Minister should be statutorily bound to pay him live market value, in effect the cost of acquiring a similar healthy animal, such value to be determined, if necessary, by an independent arbiter. In considering the plaintiff's assertion from the perspective adopted by the Supreme Court in Electricity Supply Board v. Gormley, the starting point is that payment ex gratia of a reactor grant of whatever amount is not equivalent to compensation for the shortfall between the carcase value paid by the registered meat plant and the cost of replacement of the slaughtered animal. The fundamental question is whether, notwithstanding that, the recompense component of the scheme is justified as being required by the exigencies of the common good.

The evidence established that the operation of the scheme has been, and is, the subject of consultation between the Department and the farming community through the participation of the farming organisations in the course of the negotiations leading to the various programmes for social partnership. No change in the scheme is introduced without consultation with the farming organisations. In the event of any change, a comprehensive explanatory package is sent to each of the 150,000 herd owners in the State and the change is widely publicised in the media. Specifically in relation to the fixing of the quantum of reactor grants, the evidence was that a market sensitive approach is adopted in fixing and reviewing the grants. An ERAD document dating from 1990 entitled "Request for Community Financial Aid for the Eradication of Bovine Tuberculosis and Brucellosis in Ireland in accordance with Article 24, paragraph 3 of Council Decision 90/424/EEC of 26^th June, 1990 on expenditure in the veterinary field" disclosed that the estimated number of reactors which would be slaughtered in 1991 was 50,000, in 1992 was 50,000 and in 1993 was 40,000. No evidence was adduced of actual outturn.

Had the plaintiff complied with the requirements of the 1989 Order the contentious animal would have been one of the animals slaughtered under the scheme in 1993 in the belief, or on the suspicion, of being affected with bovine tuberculosis. Given the prevalence of the disease and the potential volume of reactors, I agree with the conclusion of Murphy J. in the Grennan case that the scheme in place between 1993 and 1996 was an entirely reasonable method of reconciling the interest of a herd owner, such as the plaintiff, whose diseased, or suspected diseased, animal was directed to be slaughtered and the requirements of the common good in preventing the further spread of disease and that the scheme accorded with the Constitution.

Scheme contrary to the European Convention

The act which the plaintiff alleges gives rise to culpability on the part of the defendant and his entitlement to an award of damages, the restriction of his herd in April, 1993, occurred more than a decade before the coming into operation of the European Convention on Human Rights Act, 2003. At the hearing the plaintiff conceded the non-retrospectivity of that Act. Therefore, the plaintiff is constrained to invoke the European Convention itself. It is well settled that the Irish courts cannot enforce the Convention as part of the domestic law of the State. Accordingly, the plaintiff cannot maintain an action for damages in this Court founded on an alleged breach of rights under the Convention between 1993 and 1996.

Scheme contrary to European Law

As the focus of the plaintiff's claim was on the recompense component of the scheme only, as I understand it, the substantive provision of European Union law on which the plaintiff's case was specifically focused was article 3.2 of Council Directive 78/52/EEC of 13^th December, 1977, which established the Community criteria for national plans for the accelerated eradication of certain animal diseases, including bovine tuberculosis. Article 3.2 provides as follows:

"Compensation for animals slaughtered on the instructions of the official veterinarian must be so adjusted that breeders are appropriately compensated."

In their written submission counsel for the defendants analysed the substance of the plaintiff's argument based on European Union law. As I believe that they correctly encapsulated the plaintiff's submissions, I propose adopting that analysis. The plaintiff's case based on European law was as follows:

A right to compensation for herd owners in respect of animals slaughtered under a bovine tuberculosis eradication scheme exists under European Union law (article 3.2.).

The caselaw of the European Court of Justice establishes that individuals can obtain reparation where their rights are infringed by a breach of Community law, such as a failure to implement a directive which confers such rights, for which a Member State may be held responsible.

The failure to operate a statutory scheme is a failure to give effect to the right to compensation guaranteed under article 3.2.

The decision of this Court in Browne v. An Bord Pleanála [1991] 2 I.R. 209 establishes that the declaration of an administrative policy is insufficient to implement a directive. Such implementation can only be done by enacting legislation. On this point, the plaintiff also cited O'Neill v. Minister for Agriculture [1997] 2 I.L.R.M. 435.

The extra-statutory reactor grant scheme is, therefore, illegal under European Union law.

