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Cite as: [2019] IEHC 717
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THE HIGH COURT
JUDICIAL REVIEW
[2019] IEHC 717
2018 No. 558 J.R.
BETWEEN
EDWARD MCDONAGH
APPLICANT
AND
GALWAY COUNTY COUNCIL
RESPONDENT
JUDGMENT of Mr. Justice Garrett Simons delivered on 1 November 2019
INTRODUCTION
1. This judgment is delivered in respect of a claim for damages arising out of the destruction
by Galway County Council of a horse owned by the Applicant. This is the second
judgment to be delivered in the proceedings. It had been necessary to determine the
question of whether the actions of the local authority were ultra vires first, before the
claim for damages could be addressed. This court ruled that the destruction of the horse
was unlawful in a judgment delivered on 10 May 2019, McDonagh v. Galway County
adjourned for a short period to allow the parties to file written submissions on the claim
for damages. Thereafter, evidence and oral submissions were tendered at a hearing on
26 June 2019.
2. Notwithstanding that it has been found to have acted unlawfully in destroying the horse,
Galway County Council (“Galway”) maintains the position that it is not liable to pay
damages to the Applicant. Four broad arguments are advanced in support of this
position. First, it is said that there are strong public policy considerations which militate
against the imposition upon public authorities of liability to pay damages, lest it hamper
them in the discharge of their functions. It is suggested that these public policy
considerations are not confined to the tort of negligence but extend to all torts.
3. Secondly, it is said that the statutory powers under the Control of Horses Act 1996 are
exercised for the benefit of the public at large, i.e. as opposed to being for the benefit of a
particular class of person, such as horse owners.
4. Thirdly, attention is drawn to what Galway submits are procedural shortcomings inherent
in judicial review proceedings which make such proceedings unsuitable for the
determination of a claim for damages.
5. Finally, the Local Authority submits that the Applicant has not established ownership of
the destroyed animal.
FACTUAL BACKGROUND
6. The factual background has been set out in detail in the principal judgment, and need not
be repeated here. It is sufficient for present purposes to record that Galway seized the
horse on 11 February 2018 and detained the animal for a number of weeks thereafter.
Following on from an unlawful demand for payment of a sum of €3,129.68, and
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notwithstanding the making of certain representations to the Applicant on 12 April 2018,
Galway proceeded to destroy the horse on 13 April 2018.
STRUCTURE OF JUDGMENT
7. This judgment will be structured as follows. First, the question of whether the conduct of
Galway County Council in destroying the horse gives rise to a liability in damages will be
addressed. Secondly, in the event that this question is answered in the positive, the
quantum of damages will then be assessed.
LIABILITY FOR ULTRA VIRES ACTION
8. It is well established that a finding that a public authority has acted ultra vires does not,
without more, give rise to a liability on the part of the authority to pay damages. Rather,
in order for a party affected by the unlawful action of a public authority to succeed in a
claim for damages, they must establish that the ultra vires act constitutes a tort or entails
a breach of statutory duty which sounds in damages.
9. In many instances, the party claiming damages will seek to assert that the public
authority has been guilty of the tort of negligence. The present case is unusual in that
the Applicant relies primarily upon the less well-known tort of trespass to goods. This tort
consists of wrongful interference with the possession of chattels. I will return to discuss
the ingredients of this tort at paragraph 39 et seq. below.
10. Counsel for Galway, Mr Stephen Dodd, BL, has made a careful submission to the effect
that the same type of public policy considerations which restrict the application of the
torts of negligence and misfeasance of public office extend to other torts, including,
relevantly, the tort of trespass to goods.
11. In order to determine whether this submission is well founded, it is necessary first to
examine the case law on public authority liability. Thereafter, the question of the extent,
if any, to which the public policy considerations underlying this case law can be translated
to the tort of trespass to goods will have to be considered.
12. The judgments of the Supreme Court in Glencar Explorations plc v. Mayo County Council
starting point for this exercise. The proceedings concerned a claim for damages arising
out of a policy adopted by Mayo County Council in its capacity as planning authority.
More specifically, Mayo County Council had included as part of its statutory development
plan a policy which purported to prohibit the carrying out of mineral development, i.e.
mining, within an area of some 300 square miles. The practical effect of the policy had
been that any mineral development proposed for the area would represent a material
contravention of the development plan and permission would be refused on this basis.
13. This policy was held to be ultra vires by the High Court (Blayney J.). The applicant in the
proceedings, a mining company, then pursued a claim for damages. This claim was
dismissed by both the High Court (Kelly J.) and the Supreme Court.
