Court allows appeal against compliance notices due to unreasonable sampling procedures and officer training failures.

THE DISTRICT COURT AN CHÚIRT DÚICHE

District Court Area of Carlow District No. 22

Record No. 2024/171 Neutral Citation: [2025] IEDC 4

IN THE MATTER OF

THE ANIMAL HEALTH AND WELFARE ACT 2013

AND IN THE MATTER OF REGULATION 17 OF THE EUROPEAN

UNION (FOOD AND FOOD HYGIENE) REGULATIONS 2020

BETWEEN

JOHN FITZGERALD

APPELLANT

-AND-

DEPARTMENT OF AGRICULTURE FOOD AND THE MARINE

RESPONDENT

JUDGMENT of Judge Catherine Hayden delivered on 9 December 2025

Introduction

1. This is an appeal of two Notices which were served by the Respondent on the Appellant, namely:

a) Compliance Notice dated 1 August 2024 served under the Animal Health and Welfare Act 2013 and

b) Compliance Notice dated 2 August 2024 served under the European Union (Food and Food Hygiene) Regulations 2020.

It is agreed between the parties that the Court’s jurisdiction in this appeal is limited to whether the notices are reasonable with regard to the legislation underpinning them.

Background

2. The background to this matter is that in or around July 2024 following a suspected outbreak of what is described as a rare form of Salmonella (Salmonella Hessarek) the relevant authorities determined that the outbreak was possibly linked to the consumption of duck eggs. In particular, through food traceback three suspected cases were linked to the Appellant’s farm.

3. The relevant authorities directed investigations to be conducted at the Appellant’s premises and one other premises.

4. Sampling of three duck houses was carried out at the Appellant’s farm on 25 July 2024 and out of 14 samples taken, 5 returned positive for Salmonella Hessarek and 4 samples returned positive for Salmonella Typhimurium.

5. On 31 July 2024 the Appellant was served with a notice pursuant to the Food Hygiene Regulations 2020 which was superseded by the notice which was served on 2 August 2024.

6. The Appellant was also served with a notice pursuant to the Animal Health and Welfare Act 2013 on 1 August 2024.

7. Both notices contain a number of conditions which I don’t intend to rehearse but they included conditions which required the Appellant to recall all duck eggs which had been supplied to various parties as outlined in the notices, publish trade notifications and cease the supply and sale of duck eggs. The notices also prevented the Appellant from moving the ducks from the premises (as described in the notices) without the prior written authority of the relevant authority.

Standard Operating Procedures to be adhered to when sampling Poultry Farms

8. The Court has been provided with three versions of the Respondent’s Standard Operating Procedures (SOP) being:

a) Guidelines for sampling boot cover faecal swabs in breeding flocks of Gallus gallus as official samples for the National Salmonella Monitoring Program dated 13 March 2006 (the 2006 SOP)

b) DAFM Standard Biosecurity Procedure for Routine Poultry Visits dated 20 September 2019 (the 2019 SOP)

c) SOP No 005 for and control of Salmonella in table egg laying flocks dated

25 October 2023 (the 2023 SOP)

9. The 2023 SOP makes reference to a further SOP from 2019 “Poultry and Salmonella Sampling Equipment” but that has not been provided.

10. It appears that the 2019 SOP and the 2023 SOP are the SOPs that were in operation at the time that the samples of the Appellant’s farm were conducted.

11. The Standard Operating Procedures have been implemented by the Respondent on foot of numerous EU Regulations and the 2023 SOP under the heading “Relevant Legislation” lists those regulations. In particular the Court notes the requirement under Section 2.2. Annex I of Commission Regulation (EU) No. 517/2011 that in order to maximise the sensitivity of the sampling, and to ensure the correct application of the sampling protocol, the competent authority shall ensure that samples are taken by trained persons. In addition Section 2.2.2 requires that at least one sample must be collected using the sampling protocol.

12. The 2023 SOP recites that each Member Sate is required to establish a National Salmonella Control Programme and the objective of that programme is to ensure that proper and effective measures are taken to detect and control Salmonella.

