England and Wales High Court (Administrative Court) Decisions

J & P M Dockeray (a firm) v Secretary of State for the Environment, Food & Rural Affairs [2002] EWHC 420 (Admin) (18th March, 2002)

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th March 2002

Mr Justice Collins :

1. The Dockeray brothers, whose firm is the claimant in these proceedings, farm cattle in partnership at Kelswick Farm and Kelswick House Farm in Cumbria. In late February 2001 the devastating outbreak of foot and mouth disease commenced. On 31 March 2001 the whole of the claimant’s stock of beef and dairy cattle was slaughtered because foot and mouth was diagnosed. The Regulations in force (to which I will refer in detail later) entitled the owner of the stock to have it valued by a professional livestock valuer. The Dockerays took advantage of this and the stock was valued by Mr. Heslop, who was known to them for a number of years. The valuation was in the sum of £397,335. That sum was paid to the claimant on 7 June 2001.
2. The Dockerays were unhappy at the amount of the valuation, believing that their stock was worth more and in particular that some pedigree animals had been undervalued. There was a right of appeal against the valuation which had to be exercised within 14 days of receipt of the valuation by giving notice in writing that the valuation was disputed. If no notice was given within that time, the owner of the stock would be deemed to have accepted the valuation: see Article 2(6) of the Foot and Mouth Disease (Ascertainment of Value)(No.4) Order 2001, which had come into force at 6 p.m. on 28 March 2001. Unfortunately, the notice disputing the valuation was not given within the 14 days required by the Order but was lodged with the defendant on 17 April 2001, three days out of time. That was the Tuesday after Easter, 14 April, by which date the notice should have been given, was the Saturday of the Easter weekend. The actual lodging was done by Cartmell Shepherd, solicitors, following a referral from the National Farmers Union (NFU) whose premises in Carlisle were very close to the temporary offices used by DEFRA during the foot and mouth epidemic and to whom Mr. J. Dockeray had sent the valuation with a request for advice as to how to proceed. He had posted it to them on 12 April. If a notice was sent in in time, the valuation would be submitted to an independent arbitrator.
3. The NFU has intervened in this claim as an interested party but has required no separate representation. Mr. Gordon Q.C.’s arguments on behalf of the claimant have been those which the NFU would have wished to present. I have been assisted by a statement from a Ms. Lamb who is a rural surveyor on behalf of the NFU and who has been representing them in issues relating to valuation of livestock slaughtered because of the foot and mouth outbreak. She was corresponding with DEFRA about the 14 day time limit and arguing that there should be flexibility in its operation. It should, she suggested, be extended if there were good reasons to do so in an individual case. On 24 April 2001 DEFRA wrote to the claimant’s solicitors informing them that, as a written notice was not received within the 14 day period, DEFRA (or rather MAFF as it then was) would not accept that the owner had a right to request arbitration. Ms. Lamb’s attempt to persuade DEFRA to relent was unsuccessful and on 7 August 2001 she was informed that DEFRA ‘would not consider changing or extending the 14 day appeal time in individual cases, whatever the circumstances giving rise to the application’.
4. It is this rigid application of the 14 day time limit that has led to the claim before me. The claim is based on Article 6 of the European Convention on Human Rights. It is common ground that Article 6 is engaged in that the dispute about the correct level of compensation involves a determination of the Dockerays’ civil rights. Accordingly, there must be available a fair and (if necessary) public hearing within a reasonable time. That fair hearing (for a public hearing is not required by either party) is constituted by the independent arbitrator. It is said that the rigid time limit of 14 days constitutes a breach of Article 6 because it impairs, as the circumstances of this case show, the very essence of the right and in any event is not proportionate to the ends sought to be achieved by it. In addition, as a result of a point raised by me when I gave permission for the claim to proceed, it was said that on the facts the notice should not have been regarded as out of time following the principle established by the majority of the Court of Appeal in Hodgson v Armstrong [1967] 2 Q.B. 299.
5. Before going a little more deeply into the facts, I should set out the relevant statutory background. Slaughter takes place as a result of compulsory powers set out in s.31 of and Paragraph 3(1) of Schedule 3 to the Animal Health Act 1981. S.34 (7) of the Act enables the Ministers (now the defendant) to make:- “such orders as they think fit ... (a) for prescribing the mode of ascertainment of the value of an animal slaughtered ... at their direction; (b) for regulating applications for, and the mode of payments of, compensation”. Paragraph 3(2) of Schedule 3 requires the defendant to pay compensation for slaughtered animals, the value to be that immediately before slaughter on the basis that it was a healthy animal.