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14. The claim for damages had been predicated upon inter alia the tort of negligence. The
Supreme Court dismissed the claim. Keane C.J., having carried out a comprehensive
review of the case law, posited a test for negligence in the following terms.
“[…] There is, in my view, no reason why courts determining whether a duty of care
arises should consider themselves obliged to hold that it does in every case where
injury or damage to property was reasonably foreseeable and the notoriously
difficult and elusive test of ‘proximity’ or ‘neighbourhood’ can be said to have been
met, unless very powerful public policy considerations dictate otherwise. It seems
to me that no injustice will be done if they are required to take the further step of
considering whether, in all the circumstances, it is just and reasonable that the law
should impose a duty of a given scope on the defendant for the benefit of the
plaintiff […]”.
15. Applying these principles to the facts of the case before him, Keane C.J. identified a
number of aspects of the ultra vires act which militated against the imposition of liability
on the planning authority. The planning authority, in making the development plan, had
been performing a statutory function under the (then) planning legislation, the Local
Government (Planning & Development) Act 1963. This statutory function was one
exercisable by the planning authority for the benefit of the community as a whole, and
not for the benefit of a defined category of persons to which the applicant belonged, i.e.
developers. The circumstances were distinguishable from earlier case law where the
courts had found that a housing authority might owe a duty of care to its tenants in
surveying properties, e.g. Siney v. Dublin Corporation [1980] I.R. 400.
16. Thus, notwithstanding that it was “reasonably foreseeable” that a de facto prohibition on
the grant of planning permission for mineral development would result in the developer
suffering financial loss, there was no relationship of “proximity” between the developer
and the planning authority which would render it “just and reasonable” to impose liability
on the latter.
17. Keane C.J. also distinguished between damages in respect of “pure economic loss”, and
damages, by way of compensation, for injury to persons or damage to property. It was
stated that damages for economic loss are normally not recoverable in tort. One
exception to this is in the case of local authority tenants.
18. The nature of the public policy issues at play in determining whether a public authority
should be liable under the tort of negligence have since been considered in more detail in
Cromane Seafoods Ltd. v. Minister for Agriculture, Fisheries and Food [2016] IESC 6;
claim for damages arising out of the manner in which the Irish State had implemented a
piece of EU environmental legislation, namely the Habitats Directive (Council Directive
92/43/EEC on the conservation of natural habitats and of wild fauna and flora). In brief,
the applicants contended that the method of implementation had resulted in their being
precluded from carrying out the harvesting of mussels for an unnecessarily prolonged
period of time. The “delay” was said to have arisen on account of an earlier failure on the
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part of the Minister to carry out regular scientific surveys or monitoring which would have
provided the necessary baseline data to allow the Minister to carry out a stage one
screening exercise (and a stage two appropriate assessment if required) for the purposes
of the Habitats Directive.
19. The majority of the Supreme Court held that the Minister was not liable to pay damages
to the applicants. There are a number of strands to the majority judgments, one of which
concerns the application of the tort of negligence to public authorities.
20. Giving one of the two majority judgments, MacMenamin J. cautioned against the dangers
of imposing liability for operational negligence on public authorities as follows (at
paragraph [3]).
“[…] It requires little imagination to imagine circumstances where the threat, either
in prospect, or in retrospect, of an operational negligence claim, might be such as
to stifle any administrative action in an area of potential controversy. There is
undoubtedly, a strong public interest in ensuring that a proper balance is struck
between private and public rights and duties. However, there is perhaps an even
stronger public interest in ensuring government actually functions for the general
public good, and that administrators do not consider themselves impeded from
making any decision for fear of being immersed in a morass of litigation. […]”
21. MacMenamin J. at later points in his judgment emphasised that the Minister, in seeking to
implement the Habitats Directive and, in particular, in responding to a then recent
judgment of the European Court of Justice (Case C 418/04, Commission v. Ireland) was
acting on a matter of public interest where specific duties were vested in him and the
State. The question of where national priorities lay, or who should receive resources, or
where surveys should be carried out first, were all pre-eminently matters for the
executive. The judgment also emphasised that the case did not concern the exercise of
statutory duties, but rather Ministerial discretion exercised in a particularly difficult
situation.