13. The 2023 SOP sets out a number of positive obligations with regard to the those individuals who carry out samples. It states:

• In order to ensure the correct procedures are adhered to when sampling the Competent Authority shall ensure that Authorised Officers taking samples are appropriately trained.

• The Authorised Officers must observe stringent biosecurity between houses.

• The sampling officer must observe biosecurity procedures and follow the 2019 SOP with regard to putting on PPE and entering the house.

14. Included in the Sampling Supplies in the 2019 SOP is a Face Mask/Respirator while the 2023 SOP includes a face mask respirator (conforming to ISO standard EN 149 FFP3) or equivalent. The 2019 SOP specifically states that ”It is advised to wear a respirator when entering the house”.

15. With regard to the use of gloves, the 2019 SOP lists gloves as being part of the PPE while the 2023 SOP refers to “clean disposable gloves”. It would seem that these are a separate item of PPE to the sterile gloves that are required to be worn for the sampling itself and the 2019 SOP appears to direct that disposable gloves are donned before entering the house:

“4. If no entry and exit procedure is in place, put on disposable overboots when crossing the barrier before entry to the birds. Put on disposable gloves following overboots.

5. Where bird accommodation in a house exists in separate divisions, the above procedure (Steps 3/4) should be followed at each entry point. “

16. The 2023 SOP goes on to list the supplies which are required for sampling inside the house and that includes “Sampling Kit A” which contains sterile gloves which are directed to be donned once inside the house. It’s not clear from the SOPs if this leads to some form of double gloving but it is clear that disposable gloves are to be donned outside the house directly after the overboots are put on and sterile gloves are to be donned inside the house.

17. The 2023 SOP directs that when a sampler is leaving a house they must follow procedures to minimise the spread of infectious agents by disposing of their

PPE and they must disinfect their boots and wash their hands. This procedure is also to be followed where a sampler is moving between houses.

18. It is clear that the purpose of the 2019 SOP coupled with the 2023 SOP is to ensure that sampling follows stringent validated procedures to avoid contamination and the risk of compromising the reliability of the samples taken.

Training of Samplers

19. Mr Ciaran Dunne and Mr Cathal O’Gorman who carried out the sampling at the Appellant’s farm on behalf of the Respondent gave evidence with regard to the training they had received in order to become proficient at conducting sampling at poultry farms.

20. Mr Dunne confirmed that he was initially trained by fellow Technical Agricultural Officers and following training would have been supervised. He confirmed that what is particularly important when taking samples is to follow the correct procedure and not cross contaminate the samples. He confirmed that he learned this from his training and from reading the Respondent’s SOP for taking salmonella samples.

21. Mr O’Gorman and Mr Dunne both confirmed that training consisted of watching more experienced colleagues carry out sampling together with watching a 15 minute video about sampling and biosecurity and by reading the SOP.

Sampling

22. Mr Dunne and Mr O’Gorman attended at the Appellant’s farm on 25 July 2024 to carry out the sampling of the Appellant’s duck houses.

23. Mr O’Gorman has worked for the Respondent since 2003 and has acted as an assistant agricultural inspector in the poultry and egg section for four years. Mr O’Gorman confirmed that he asked Mr Dunne to assist him on the day as Mr Dunne had experience in taking samples.

24. Mr Dunne joined the poultry section in October 2023 and he confirmed that prior to attending at the Appellant’s farm he would have carried out 50-60 salmonella samples.

25. It was Mr Dunne who carried out the sampling and Mr O’Gorman acted as his supervisor on the day. Mr O’Gorman confirmed he was familiar with the farm and that his role on the day was to supervise Mr Dunne, to assist him in the sampling, to make sure that they were following all the steps necessary and were changing their personal protective equipment between samples.

26. When asked if he had complied with the SOP when carrying out the samples Mr Dunne replied “Oh yes. Yes.” In addition Mr O’Gorman confirmed he was satisfied that the manner in which the samples were taken preserved insofar as possible biosecurity.

