Ex-farmer loses appeal, ending 29 year legal battle over bovine tuberculosis compensation

An ex-farmer who subsequently trained as a barrister has lost his appeal to amend his Statement of Claim in a case concerning the Bovine Tuberculosis (Attestation of the State and General Provisions) Order 1978 (S.I. 256/78) and his alleged right to compensation for the loss of cows which had tested positively for bovine tuberculosis.

Mr John Rooney’s herd of cows had been tested for bovine tuberculosis in 1983, with 27 of the cows being identified as having tested positive.

On researching the law on animal testing, Mr Rooney formed the view both that he was entitled as a matter of law under the Disease of Animals Act 1966 or the Constitution, to compensation both for the cattle and for the impact on his farming business, and that such amounts would be greater than was available under the complex range of measures which were then operated under the national scheme for the eradication of the disease.

This belief resulted in the commencement of proceedings in 1987, against the Minister for Agriculture and Food, Minister for Finance, the Taoiseach, Ireland and the Attorney General, as well as members of the Irish Farmer’s Association, ERAD, the Management Board for Disease Eradication, the Minister for the Public Service and the Ombudsman.

In 1990, Mr Rooney moved for a judgment in default of defence, which was refused. On appeal, the Supreme Court decided to hold a hearing on a special case, as had also been requested by Mr Rooney in order to determine that there was no power to have a non-statutory or extra-statutory scheme.

On appeal, the Supreme Court found against Mr Rooney, but as the essential facts of the case had now been decided, did not issue a final order disposing the appeal on the motion for judgment.

This formed the first issue which the Supreme Court had to deal with in the present case.

In 1994 a further situation arose in relation to Mr Rooney’s herd. When after testing it appeared that one animal may have been a reactor, Mr Rooney refused to move the reactor in accordance with the regulations, and insisted that he was entitled to compensation under the 1966 Act, despite the Supreme Court judgment demonstrating that this was not true.

Eventually Mr Rooney commenced proceedings in 1995 against the State parties which has been referred to as “Rooney No. 2”. That was a comprehensive challenge to the non-statutory scheme and involved oral evidence and a ten day hearing but which only came to trial ten years later in 2004.

Six years after the incident which gave rise to the second proceedings, the plaintiff once again applied in July 2000 to the Supreme Court to set aside the order of the Supreme Court in the procedural motions and special case determination.

On the 23rd of October 2000, the Supreme Court delivered a judgment rejecting the application.

Having failed to have the decision of the Supreme Court set aside Mr Rooney brought a motion in January 2001 to amend the November 1989 Statement of Claim.

This was the motion which was eventually heard in the High Court in 2010, and the appeal from the High Court decision is the second issue in the present case.

This amended Statement of Claim included a specific plea that the non-statutory scheme was contrary to Article 15 of the Constitution and European law, as it was contended that the non-statutory scheme should have been provided for and administered on a statutory basis.

Delivering the current judgment, O’Donnell J. noted “It would be surreal to contemplate granting a default judgment now, when the proceedings had been heard, decided, appealed and determined against Mr Rooney a quarter of a century ago.”

This aspect of the appeal was therefore dismissed.

Indeed, during the hearing it became clear that Mr Rooney was not seeking judgment, but was focussed on having his amended Statement of Claim accepted.

The Judge found that this application was not an application to amend proceedings not yet heard so that the true issues in controversy between the parties can be determined, as Mr Rooney argued.

Rather it was an attempt to graft a new argument on to a case that, “if not dead, was on life support”.

The Judge noted that “While this application is nominally to amend the proceedings commenced in 1987, it is in fact an attempt to introduce in to the claim an entirely new legal claim as to the alleged invalidity of the non-statutory scheme.”

He continued “In addressing this application it is I think worth asking what the position would be if fresh proceedings were commenced in December 2015, in relation to the alleged invalidity of a scheme in relation to events which occurred in 1987.”

He found that “it is plain that no such proceedings would be issued because any sensible litigant would recognise that they were doomed to fail. Any claim for damages would be barred by the provisions of the Statute of Limitations. Any claim for equitable relief would be met by a claim of laches. Furthermore, the capacity of the Court to hear and determine factual matters which occurred almost 30 years previously must be questioned.”

However, if the plaintiff attempted to commence new proceedings arising out of matters which had been the subject of an earlier case, any such proceedings would be bound to fall foul of the rule inHenderson v Henderson (1843) 3 Hare 100 which has been restated inA v The Medical Council 4 IR 302, and Carroll v Ryan 1 IR 309.

If the issues raised were not already res judicata because of the determination made in those proceedings, then they were matters which plainly could have been raised in 1987 and addressed.

The Judge further noted the cases of Johnson v Gore Wood & Co 2 A.C. 1 and Woodhouse v Consignia plc 1 W.L.R. 2258, which state that cases should have some finality and should not drag on forever.

The Judge therefore dismissed Mr Rooney’s second ground of appeal, and refused to submit an amended Statement of Claim.

Despite the acknowledged need for finality, the judge then left time for the parties to discuss the possibility of an agreed resolution for the costs. He concluded that if this was not possible, it would be addressed in April 2016.

  • by Rachel Killean for Irish Legal News
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