6. Until March 2001, when amendments to the system were considered necessary because of the extent of the outbreak, the mechanism for assessing compensation was set out in the Diseases of Animals (Ascertainment of Compensation) Order 1959, which was made under previous legislation but kept in force by the 1981 Act. The system under the 1959 Order involved a valuation by a valuer appointed by the department. If the owner did not within 14 days serve a notice disputing the valuation, it would stand. Otherwise, there would be negotiations and an eventual arbitration if they broke down, but the eventual decision might be an increase or a decrease. Thus there was an element of risk involved (albeit I suspect a relatively slight one) in challenging a valuation.
7. This system was considered to create undesirable delay in carrying out the necessary slaughter in the light of the extent of the current outbreak. Accordingly, it was decided to introduce a statutory ‘standard’ amount for different breeds and categories of animal. This concept was introduced by the Foot and Mouth Disease (Ascertainment of Value) Order 2001, which came into force at 2.30 p.m. on 22 March 2001 and which was superseded at 7.00 p.m. on 23 March 2001 by the No.2 Order only because one description of cattle had been omitted from the Schedule to the first Order. The owner could choose the standard value, which was fixed at a supposedly generous rate, or a “value approved jointly by the Minister and the owner of the animal or, failing such appointment, by a valuer appointed by the President of the Royal Institution of Chartered Surveyors”. It was quickly appreciated that, since valuation had to precede slaughter, disagreement over who should be the valuer was likely to cause delays. Accordingly, a No.3 Order was brought into effect at 8.00 p.m. on 25 March, itself superseded by a No.4 Order coming into effect at 6.00 p.m. on 28 March 2001 because again an item had been omitted from the Schedule to the No.3 Order. This set out the standard value and provided that if an owner did not accept the standard value he could have a valuation by a valuer appointed by the Minister. The right to challenge that valuation within 14 days was provided. If challenge was made, the owner could accept the standard value or refer the valuation to an arbitrator. Slaughter could take place after the initial valuation by a valuer appointed by the Minister.
8. The explanation for the failure to meet the 14 day time limit was given in two statements made by Mr. J. Dockeray. Unfortunately, there are a number of factual disputes arising from what he says and Mr. Vajda spent some time seeking to persuade me that Mr. Dockeray’s account was in some, as he submitted, important respects unreliable. I have not found it necessary to resolve the factual issues since in my judgment I can deal with this case taking what Mr. Dockeray says at face value. That is not to say I accept everything he says: I am entitled to give little weight to some aspects if I consider it right to do so and if of course there is good reason to do so. In any event, without cross-examination and hearing evidence it would be difficult for me to resolve disputed issues of fact with confidence and, generally speaking, the Administrative Court is not the right forum in which to undertake that sort of exercise.
9. In summary, Mr. Dockeray recalls the valuation and the slaughter on 31 March. He says that he knew there was a right of appeal. He recalls signing the form which was handed to him after the valuation and that this stated that he had agreed with the valuation: he only signed because he felt he did not really have any choice in the matter and he just wanted to get it over with. The whole experience was understandably most upsetting. The carcasses were left until 8 April when they were finally removed. When they were removed he was, he said, told by the veterinary officer and the field officer who attended that no-one was to leave the farm for five days. This is disputed, as is his claim that as a result neither he nor any of his family could leave the farm until Good Friday. In fact, licences for movement could be and two were issued, one to Mr. Dockeray and one to his wife. These were to enable him to go if necessary to attend to some matters in connection with a business in which he was engaged and his wife to ensure that their children moved away from the farm to avoid the worst of the unpleasantness arising from the slaughter. It is said he could therefore have used these if he had needed to post a letter or to consult the NFU or solicitors. In theory, that may be so. In practice it seems to me that a conscientious farmer whose stock had been infected and slaughtered and who would be concerned to avoid so far as he could doing anything which might spread the disease would be acting not only reasonably but properly in not using the licences for any purpose other that for which they were issued. The only other movements off his farm were to assist at DEFRA’s request on neighbouring farms whose stock was infected and needed to be slaughtered.
10. Mr. Dockeray says that it was not until 12 April that he was able to go through the valuation in some detail, although at the time it was carried out he had thought that it was a bit low. He had chosen and trusted the valuer, Mr. Heslop, and so he thought it must be right and it was only later, having heard what market value was being assessed for similar or worse herds, that he decided to trust his own judgment. He does not say how he came to hear of other valuations, but he had a telephone and a fax machine and what he says does imply that he must have talked about the valuation before he decided to consider an appeal. However, he says that he was unsure of the procedure and wished to consult the NFU, his solicitors and other valuers before making an appeal. His first statement continues:-