27. It is notable that despite these assurances of compliance with the SOP Mr Dunne gave no evidence whatsoever of wearing or even being aware of the requirement to wear a face mask or respirator while carrying out the sampling and his supervisor Mr O’Gorman stated that “The PPE that you would wear, in no particular order, a bodysuit, hair nets, gloves, plastic over-boots. A person with a beard would wear a snood, what's called a snood. That's all I can think of”.

28. Conflicting evidence has been given with regard to how the sampling was conducted. The Appellant claims that Mr Dunne and Mr O’Gorman put on their boot covers at a distance of approximately 5 metres from the first duck house that was sampled and thereafter walked across the yard but this was denied by both who stated that after disinfecting their boots at their jeep and again outside the first house, they then placed the boot covers on their boots.

29. The Appellant claims that Mr Dunne and Mr O’Gorman did not wear gloves or wash their hands during the process. However, the Appellant has no CCTV or other witness evidence to support his assertions. Mr Dunne and Mr O’Gorman both state that they did wear gloves although their evidence in relation to when those gloves were put on is somewhat different. Mr Dunne states that the gloves were put on inside of the shed:

“Well, we would have went in – like, we would have dipped our feet with our boot cover – with a different pair of boot covers, went into the house, opened this kit, put on the gloves, then put on the boot covers, then we would have took out – I would have took out the bag with the boot swabs in it, opened the sealed bag, put one in each, walked around the place, collected the – collected the faecal material.”

30. When being cross examined about the use of gloves Mr Dunne stated “the gloves are in the kit. They are put on prior to taking the sample”. Further, Mr Dunne could not confirm when Mr O’Gorman donned his gloves.

31. It is clear from his evidence that Mr Dunne did not don disposable gloves after putting on his overboots as required by the SOP and it would seem that despite stating he read the SOP he was not aware of such a requirement.

32. Mr O’Gorman on the other hand states that he put on his gloves outside of the sheds:

“The gloves by me were put on – we brought our sampling equipment and overboots, plastic overboots, and gloves with us down to the yard and I would have put on my gloves outside of the – each of the sheds”

33. Both Mr Dunne and Mr O’Gorman referred to having read the SOP and both claim to have complied with the SOP. However, despite both giving detailed accounts of how they each applied their PPE before entering the first house and changing their PPE between houses, neither party at any point during their evidence stated that they washed their hands. Again the Court notes that Mr Dunne maintained that the most important element of sampling is “not to crosscontaminate and do them in the correct procedure”.

34. Mr Dunne and Mr O’Gorman both claimed to be experienced in carrying out sampling and both claimed to have received training and read and complied with the SOP. However, the Court notes that in both of their witness statements, which they would have had time to consider as they drafted them, they failed to set out the proper protocol for the application of their PPE. In fact Mr Dunne makes no mention of wearing gloves in his statement. Mr O’Gorman on the other hand, in his first statement states that overboots and gloves were donned when they put on the PPE at the jeep. His second statement attempts to rectify that statement. Mr O’Gorman sought to clarify his position in evidence by saying that when he was writing his first statement of evidence he put down the total protective equipment that they used rather than specifying when exactly it was put on. However, his second statement which again he would have had time to consider and one would have imagined he would have considered carefully considering the error he claims was in his first statement, fails to set out what

he said in evidence, that he donned the overboots and gloves outside the shed.

In fact it makes no mention whatsoever of overboots or gloves.

35. Mr Dunne and Mr O’Gorman also failed to set out the correct procedure in evidence and when asked to confirm which SOP he was relying on Mr O’Gorman stated that he thought it was a version from 2021. It is therefore not clear to the Court if Mr Dunne and Mr O’Gorman had read or were even aware of the 2023 SOP and the two 2019 SOPs which have to be read in conjunction with it.

36. The Respondent in its submissions has suggested that the evidence upon which the Department acted was robust and that it was obtained in an independent, objective and transparent manner. The Respondent also relies on Regulation (EU) 2017/625 – the Official Control Regulation. The court notes that Article 34 of that regulation provides that methods used for sampling during official controls and other official activities shall comply with Union rules establishing those methods or the performance criteria for those methods.