22. Charleton J., delivering the other majority judgment, stated as follows.
“[…] With the introduction of operational negligence, certainty of law is dissolved
and public decision making becomes subsidiary to the views of experts at several
removes from the pressures of government. The law has not so developed. The
rationale for excluding the exercise of discretionary powers is that where the
statutory framework places the decision making power in the context of a choice
between action on a particular issue, through the expenditure of funds that may
also be needed elsewhere, or in the context of a choice between the allocation or
resources insufficient to cover all needs, it is both a matter of policy and
administrative choice. Further, it is also the reposing of trust by the legislature in
administration and not in the litigation process. In that regard, administration
should not have to look to prospective second guessing by the courts, as this would
trammel the discretionary power conferred. Instead, in any area of governmental
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activity it would become possible to find an expert to say that a different policy
might have enhanced any contended for benefit to litigants, or not taken same
away and to construct, through operative negligence, a realm where a duty of care
is inventively and artificially owed to all prospective beneficiaries of whatever
allocation of resources may be made. [..]
23. The two majority judgments thus identify the rationale for not imposing an overly broad
duty of care on public authorities. The rationale emphasises that a public authority
should not be impeded from discharging its functions by fear of litigation, and that the
courts should not “second guess” the exercise of discretion by public authorities. It is
clear from the judgments, however, that this rationale is largely confined to actions by
public authorities which involve the making of policy and/or the exercise of discretion. In
particular, the making of decisions as to how the allocation of financial resources is to be
prioritised is quintessentially a question of policy. The judgments also attached weight to
the obligation on the Minister to ensure compliance with the requirements of EU law, in
the form of the Habitats Directive.
PUBLIC POLICY CONSIDERATIONS AND CONTROL OF HORSES ACT
24. The rationale which underlies the case law discussed under the previous heading does not
apply to the administrative action the subject-matter of the within proceedings, namely
the discharge by a local authority of its statutory functions under the Control of Horses
Act 1996, for the following reasons.
25. First, the very basis for the imposition of liability to pay damages for the unlawful action
complained of, i.e. the destruction of the horse, is entirely different. The liability arises
primarily as a result of the failure on the part of the local authority to comply with a
condition precedent to the exercise of the statutory power of destruction, i.e. the
requirement to serve a valid demand for payment of scheduled fees.
26. The Control of Horses Act 1996 has conferred upon local authorities an exceptional power,
namely to destroy a horse owned by a third party without any obligation to pay statutory
compensation. This power has been fairly characterised as “Draconian” by the High Court
Control of Horses Act 1996 and the Bye-Laws prescribe few enough constraints on the
exercise of this power. One such constraint is that there must be a lawful demand for
payment of outstanding charges before the power to destroy the animal can be exercised.
On the facts of the present case, this requirement was not complied with. See
paragraphs [48] to [54] of the principal judgment.
27. The imposition of liability for a procedural failure of this type does not involve the courts
“second guessing” the making of a policy decision by a public authority or the exercise of
a discretion in respect of the allocation of resources. Rather, the courts are simply
ensuring that there is compliance with the requirements of the legislation.
28. Secondly, the imposition of a liability to pay damages in these limited circumstances
cannot realistically be said to have a chilling effect on local authorities in the exercise of
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their powers under the Control of Horses Act 1996. The concern articulated in Cromane
Seafoods is that public officials would be impeded in making difficult policy decisions,
involving the prioritisation of the allocation of financial resources, by fear of their
decisions being challenged subsequently. By contrast, a local authority official who
proposes to invoke the power to destroy a horse need only ensure that the minimal
procedural requirements under the Act are complied with.
29. Thirdly, there is a direct causal link between the unlawful action complained of, i.e. the
destruction of the horse, and the financial loss suffered by the owner. The unlawful action
has resulted in immediate damage to property. This is to be distinguished from the facts
of Glencar Explorations and Cromane Seafoods: the claim for damages in each of those
cases was, in effect, for pure economic loss. This distinction is an important one. None
of the concerns as to causation or remoteness discussed in those judgments are
applicable to the destruction of a horse. Part of the rationale for limiting the extent of a
public authority’s liability to pay damages is the difficulty in delineating the scope of that
liability. The ambit of public authority regulation of all aspects of modern society is now
so extensive that most actions on the part of a public authority could be said to affect the
interests of an enormous range of individuals. In particular, the imposition of regulatory
controls on the carrying out of development works, such as those at issue in Glencar
Explorations and Cromane Seafoods, is of such general application that the making of a
policy decision has a significant ripple effect. For example, a development plan policy
which promotes a particular type of development project in an area will have a knock-on
effect for many other landowners. Whereas there will have been no physical damage to
their property, that part of the land’s open market value which reflects its development
potential may, arguably, have been affected. The concepts of remoteness and causation
allow for the placement of some limit on a public authority’s liability.