“Because I was prevented from leaving my farm until Good Friday, I was unable to take advice before the expiry of the 14 day time limit for serving a notice on the defendant that I disagreed with Mr. Heslop’s valuation, which expired on Saturday 14 April 2001. I therefore sent the valuation to the NFU by post for them to advise me how to proceed on 13 April 2001”.

11. In his second statement, he says that he thinks, although he cannot be sure, that he spoke (presumably over the telephone) to an NFU representative on 12 April 2001 to tell him he was sending his appeal on Thursday 12 April within the 14 day period. He says he had forgotten the NFU would be closed the following day and about the Bank Holiday.
12. There can be no doubt that Mr. Dockeray was aware of the 14 day limit. He was handed a copy of the valuation and he recalls that he signed it. The form was out of date in the sense that it referred to the 1959 Order, but in the printed ‘Notes to Owners’ it said this:-

“5. If you do not agree with the valuation of any animal and wish to dispute the Statement of Valuation you must give counter notice in writing within 14 days of receipt of this statement to the Local Animal Health Office of the Ministry of Agriculture Fisheries and Food”.

13. Mr. Gordon has made the point that the flurry of new Orders were not given any publicity and there was a change in that under the 1959 Order, there was a risk that an appeal would result in a lower amount whereas under the No.4 Order, at least the standard amount could always be accepted. There is no evidence that Mr. Dockeray was aware of the subtleties of the position in 1959. In any event, he had a valuation considerably in excess of the standard amounts. The important consideration in my view is that he was aware of the 14 day limit and I do not think that the precise terms of the new Order affected or could affect the reasonableness of the 14 day limit.
14. Mr. Gordon has submitted that in all the circumstances Mr. Dockeray acted reasonably and without negligence and so should not be penalised by the failure to meet the 14 day limit. I am afraid I cannot accept that. While I have enormous sympathy with him and it is difficult if not impossible for one such as myself who was not involved as he was in an appalling experience to understand fully his feelings, the fact is that even on 12 April he could have had his notice lodged in time. He only had to give the NFU the details over the telephone and to fax the written notice or leave it to them to lodge it that day. He was aware that the 14 day limit was nearly up and must have appreciated it might be important not to miss the deadline. Accordingly, on his own account he has no real excuse for not having lodged his notice in time and so it is unnecessary for me to resolve the factual disputes.
15. There is no question but that a State is entitled to regulate the rights of access to an independent tribunal. One such regulation is achieved by means of the imposition of time limits within which any proceedings have to be brought. The principles applicable have been clearly established by the Strasbourg jurisprudence and I need do no more than cite two paragraphs from the judgment of the ECt.HR in Cavanilles v Spain (28 October 1998). They are these:-

“44. Further, it is apparent from the Court’s case-law that this ‘right to a court’: of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard. However, these limitations must not restrict or reduce a person’s access in such a way or to such an extent that the very essence of the right is impaired; lastly, such limitations will not be compatible with Article 6(1) if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.