Further, as set out above, Section 2.2 Annex I of Commission Regulation (EU)

No. 517/2011 provides that in order to maximise the sensitivity of the sampling, and to ensure the correct application of the sampling protocol, the competent authority shall ensure that samples are taken by trained persons. Section 2.2.2 of that regulation requires that at least one sample must be collected using the sampling protocol.

37. It is clear from the evidence that the manner in which the Respondent obtained its evidence fell far short of its sampling protocol and questions therefore arise as to the robustness of that evidence. Further, having reviewed their witness statements and observed Mr Dunne and Mr O’Gorman giving their evidence, the Court cannot be satisfied with their evidence with regard to when the overboots were donned or that gloves were in fact worn.

38. A number of days after Mr Dunne carried out the sampling on behalf of the Respondent further sampling was carried out by the Appellant and the results of those samples were negative for Salmonella. Unfortunately, the sampling was carried out by the Appellant himself and not by an independent individual such as a veterinary surgeon who was trained and experienced in carrying out such sampling. Due to the lack of independence in the carrying out this sampling, the results cannot be regarded by the Court as having any evidential value.

Scientific Evidence

39. The Court has been presented with quite an amount of scientific evidence from both the Appellant and the Respondent.

40. Professor Cormican for the Respondent has stated that Salmonella Hessarek is rare and that the six cases identified in 2024 was “quite exceptional” while Dr. Byrne for the Respondent confirmed that Salmonella Hessarek accounts for less that 1% of the isolates that are stereotyped each year. Professor Cormican and Dr. Byrne both went into some detail regarding the Genome sequencing of the Salmonella Hessarek that was found in the six cases and the results revealed that out of 2,000 alleles in the salmonella genome there was only one allele of difference in the DNA sequencing to the Salmonella Hessarek which was detected in the samples collected by Mr Dunne at the Appellant’s farm.

41. When asked what this DNA evidence meant, Dr. Byrne stated that the isolate from the human samples could be descended from the isolate from the duck flock and when asked where there is only one allele in the difference what was the probability it descended from the Appellant’s farm, Dr Byrne stated it was a extremely high probability. However, Dr. Byrne did concede that his conclusions in this case were based on the presumption that the sample was properly collected.

42. Dr. Cocker for the Appellant posed two hypotheses with regard to how the samples could have been cross contaminated. Dr Cocker had been informed by the Appellant that the boots which Mr Dunne and Mr O’Gorman wore were in a jumble of other items in the back of their jeep. It was Dr. Cocker’s view that the boots had not come from a sterile environment and that there was a possibility they could have been through mud, faeces, poultry faeces or cow faeces on other farms and therefore contaminated. He advised the court that this material is sticky and very protective of bacteria so simply dipping the boots would not be enough to kill it, the boots would have to be properly cleaned. Dr Cocker had also been informed by the Appellant that Mr Dunne and Mr O’Gorman had donned their overboots at the jeep and walked across the yard.

Dr Cocker advised the court that Salmonella Hessarek and Typhimurium exist in the wild and he put forward the possibility that there could have been cross contamination with the salmonella emanating from a wild animal or cockroach.

43. It was accepted by Professor Cormican that cross contamination can occur and he gave an example where a person can get salmonella on their hands and then by handling a food product the salmonella can be transferred and the individual is subsequently infected from that food product. However, while Professor Cormican and Dr. Byrne accepted that salmonella could be found in the wild, Professor Cormican advised the court that:

“To have found salmonella hessarek with this precise fingerprint by coincidence is, in my opinion, so improbable as to be implausible. I don't believe there's any realistic possibility that salmonella hessarek with this specific fingerprint was likely to be introduced by, for example, gravel or hands or other items if it wasn't present on the farm.”

Similarly, Dr. Byrne’s view was that the chance of Dr. Cocker’s hypotheses being feasible was almost negligible. Again, the court notes that Dr. Byrne did concede that any conclusions he had arrived at in the case were based on the presumption that the sample was properly collected.