30. The destruction of a horse falls at the other end of the spectrum. In contrast to the
notional reduction in development potential of land, the property right at issue, i.e. the
ownership of the horse, has been entirely extinguished. The justification for imposing
liability for damages is stronger.
31. Finally, before leaving this topic, it is salutary to have regard to the following passages
from Clarke J. (as he then was) in Cromane Seafoods.
“[82] However, it does not seem to me to follow that every act or omission of a public
authority which takes place in the course of the exercise of public power can
necessarily be properly characterised as involving the determination of policy, the
exercise of a discretion or an adjudicative power. Within the overall context of the
exercise of public power, certain actions are purely administrative. The
consequences of extending a duty of care in respect of those purely administrative
actions may well be far removed from the consequences of extending a duty of care
to decisions involving policy, discretion or an adjudicative role. It follows that the
weight to be attached, as a countervailing factor, against imposing a duty of care in
respect of such purely administrative actions must be much less. It further follows
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that there must be cases where, therefore, appropriate scrutiny must lead to the
view that there would not be a sufficient countervailing factor to justify excluding a
duty of care, on a proportionate basis, in respect of such purely administrative acts.
[83] Why, without good reason and the presence of an appropriate countervailing factor,
should public authorities not be liable for the consequences of their actions in
exactly the same way as anyone else? It may well be that, in practice, it will be a
lot more likely that an appropriate countervailing factor will be found to be present
in the actions of public authorities precisely because of the public nature of the
functions to which those actions relate. But in the light of the need to guard
against giving the State an immunity or, indeed, excessive protection, it seems to
me that it is appropriate that a court carefully scrutinise any restriction sought to
be imposed on the potential liability of a public authority to ensure that it is justified
and proportionate in the light of the public interest sought to be protected. That is
not to say that, after appropriate scrutiny, there may well be an entirely
appropriate basis, stemming from the public nature of the activity concerned, which
would justify treating a public authority differently from a private person. But the
court should scrutinise the circumstances of the case to satisfy itself that there truly
are countervailing public interest factors sufficient to provide a legitimate basis for
excluding a duty of care which might otherwise arise.
[84] The fact that, as in Glencar Exploration p.l.c. v. Mayo County Council (No. 2)
[2002] 1 IR 84, the public authority was carrying out a function designed for the
public benefit (in that case the adoption of a development plan) may very well
provide such a justification which would withstand scrutiny. Likewise, the position
[2006] 2 IR 191, may provide an appropriate justification. Other examples
could readily be given.”
32. Although Clarke J. was in the minority (together with Laffoy J.) on the outcome of
Cromane Seafoods on its facts, the foregoing statement on the need to guard against
giving the State an immunity or, indeed, excessive protection, appears to me to be
applicable to the type of administrative action involved under the Control of Horses Act
1996.
33. In summary, I am not satisfied that Galway’s submission to the effect that there are
public policy considerations which militate against the imposition of a liability on the part
of a local authority for the unlawful destruction of a horse, is well founded. To refuse to
recognise such a liability would, in effect, confer an immunity on the local authority for
unlawful action which results in the direct and immediate interference with the owner’s
property. The destruction of another person’s property is prima facie tortious, i.e. the
wrongful interference with the property involves the tort of trespass to goods.
34. The Control of Horses Act 1996 provides for limited circumstances in which the
destruction of another person’s horse may be lawful. If the local authority acts outside its
statutory power, then it is liable in damages under that tort.
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SEARCH FOR COMPARABLE ACTION BY PRIVATE ACTOR
35. As part of his argument that there should be no liability for unlawful action under the
Control of Horses Act 1996, counsel on behalf of Galway had emphasised the following
passages from the judgment of Clarke J. in Cromane Seafoods.
“[85] It must, in that context, be recognised that the sort of actions or functions
frequently carried out by public bodies or officials may differ very significantly both
in their nature and as to their effect from actions or functions carried out by private
persons or bodies. It is inevitable, therefore, that whatever general approach is
adopted for the purposes of defining the limits of the duty of care, the application of
that general approach in practice is likely to differ as between public and private
persons or bodies at least when public entities are carrying out functions which are
peculiarly within the public domain.
[86] I note this last qualification because, of course, sometimes a public official may
simply be doing something which could just as easily be done in a private context.