Any acts which are carried out as part of the extra-statutory scheme are also illegal and constitute a trespass.

The plaintiff in his written legal submissions correctly outlined the criteria for State liability for failure to properly implement a directive. Where a Member State fails to take implementing measures in order to transpose a directive into national law, the conditions of liability (as laid down in Joined Cases C-6/90 and C-9/90 Francovich and Bonifaci v. Italy [1991] E.C.R. 1-5357 and reiterated in Joined Cases C-178/94 and others Dillenkofer v. Germany [1996] E.C.R. 1-4845) are as follows:

(1) the result prescribed by the directive must entail the grant of rights to individuals;

(2) it must be possible to identify the content of those rights on the basis of the provisions of the directive; and

(3) there must exist a causal link between the State's obligation and the harm suffered by the injured parties.

The position adopted by the defendants in relation to the plaintiff's assertion that the scheme contravenes European Union law was that they did not admit that article 3.2 had not been transposed into national law. They pointed to the extra-statutory reactor grant scheme and to the evidence as to the manner of the determination and publicising of the terms thereof, which they contended was appropriate compensation within the meaning of article 3.2. They also pointed to the evidence that the scheme is partly funded, and reviewed annually, by the European Commission, which has raised no objection to its non-statutory status. In general, they submitted that the extra-statutory scheme is not open to the same criticisms as were levelled at the purported transposition of Council Directive 85/337/EEC in the Browne case.

Having adopted that stance, it was submitted by the defendants that, in any event, the court does not have to decide whether article 3.2 has been adequately transposed into Irish law because the Minister's officials acted on the authority of the Act of 1966 and the 1989 Order and the question of compensating the plaintiff for a slaughtered animal never arose because of the conduct of the plaintiff. It was submitted that there was an alternative approach open to the plaintiff to the stance he adopted: he could have accepted the reactor grant under protest and sought declaratory relief from the court that there was a failure to implement, or a breach of, article 3.2. Further, it was submitted that, having refused the compensation which was on offer if he slaughtered the contentious animal, the plaintiff suffered no damage from any alleged failure to transpose article 3.2 into Irish law and the third condition laid down in Francovich has not been complied with. Alternatively, his patent failure to mitigate his loss disentitled the plaintiff to damages.

For the purpose of considering the defendants' argument, I will assume that there has been a failure to implement article 3.2 into national law and that the first and second criteria for State liability laid down in Francovich/Dillenkofer are complied with. Looked at in the abstract, the third condition would be fulfilled if, as a result of a failure to transpose into national law the obligation to ensure that a herd owner is appropriately compensated (whatever, on its proper construction, that expression entails) for the slaughter of an animal under a disease eradication plan mandated by Directive 78/52/EEC, a herd owner received no compensation or less than appropriate compensation for a slaughtered animal thereby incurring loss. That is not what happened in the plaintiff's case between 1993 and 1996.

What happened was that the plaintiff's herd was lawfully restricted under Irish law. Shortly thereafter, when the contentious animal was declared to be a reactor, despite being persistently urged to do so, the plaintiff refused to have the animal slaughtered and to initiate the process which would have led to de-restriction. The plaintiff claims damages for the losses he alleges flowed from the restriction of his herd between 1993 and 1996. That situation was brought about by the plaintiff's own conduct.

It is no answer to the defendants' contention that the plaintiff is not entitled to recover because he was the author of his own misfortune that, but for the non-implementation of article 3.2, the plaintiff's conduct would have been different. The extent of reparation to which an injured party may be entitled for any breach of article 3.2 in this jurisdiction is governed by Irish law and, as a matter of Community law as laid down in Dillenkofer, an Irish court is entitled to enquire whether the plaintiff had taken reasonable care to avoid loss or damage or to limit its extent. The losses which the plaintiff alleges he incurred between 1993 and 1996 could have been wholly avoided if the plaintiff had complied with the provisions of the 1989 Order in relation to herd restriction, herd testing and the slaughter of reactors, to which he professes having no objection.

Accordingly, the plaintiff has not established that there is a causal link between the losses in respect of which he claims damages and the State's obligation to implement article 3.2.