44. Dr. Avrill Hobson on behalf of the Respondent discussed the authority for the regulation of food safety within the EU. She confirmed that the Food Safety Authority of Ireland (FSAI) are the independent body that’s responsible for food safety and the Respondent has a service-level agreement with the FSAI to implement the regulations. Dr Hobson described the Respondent as “the regulators”. It is the Court’s view that in carrying out its functions as regulators, the Respondent is obliged to ensure that it carries out its functions to the highest standard and fully complies with the processes set out in the legislation and regulations it is seeking to implement.

45. Dr. Hobson referred to an audit of salmonella controls by DG Sante in 2011 where DG Sante criticised the Respondent for resampling routinely where a positive result was detected on a farm. She said that since that audit unless the Respondent suspects there’s a possibility of a false positive result they don’t carry out any confirmatory sampling. She further stated that a negative result

obtained after a positive result does not outweigh the positive result or give cause to the Respondent to alter its position.

46. With regard to the possibility of cross contamination Dr Hobson stated the Respondent has a very extensive sampling programme but that there's no requirement to be completely sterile when you're putting on your gloves like you would in an operating theatre. While the court accepts this statement, the fact is that the Respondent’s SOP requires its authorised officers to observe stringent biosecurity and ensure correct procedures are adhered to when taking samples which includes wearing a face mask/respirator, donning gloves outside and inside the duck house and washing hands.

Legislation

47. Section 42(1)(b) of the Animal Health and Welfare Act 2013 (the 2013 Act)

provides that an authorised officer may serve a notice where they are of the opinion that an animal, animal product or animal feed, land or premises is, or may be, affected with disease or a disease agent.

48. Section 43(1) of the 2013 Act states that a person on whom a notice is served may appeal the notice within 7 days of service of such notice on the ground that the notice in unreasonable having regard to this Act.

49. Regulation 16(1)(b) of the European Union (Food and Feed Hygiene)

Regulations 2020 (the 2020 Regulations) provides that an authorised officer may serve a notice where they are of the opinion that it is necessary for the protection of human health, animal health or welfare or the environment including the prevention, control or eradication of a disease or contamination of food or feed.

50. Regulation 17(1) of the 2020 Regulations states that a person on whom a notice is served may appeal the notice within 7 days of service of such notice on the ground that the notice in unreasonable having regard to the Regulations or the European legislation on food and feed.

Analysis

51. It is the Respondent’s position that the appeals must be limited to the content of the notices themselves and that if the Appellant wished to challenge the notices in the manner set out in his Grounds of Appeal he should have done so in the High Court by way of an application for Judicial Review or in some other forum.

52. To interpret the scope of an appeal under the 2013 Act and the 2020 Regulations in the manner suggested by the Respondent would be a very narrow interpretation indeed. The 2013 Act and the 2020 Regulations clearly provide that an appeal against a notice will have regard to the to the Act/Regulation underpinning it. In McGoldrick v An Bord Pleanála [1997] 1 I.R.

497, Barron J. was faced with the question of whether a statutory appeal or judicial review was appropriate in circumstances where there was an allegation that a planning authority had breached the obligation to obey fair procedures by determining the matter in question on a version of the facts which had not been fully disclosed to the applicant. Barron J. identified the following as being the key considerations in any such determination, at p. 509:

“The real question to be determined where an appeal lies is the relative merits of an appeal as against granting relief by way of judicial review. It is not just a question whether an alternative remedy exists or whether the applicant has taken steps to pursue such remedy. The true question is which is the more appropriate remedy considered in the context of common sense, the ability to deal with the questions raised and principles of fairness;

provided, of course, that the applicant has not gone too far down one road to be estopped from changing his or her mind.”

The issue has also arisen in EMI Records (Ireland) Ltd v. Data Protection Commissioner [2013] 2 I.R. 669 where Clarke J. summarised the position in this respect (at 727):

“Thus the overall approach is clear. The default position is that a party should pursue a statutory appeal rather than initiate judicial review proceedings. The reason for this approach is, as pointed out by Hogan J.

in Koczan v. Financial Services Ombudsman [2010] IEHC 407, (Unreported, High Court, Hogan J., 1st November, 2010), that it must be presumed that the Oireachtas, in establishing a form of statutory appeal, intended that such an appeal was to be the means by which, ordinarily,

those dissatisfied with an initial decision might be entitled to have the initial

decision questioned.”