A statutory body charged with, for example, establishing a utilities network (such
as electricity) could hardly expect to have a different standard or duty of care
applied to it when constructing safe power lines than that which might apply to a
private electrical contractor doing much the same thing. A public official who
happens to drive a car in the course of their public duties could not (except in very
unusual circumstances) expect to be assessed on any different basis to any other
road user just because they happen to be driving about in the course of their official
business.
[87] But there are functions which public authorities carry out which have no easy
parallel in the private sphere.”
36. Counsel submits that the detention and destruction of a horse under the Control of Horses
Act 1996 similarly involves the exercise of a power in the public domain which has no
parallel in the private sphere.
37. With respect, the point being made by Clarke J. in the passages above is not applicable to
the action giving rise to the claim for damages, i.e. the destruction of the horse. As
appears from the passages cited above, it is necessary to consider both the nature and
the effect of the function being carried out by a public authority. The regulatory functions
at issue in Cromane Seafoods, i.e. the licensing of the harvesting of mussels, have no
obvious analogue in private law. The nature of the function, i.e. the regulation of
development projects in the public interest, and the effect, i.e. the financial impact of the
temporary loss of development potential, are not ones which normally arise between two
private actors. By contrast, the effect upon the Applicant in the present case of the
destruction of his horse would have been the same whether carried out by a private actor
or by a public authority acting ultra vires. In each instance, there has been a direct and
immediate financial loss. The action of Galway in causing damage to property seems to
me to be closer to the example of the road traffic accidents given by Clarke J.
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38. The special feature of the destruction of the horse is that, provided always that the
statutory requirements are complied with, this otherwise tortious act does not give rise to
liability for damages.
TRESPASS TO GOODS
39. Leading counsel for the Applicant, Mr Michéal P. O’Higgins, SC, characterised the wrong
done to the Applicant as the wrongful destruction of his property. Counsel cited the
award of €10,000 was made in respect of the unlawful destruction of four horses.
40. In his written submissions, counsel identified a number of bases upon which damages
might be recoverable, namely, trespass to goods or chattels; detinue; or negligence. It
was also submitted that the local authority’s action had infringed the Applicant’s
constitutional right to property. At the hearing on 26 June 2019, most emphasis was laid
on the tort of trespass to goods.
41. It seems to me that this is the most appropriate basis upon which damages can be
awarded. The tort captures the essence of the complaint made by the Applicant.
Moreover, there is precedent from this court which entails the application of the tort to
administrative action involving the destruction of animals. The case closest on point is
Farrell v. Minister for Agriculture, unreported, High Court, Carroll J., 11 October 1995.
The case concerned a claim for damages arising from the slaughter (“depopulation”) of an
entire herd of cattle. The regulations pursuant to which the slaughter had been required
were subsequently held to have been ultra vires the Diseases of Animals Act 1966.
42. The High Court awarded damages on the basis that the unlawful destruction of the cattle
involved a trespass to goods.
“The tort consists of wrongfully and directly interfering with the possession of
chattels. In my opinion there was a direct interference with the Plaintiff’s right to
possession of his cattle when the Minister, with the mantle of statutory Regulations
assumed to be valid around him, constrained the Plaintiff to bring his herd to be
slaughtered. The Minister did it knowingly and intended the consequences, though
he did not act mala fides because he did not know the Regulations were ultra vires.
To my mind that is a direct interference with the Plaintiff's right to possession of his
animals and therefore the tort of trespass to chattels was committed and the
Plaintiff is entitled to damages for the loss suffered.”
43. A similar approach is appropriate on the facts of the present case. The action on the part
of Galway in destroying the horse was deliberate and wilful in the sense that euthanasia
was the intended outcome. It is not a necessary ingredient of the tort that the officials
must have been aware that the action was unlawful.
44. The action involved the most extreme form of interference with the possession of goods,
i.e. the very destruction of same.
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45. Counsel on behalf of Galway has drawn attention to the fact that the Control of Horses Act
1996 allows, in principle, for the lawful destruction of a horse in certain circumstances.
Counsel submits, therefore, that this is not a case of a public authority purporting to
exercise a jurisdiction which it could never have had. With respect, this argument does
not advance Galway’s position. The fact that actions taken at an earlier stage in the
process, i.e. the initial seizure and detention of the horse were valid, does not alter the
fact of the subsequent illegality. Galway is not entitled to rely on statutory authority to
justify its consequent actions in destroying the horse in circumstances where this court
has found that the local authority’s conduct was unlawful.