45. The rules on time-limits for appeals are undoubtedly designed to ensure the proper administration of justice and compliance with, in particular, the principle of legal certainty. Those concerned must expect those rules to be applied. However, the rules in question, or the application of them, should not prevent litigants from making use of an available remedy”.

16. The facts of Cavanilles are of interest. The relevant Article of the Spanish Code of Civil Procedure (Article 377) required the filing of the relevant application which the applicant wished to make within 3 days and there was no provision to extend time. The applicant arranged for the order of the court at Aoiz (some 400 kilometres from Madrid) to be served on her in Madrid, where she was to be at the material time. She was required to file what amounted to an appeal against the order in the court at Aoiz within 3 days. She sent it by post but, not surprisingly, it was not received in time. In those circumstances the court decided (Paragraphs 48 and 49):-

“48. The Court considers that to require the applicant to travel to Aoiz in order to lodge her application within the prescribed time, when the decision in question had been served on her in Madrid, would in this instance have been unreasonable.

49. In view of the fact that the applicant demonstrated her clear intention of lodging an ... application against the decision [of the Aoiz court] and that the dismissal of that application as being out of time prevented her from appealing, the Court considers that in this instance the particularly strict application of a procedural rule by the domestic courts deprived the applicant of the right of access to a court”.

17. It is to be noted that the court did not suggest that a 3 day time limit was in any event too strict to be able to comply with Article 6(1). However, it did not need to do so since the court at Strasbourg will only consider cases where there is a victim and on the facts: see Klass v Germany [1975] 2 E.H.R.R. 214. It is not for it to direct the Contracting State how it should ensure that no further breach can occur. But I am in a somewhat different position since, if I am persuaded that the rigid application of the time limit does contravene Article 6(1), I shall have to construe the Order to avoid such breach. The only way to achieve that is to allow a flexibility so that special circumstances can be taken into account to permit an extension. Thus Mr. Gordon has not submitted that a 14 day time limit is disproportionate; rather he submits that there must be an inbuilt flexibility so that a deserving case can be permitted to proceed even though lodged out of time.
18. Before leaving the Strasbourg cases, I should note Mr. Vajda’s submission that the court will require a convincing case to find a breach if a time limit is not in itself unreasonable. I was referred to Wetter v Sweden ( December 1985), a decision of the Commission on admissibility. The facts are somewhat striking. The applicant, a German yachtsman, managed to get somewhat lost in darkness and poor visibility and moored his boat at an island which turned out to be a prohibited place. He said, when seen by the police, that his charts did not disclose that the island was a prohibited place and the signs in Swedish he had seen he did not understand. Since three other boats were moored, he did not realise he was doing anything which was forbidden. He signed a document (he said because he thought he would otherwise be detained) which was in Swedish, Danish and Finnish, none of which he understood, whereby he had unwittingly granted a power of attorney to the police officer to be his ‘representative’. On 26 August 1983 the public prosecutor served a summons on the police officer, who did not communicate with the applicant who had returned to his home in Germany, and at a five minute hearing on 15 September 1983 the court fined the applicant a total of 2,000 crowns on the basis that he was represented by the police officer upon whose evidence he was convicted. The judgment was sent by ordinary post to the applicant in Hamburg with a notice indicating he must appeal no later than 6 October. The letter was postmarked 22 September but it was not clear when the applicant received it. It was all in Swedish. He wrote a letter to the Swedish Consul on 5 October explaining what had happened and that he was not guilty of any offence. The consulate forwarded this to the court by letter of 6 October. The court construed the letter as an appeal but rejected it because it was out of time. The Commission rejected his application, saying:-