53. As has been outlined in the Respondent’s submissions it is a well-established principle that there is a presumption of validity of the acts of governmental and public authorities in the performance of their functions. However, such a presumption does not provide a carte-blanche to the Department or to any State authority to do what they like or take any action they wish to further their ends and like any presumption it is a rebuttable one.

54. The issuing of a compliance notice under the legislation can obviously have a catastrophic effect on an individual’s livelihood and prospects of earning a living. However, that obviously has to be weighed against the State’s obligation to protect human life and health. The bar which is set by the legislation for an authorised officer to serve a compliance notice, i.e. that they have formed the opinion that there is or may be a risk of disease, is a very low one. In circumstances where the bar is set so low, it is incumbent on the Respondent to observe fair procedures and ensure that it has conducted itself to the highest standards prior to that opinion being formed.

55. In this case the Respondent was required to carry out the sampling of the Appellant’s farm in compliance with procedures as required by legislation. The Respondent’s SOP requires authorised officers to ensure the correct procedures are adhered to when sampling and to observe stringent biosecurity.

However, the Respondent appears to be arguing that even if they did not strictly observe all of the required procedures, the DNA genome sequencing is so incontrovertible that any omissions by their authorised officers in procuring the samples in accordance with their own procedures should be regarded by the court as de minimus. The question which the court must consider is whether the requirements set out in the SOP to ensure the integrity of the samples are mandatory or merely directional. The purpose of a mandatory/directory distinction is to ensure that one party cannot rely on a minor or technical breach of prescribed statutory requirements in order to invalidate an administrative

decision.

56. The relevant test has been set out by Henchy J in the Supreme Court case of The State (Elm Developments Ltd) v An Bord Pleanála [1981] I.L.R.M. 108 in the following terms:

“If the requirement which has not been observed may fairly be said to be an integral and indispensable part of the statutory intendment, the courts will hold it to be truly mandatory, and will not excuse a departure from it. But if, on the other hand, what is apparently a requirement is in essence merely a direction which is not of the substance of the aim and scheme of the statute, non-compliance may be excused.”

57. Further, in the recent case of Ian Croft v Dublin City Council and Aideen Whelan [2025] IEHC 656 Humphreys J considered an application to quash a planning permission due to the developer’s failure to erect a fresh planning site notice.

He said:

“this matter is not about a €7.5 million sale being put at risk over a typographical error that made no difference. It is about a permission that was obtained despite two breaches of planning regulations that on the evidence had the actual cumulative effect of disadvantaging the applicant..”

He went on to say:

“That isn’t harmless error, it isn’t de minimis and it isn’t something that should be ignored as a matter of discretion.”

58. It is my view that the requirements for authorised officers to be appropriately trained and for them to comply with the legislative regime and the SOP’s which were put in place on foot of EU regulations are indeed integral and mandatory and the Respondent’s failure to comply with the SOP cannot be ignored.

59. While the genome sequencing evidence is persuasive it is clear that the Respondent’s authorised officers did not comply with the Respondent’s SOP by observing the stringent biosecurity which it mandates. This represents a fundamental procedural defect in the taking of the samples which cannot be regarded as harmless or de minimis.

60. While the Court accepts the Respondent’s position following the DG Sante audit with regard to conducting a follow up sample, in circumstances where there were fundamental procedural defects in taking the samples at the Appellants farm, it was unreasonable of the Respondent in this case not to arrange for appropriately trained officials to attend and resample the duck houses.

Conclusion

61. As previously stated the bar for issuing a notice is low. For the reasons set out above I do not believe that the Respondent conducted itself to the highest standards and the opinion which was formed prior to the notice being issued was based on the results of sampling which was fundamentally defective. As a result it is my view that the notices were unreasonable and the appeals are therefore allowed.