46. Had Galway complied with the statutory requirements, then its action in destroying the
animal would have been lawful and would not have given rise to any liability for damages
on the part of the local authority. In the event, however, Galway acted ultra vires in
destroying the animal. The cloak of statutory authority thus fell away and cannot be
relied upon by the local authority as a defence to the claim for damages.
47. Before leaving this topic, it is appropriate to make two brief observations on the nature of
the tort of trespass to goods. First, I am satisfied that it is not necessary to reformulate
the tort when applying it to public authorities, such as Galway County Council. The public
policy considerations which apply to the more amorphous tort of negligence do not apply
to trespass to goods for the reasons set out in detail at paragraphs 24 to 34 above.
48. Secondly, with due deference to the argument advanced on behalf of the Applicant,
reliance upon an existing recognised tort provides a sounder basis for a claim than an
attempt to rely directly on property rights under the Irish Constitution. The existing tort
is ample to cater for the circumstances of the case, and it is preferable to rely on its
terms rather than to invoke an ill-defined constitutional tort.
JUDICIAL REVIEW PROCEDURE
49. Counsel on behalf of Galway has submitted that it will rarely be appropriate that damages
are awarded in judicial review proceedings having regard to the procedural limitations
thereof. It is submitted that any claim for damages should instead have been articulated
in separate proceedings before the District Court or the Circuit Court. Objection is made
to the fact that particulars of the alleged damages had not been included in the statement
of grounds.
50. The procedural objections advanced on behalf of Galway are unfounded. One of the aims
of the amendments introduced to the judicial review procedure under the Rules of the
Superior Courts 1986 was to allow a claim for damages to be pursued in judicial review
proceedings. Order 84, rule 26 of the current version of the Rules of the Superior Courts
reads as follows.
“25(1) On an application for judicial review the Court may, subject to sub-rule (2),
award damages to the applicant if:
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(a) he has included in the statement in support of his application for leave under
rule 20 a claim for damages arising from any matter to which the application
relates, and
(b) the Court is satisfied that, if the claim had been made in a civil action against
any respondent or respondents begun by the applicant at the time of making
his application, he would have been awarded damages.
(2) Order 19, rules 5 and 7, shall apply to a statement relating to a claim for damages
as it applies to a pleading.”
51. The Rules of the Superior Courts allow for the possibility of a court making orders in
judicial review proceedings directing the discovery of documents and the furnishing of
particulars.
52. Had Galway required further details of the claim in respect of damages, it would have
been open to the local authority to request the furnishing of particulars and/or the
discovery of documents. Had the Applicant declined to provide same on a voluntary
basis, then Galway could have brought an application before me for such orders. In the
event, Galway took no such steps.
53. As noted earlier, the proceedings had been adjourned subsequent to the delivery of the
principal judgment. Thereafter, an exchange of legal submissions had been directed, and
a hearing for the damages claim had been fixed for a date convenient to the parties. This
case management would have been extended to the making of orders for discovery and
particulars had either party sought same.
54. It should also be recalled that Galway had been in possession of the horse for the weeks
immediately prior to its destruction. Galway had arranged for the horse to be inspected
by a vet acting on its behalf. Presumably, therefore, Galway had direct knowledge of the
circumstances of the horse. In the event, Galway chose not to call oral evidence from the
vet.
55. It has been suggested that Galway is at a disadvantage in that there is no provision for
the making of a counterclaim in judicial review proceedings. It is further suggested that
whereas Galway had been found in the principal judgment to have served an invalid
demand for fees, the local authority nevertheless would have a valid counterclaim for the
(lower) level of fees which it might have lawfully charged.
56. With respect, this submission is misconceived. There is no question of Galway now being
entitled to recover any fees whatsoever in respect of the destroyed horse. This court has
already found in the principal judgment that the demand for fees served in April 2018 was
invalid in that it incorrectly included charges which were not set out in the Bye Laws. The
demand is invalid, and is not capable of being saved. Galway is not entitled to sever the
demand, and seek to rely on such part of the fees which it is said might have been
lawfully charged. Moreover, and more fundamentally, there is no question of a local
authority being entitled to recover fees in respect of a horse which it has unlawfully
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destroyed. For the avoidance of any doubt, the final order in these proceedings will
include a declaration to the effect that the demand for payment is invalid and that there is
no balance outstanding in favour of Galway County Council.
57. Galway has also made the point that even taking the value of the claim at its height,
namely the €35,000 asserted on behalf of the Applicant, the value of the claim would still
fall within the monetary jurisdiction of the Circuit Court. It is further submitted that it is
“simply not appropriate” that a matter of this nature should be “troubling” the High Court.