Even if a narrow view is taken of the plaintiff's claim and it is confined to a claim that, but for the non-implementation of article 3.2, the contentious animal would have been slaughtered and the plaintiff would have recovered appropriate compensation under article 3.2, the plaintiff is still faced with a difficulty, because he has not laid the evidential foundation on which the State's liability could be based. If, as has been contended by the defendants he should have done, he had moved the contentious animal to a registered meat plant for slaughter and he had received its carcase value and accepted the reactor grant, to which, on the authority of the decision of this court in McKerring v. Minister for Agriculture (in which judgment was delivered by O'Hanlon J. on 5^th October, 1987) he would have had a contractual entitlement, in the event of establishing a breach of Community law, at most he would have been entitled to the difference between the carcase value and the reactor grant, on the one hand, and appropriate compensation within the meaning of article 3.2, on the other hand. While the plaintiff's own testimony, which the defendants did not accept, was that the contentious animal was worth £1,200, he has adduced no evidence which would enable the court to determine whether there would have been such a difference and, if so, to measure the quantum of that difference.

Even on a narrow view of the plaintiff's claim for damages, which it must be stressed is not the claim the plaintiff advanced, in effect, the issue as to whether the plaintiff's assertion that the defendants were in breach of European Union law is correct is moot.

Conclusions

The plaintiff's claim for damages for loss he alleges he suffered by reason of the alleged unlawful restriction of his herd between 1993 and 1996 and trespass cannot succeed for the following reasons:

(a) he has established no actionable wrong on the part of the defendants under Irish law;

(b) he is not entitled to invoke the European Convention to support his claim for damages; and

(c) he has not established State liability for damages even if, as he asserts, there was a breach of European Union law, which is an assertion on which I have found it unnecessary to express a view.

Therefore, the plaintiff's claim for damages arising out of the alleged unlawful restriction of his herd and trespass is dismissed.

Claim of passing of private and confidential sensitive constitutional communications

On 8^th March, 1994 the plaintiff wrote a letter addressed to the following parties in the following terms:

"The President of Ireland, Mary Robinson as guardian of the people's rights and of Bunreacht Na hÉireann.

The Ceann Comhairle, Sean Treacy as Chairman of Dáil Éireann, of the legislature, one of the components of Government in Ireland under Bunreacht Na hÉireann.

The Taoiseach, Albert Reynolds as head of the Executive, one of the components of Government in Ireland under Bunreacht Na hÉireann.

The Chief Justice, Thomas A. Finlay as head of the judiciary, one of the components of Government in Ireland under Bunreacht Na hÉireann."

In the letter the plaintiff complained that he was being "denied judicial determination of issues raised (as a lay litigant) in proceedings before the Superior Courts". He outlined specific complaints against six former and serving named judges of the Superior Courts. In relation to one judge he alleged that he had "conferred an unfair advantage on the defendants". He alleged that each of the others had "exercised his judicial functions improperly". The specific allegations related to aspects of the proceedings in Rooney No. 1 and the 1993 proceedings. The Minister was the primary defendant in those proceedings.

On 14^th March the private secretary to the Taoiseach acknowledged receipt of the letter on behalf of the Taoiseach and passed it on to the Minister for appropriate attention. On 25^th March, 1994 Mr. Fitzgerald acknowledged that the letter had been passed to the Department and that its contents had been noted. The letter became part of the record of the Department in connection with the matters the subject of these proceedings and of the earlier proceedings. As such, it was discovered in the course of the discovery process in these proceedings.

In my view, no right of privacy could enure to the author thereof in relation to a letter to a constitutional officer of the State alleging improper conduct against members of the judiciary in the conduct of legal proceedings in which the author is the plaintiff and the State is effectively the defendant. The plaintiff's claim for damages for alleged breach of his constitutional right to privacy is wholly unstateable and devoid of merit. It is undeserving of any further serious consideration, particularly, as one of the complaints has already, apparently, been rehearsed publicly and another definitely has been. At the end of his judgment in Rooney No. 1 O'Flaherty J. recorded that the plaintiff had set out in his notice of appeal that there was a breach of article 6 of the European Convention involved in the treatment of his case, but that the plaintiff did not pursue that argument in any detail before the Supreme Court preferring to reserve it for possible further debate at another venue. Another of the complaints has been the subject of consideration by, and a full judgment of, the Supreme Court in Rooney v. Minister for Agriculture and Food & Ors. [2001] 2 I.L.R.M. 37.

Accordingly, the plaintiff's claim under this heading is dismissed.

Order

There will be an order dismissing the proceedings.

Approved: Laffoy J.

13/07/04