“In the applicant’s case it cannot be found that the Swedish regulations in question prevented the applicant from lodging his appeal in time. In this respect the Commission recalls that the judgment was sent to the applicant on 22 September 1983 and that he maintains that he does not remember when he received it. In these circumstances the Commission finds that the applicant has not substantiated that he did not have time enough to mail an appeal directly to the court as the time-limit for doing so did not expire until 6 October 1983. The fact that the applicant received the judgment and appeal instructions in Swedish does not change that. Under the Convention the Contracting Parties are under no obligation as such to provide translations of their court’s judgments or their procedures as to an appeal against these judgments”.

19. This may seem a remarkably tough decision, but it makes the point that time limits which are relatively short can properly be imposed and rigidly adhered to even if an individual whose case may appear to have merit is prevented from pursuing an appeal or having proper access to a court.
20. The virulence of the outbreak and its extent meant that there were extraordinary pressures on DEFRA as well as the unfortunate farmers who were affected. Huge amounts of compensation were payable and very large numbers of applications had to be processed. Thus in Cumbria alone there were 892 infected premises resulting in the slaughter of 1,143,205 animals and nationwide the figures were 2,026 confirmed cases involving the slaughter of 3,937,739 animals. It was considered important that there should be as speedy a payment of compensation to the owners as possible. The investigation of individual cases to ascertain whether an appeal should be permitted out of time would inevitably place a considerable burden on DEFRA and would be likely to delay matters. Finality was important and so a relatively short period was chosen, but 14 days was not excessively short, particularly as it had since 1959 been the period permitted. Modern communications should be taken into account and there was no particular form required for the notice of appeal. Although I was not impressed with this point in the course of argument, on reflection I think there is some force in Mr. Vajda’s assertion that the fact that the farmer would have a valuation from an experienced valuer and could always receive the standard amount is of relevance. Missing the time limits would not mean that a farmer received no compensation. While is true that many who wished to appeal seem to have failed to get their notices in in time (765 out of 1,385 disputed appeals), that does not mean that the time limit was disproportionate. It seems to me that a rigid time limit was proportionate and pursued a legitimate aim.
21. Perhaps because he recognised that his case was somewhat weak on its facts and he was not going to be able to persuade me that the claimant had been effectively deprived of the right of access to the appeal process, in reply Mr. Gordon submitted that the question I should answer was whether the rigid time limit was disproportionate. In answering this question I should assume facts which, Mr. Gordon submitted, were relatively easy to assume having regard in particular to Ms Lamb’s evidence of the terrible strain on owners of slaughtered animals resulting from the outbreak. The quarantine provisions and movement prohibitions coupled with the lack of information about the new system following the change from the 1959 regime and the overall strain meant that many missed the time limit, as the figures I have already referred to show. I am not impressed by the arguments based on the lack of information about the new system. 14 days to appeal had always been the position. In fact there was no change and it is to be noted that in the report on the 1967 outbreak (Cmnd 4225), the Northumberland Committee records (Part Two Paragraph 163):-

“Several witnesses suggested that the present period of fourteen days within which the owner of animals slaughtered may appeal against the valuation should be extended. They felt that the mental strain on a farmer at the time of an outbreak was such that he should be allowed a longer period to consider the matter. We do not underestimate the stress to which a farmer is subject at such a time, but we do not consider that any extension of the fourteen day period is necessary”.