58. It was an inevitable consequence of the nature of the legal challenge made in these
proceedings that same had to be pursued before the High Court. Had the Applicant
instead brought proceedings before the Circuit Court, he would have been met with the
answer that the destruction of the horse was authorised by statute, namely Section 39 of
the Control of Horses Act 1996 and/or the Bye-Laws. It was an essential proof of the
claim for damages, therefore, that the action of the local authority be declared to be ultra
vires. The High Court alone has jurisdiction to make such a finding.
59. It is perhaps anomalous that a claim which falls well short of the monetary jurisdiction of
the High Court should have to be pursued before that court with the attendant legal costs.
This is, however, the consequence of the allocation of jurisdiction. There are certain
procedural steps which a respondent who wishes to reduce the potential exposure to legal
costs can take. More specifically, a respondent has the option of making an offer to the
applicant on a “without prejudice save as to costs” basis. In other words, the respondent,
without formally conceding liability in the proceedings, could nevertheless protect itself in
relation to costs by making an offer in settlement of the claim which would only be
brought to the attention of the court for the purposes of a costs application subsequent to
a ruling by the court on the substance of the case. If an applicant had failed to “beat” the
offered amount, then this would have adverse consequences for them in terms of costs.
60. Put shortly, the costs rules are sufficiently robust to allow for the introduction of an
element of financial reality to judicial review proceedings.
QUANTUM OF DAMAGES: EVIDENCE
61. The Applicant, Mr Edward McDonagh, gave evidence before me at the hearing on 26 June
2019. Mr McDonagh explained that he had purchased a mare which was in foal in
October 2010. That mare subsequently gave birth to the horse the subject matter of the
judicial review proceedings, Chief of Colours. The horse was a skewbald horse, i.e. a
coloured horse. Mr McDonagh explained that such horses are potentially more valuable
for use in sulky racing.
62. Mr McDonagh was registered as the owner of Chief of Colours with the Standardbred and
Trotting Horse Association of Great Britain and Ireland. Mr McDonagh explained that the
Association issue a unique, lifetime identification number for each horse registered with it.
The Association provides a microchip with this information which is then implanted into
the animal by a vet. Mr McDonagh produced the original Standardbred Passport issued
by the Association in respect of Chief of Colours. I am satisfied on the basis of his oral
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evidence and on the documentation that Mr McDonagh has established proof of his
ownership of the horse. Indeed, the ownership issue was not seriously pressed on cross-
examination. Counsel for Galway instead emphasised the absence of a horse licence. Mr
McDonagh conceded in cross-examination that he did not hold a horse licence from
Galway County Council in respect of the animal.
63. Mr McDonagh gave details of the lineage of Chief of Colours. It seems that the ultimate
ambition had been that the horse would be put out to stud. The witness accepted in
cross-examination, however, that the horse did not have any racing history which would
enhance its value for stud purposes. It seems that the horse only ever had five
coverings, and there is only one report of any progeny.
64. Mr McDonagh confirmed that he had received two written valuations in respect of the
horse, the first in the amount of €35,000 and the other in the amount of STG £1,500. No
evidence was, however, called in support of either of these valuations.
65. Galway County Council called evidence from Mr George F. Candler. Mr Candler outlined
his qualifications as an auctioneer, valuer, bloodstock and livestock salesman. Mr Candler
has been selling horses as an auctioneer in the Cavan Equestrian Centre for the past 40
years, and has also conducted bloodstock sales in Claremorris, Mullingar and Goffs.
66. The witness gave evidence to the effect that skewbald horses are popular as trotters
within a limited market. The witness noted that sales were more likely to take place
privately rather than at a public auction. The witness suggested that the very most that
they would achieve at sale would be in the region of €3,000 to €4,000. This would be for
an exceptional animal.
67. In respect of Chief of Colours, the witness confirmed that he had seen a photograph of
the horse and had considered his pedigree. The witness also confirmed that he had
reviewed the Standardbred and Trotting Horse Association of Great Britain and Ireland
letter of 19 March 2019 which valued the horse in the region of STG £1,500. Mr Candler
suggested a value of €1,500.
FINDINGS OF THE COURT ON QUANTUM
68. The only expert evidence before the court in relation to the value of the horse is that of
Mr Candler. As noted above, Mr Candler indicated that whereas an exceptional animal
might achieve a sale price of €3,000 or €4,000, the horse the subject-matter of the
proceedings was not exceptional. Instead, Mr Candler suggests a value of €1,500. Mr
Candler has drawn attention to the lack of racing history, and the very limited coverings
to date.
69. Mr Candler noted that sales of skewbald horses of this type are often private sales. The
prices achieved at public auction might not therefore represent an entirely accurate
benchmark.
70. Taking Mr Candler’s evidence into account, I am satisfied that the appropriate award of
damages in this case is €2,000. The slight uplift of €500 is intended to reflect the
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private/public sales point noted above, and the general inconvenience caused to Mr
McDonagh.
71. The justice of the case does not require the award of aggravated damages. Whereas the
principal judgment found that Galway County Council had acted ultra vires, this arose
from its failure to fully observe the procedural requirements of the Control of Horses Act
1996 and to honour the representations made on 12 April 2018. There is no finding of
bad faith on the part of the local authority such as to justify aggravated damages.
72. It had been suggested on behalf of Galway that the Applicant had been guilty of
contributory negligence in allowing his horse to stray on a public road, which resulted in
the detention of the horse and led (ultimately) to its destruction. With respect, it cannot
realistically be said that it follows as an inevitable—or even foreseeable—consequence of
a horse being lawfully detained that the local authority will thereafter destroy the horse
unlawfully. There is no causal link, therefore, between the alleged act of contributory
negligence and the unlawful action on the part of the local authority which gave rise to
the claim.
73. Finally, whereas it is a cause for concern that the Applicant did not hold a horse licence, it
does not follow as a corollary that he is excluded from advancing a claim for damages for
the loss of the horse. The Control of Horses Act 1996 makes the failure to hold a licence
a criminal offence. The legislation also provides for the possibility of forfeiture of the
horse as an additional penalty following conviction. Crucially, however, the decision to
deprive the owner of his property rights can only be made after a criminal conviction and
only by order of a court. No criminal proceedings were taken against Mr McDonagh, and
thus his failure to hold a licence did not result in the automatic loss of his property rights
in the horse.
CONCLUSION
74. The Control of Horses Act 1996 (and the relevant Bye-Laws) confer upon a local authority
a power to detain horses, and, in certain circumstances, to destroy a horse which has
been detained. This remarkable statutory power is subject to minimal procedural
requirements. In the event that these requirements are complied with, then there is no
obligation to pay compensation or damages to the owner of an animal which has been
destroyed.
75. On the facts of the present case, and as explained in detail in the principal judgment,
Galway County Council acted in excess of its statutory powers in destroying the
Applicant’s horse on 13 April 2018. Put otherwise, Galway County Council acted ultra
vires in destroying the animal. The cloak of statutory authority thus fell away and cannot
be relied upon by the local authority as a defence to the claim for damages.
76. For the reasons set out in detail at paragraphs 24 to 34 above, there are no public policy
considerations which militate against the imposition of a liability to pay damages in such
circumstances. The imposition of liability does not involve a court “second guessing”
difficult policy decisions made by a public authority. Rather, the imposition of liability to
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pay damages is necessary to ensure compliance with the statutory requirements and to
vindicate the property rights of the owner.
77. The monetary value of the horse in the present case was modest. Sight must not be lost,
however, of the wider principle that, absent countervailing public policy considerations, a
public authority is liable for its tortious actions in the same way as a private actor. Were
the court to have accepted Galway County Council’s arguments, then analogous actions,
such as, for example, the wrongful destruction of a herd of cattle, would equally not
attract any liability on the part of a public authority to pay damages. This would be
contrary to the rule of law.
78. For the reasons set out under the previous heading above, the appropriate award of
damages in this case is €2,000.
FORM OF ORDER
79. This court will make an order of certiorari quashing the decision of Galway County Council
to destroy the horse, Chief of Colours, on 13 April 2018, and will also make a declaration
that the destruction of the said animal was ultra vires the Control of Horses Act 1996 and
the Galway County Council Bye-Laws (1998).
80. The Applicant is entitled to recover the sum of €2,000 in damages as against Galway
County Council.
81. For the avoidance of any doubt, the formal order of the High Court will include a
declaration to the effect that the demand for payment made by Galway County Council in
April 2018 was invalid, and that there is no balance outstanding in favour of Galway
County Council in respect of the accommodation or other costs associated with the
detention of the horse during the period February to April 2018.
82. I will hear counsel on the question of the appropriate costs order, if any, to make in these
proceedings.
Result: Judicial review allowed, and damages of EURO 2,000 awarded to Applicant.