22. It is, I suppose, always possible to postulate a set of circumstances which raises a desire to try to construe a provision which sets a rigid time limit in favour of allowing what appears to be a meritorious case to proceed. However reasonable the limit may be, that can always apply. But that is not the proper way to approach the question whether a particular rigid limit is proportionate. Any time limit will throw up a hard case. I am satisfied that 14 days was and is proportionate and that as a matter of fact the claimant could have got the notice in in time. It is clear that time will run from receipt of the notice and the notice must inform of the 14 day limit. It was policy to get the valuers to draw attention to the limit, but that may not always have been done and Mr. J. Dockeray says he was not told of it. It was, however, spelt out clearly in the notice.
23. The claim based on Article 6(1) thus fails. That brings me on to the argument based on Hodgson v Armstrong (supra). That I can deal with briefly. In that case a notice under the Landlord and Tenant Act 1954 had been lodged in the County Court one day late because the last day was the Easter Monday Bank Holiday and the court was closed on that day. In fact, the court closed at midday on the previous Thursday and so when the solicitors got to court to lodge the notice on the Thursday afternoon they were unable to do so. It was then posted but no post arrived at court until the following Tuesday. At p.309d, Sellers L.J. said:-

“The Act clearly gives the applicant four months and there is nothing to indicate that that period is to be in any way curtailed. The Act requires that the original application should be made to the court and there would seem to be the underlying assumption that the court is functioning and available to receive it within the working hours of that date, otherwise the full statutory period may be curtailed for some by the mere mischance of dates”.

That principle seems to me to apply and to be in accordance with the approach of the ECtHR to time limits: see Escolano v Spain (25 January 2000).

24. I raised the point on giving permission because I then assumed that the offices of DEFRA would not be open over the Easter weekend. That assumption was wrong and it is clear that Mr. Dockeray could have telephoned for information and faxed his notice in time. Thus the principle does not assist the claimant in the circumstances of this case.
25. It follows that this claim must be dismissed.
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MR JUSTICE COLLINS: May I thank counsel on both sides for the corrections, which have been incorporated into the judgment, which I hope you all have. For the reasons given in it this claim is dismissed.

MR WARD: I ask for costs on behalf of the Secretary of State. I understand the application is not opposed. I have had a word with my learned friend regarding the basis on which any costs order might be made, should your Lordship be minded to do so.

MR JUSTICE COLLINS: Costs would normally follow the event unless there is a good reason not to.

MR WARD: The discussion we have had is on the basis for assessment, and we have agreed, subject to your Lordship's approval, that it would be appropriate for the matter to go to detailed assessment rather than summary assessment.

MR JUSTICE COLLINS: Well, if you do not have figures, it has to.

MR WARD: We have exchanged figures with the claimants and they have suggested that would be more appropriate. We are happy to go along with that, if your Lordship is content.

MR JUSTICE COLLINS: Yes. That is right, is it?

MR CHAMBERLAIN: My Lord, that is correct. I do ask though for permission to appeal. Your Lordship focused squarely in the judgment on the question of proportionality. Of course, I cannot complain about that because that is exactly what we invited your Lordship to do, but the result of that is that the judgment does take a view about the rule itself as distinct from its application in a particular case.

MR JUSTICE COLLINS: Well, not entirely, because the judgment makes plain, I think, that on the facts of this case there was or should have been no problem in getting the application in within the 14 days.

MR CHAMBERLAIN: My Lord, of course the judgment does take that point, but it also takes a number of general points in relation to the proportionality of the rule, and, as I said, of course that is not something that we can complain about given the way that we put the case, but it does have this result, the judgment has a bearing, indeed an important bearing, on a large number of other claims. Your Lordship, I think, mentioned in the judgment that there were something over 700 cases which had been rejected as being out of time, and your Lordship's judgment on proportionality of course affects all of those cases, and it is really on that basis rather than the narrower basis of the Dockerays' case alone that I ask for permission to appeal.

MR JUSTICE COLLINS: You are carrying the flag for everyone else.

MR CHAMBERLAIN: My Lord, indeed. At least that is the basis on which I put my application for permission to appeal, because I have to pin it on some basis. In my submission, that is an appropriate basis to grant permission to go to the Court of Appeal.

MR JUSTICE COLLINS: No, Mr Chamberlain, I take the view that the position was clear. You will have to persuade the Court of Appeal if you wish to take it further. I have put: "No real prospect of success. In any event this claim on its facts has no chance".

Thank you both.