Supreme Court dismisses appeal against High Court ruling on Bovine TB scheme constitutionality and damages claims.

THE SUPREME COURT

Appeal No. 387 of 2004

Hardiman J.

Macken J.

Finnegan J.

BETWEEN

JOHN ROONEY

PLAINTIFF/APPELLANT

and

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

DEFENDANTS/RESPONDENTS

Judgment of Mr Justice Finnegan delivered on the 18th day of November 2010

This appeal concerns one of several sets of proceedings instituted by the appellant which concern the Bovine T.B. Eradication

Scheme operated by the Minister for Agriculture, Food and Forestry (“the Minister”). In short in these proceedings he claims that the

scheme as operated infringes the Constitution, is contrary to Directive 64/432/EEC (as amended), Directive 77/391/EEC and the

European Convention for the Protection Human Rights and Fundamental Freedoms. Further he claims that the scheme operated under

the Bovine Tuberculosis (Attestation of the State and General Provisions) Order 1989 was operated contrary to the objectives of the

Diseases of Animals Act 1966 and was ultra vires the Diseases of Animals act 1966. Central to these complaints is the extra statutory

scheme of compensation operated by the Minister for Agriculture, Food and Forestry in place of the statutory scheme provided for in

section 22 of the Act of 1966. In addition he claims that his cattle herd had been unlawfully restricted and in that regard alleges mala

fides and claims damages and he also claims damages for breach of his constitutional right to privacy.

While the applicant appeared before the High Court and before this court as a personal litigant (as he did in several other actions

which he instituted against the Minister) he is not a lay litigant as ordinarily understood having qualified in 2000 as a barrister in

Northern Ireland and was subsequently admitted in this jurisdiction.

The action was heard before Laffoy J. over ten days in May and June 2004. The judgment of the High Court ran to fifty nine pages

and for the reasons therein clearly set out the appellant’s claims were dismissed. Having regard to the grounds of appeal relied upon

by the appellant and the course taken by the appeal before this court it is unnecessary to set out in greater detail the appellant’s

claims. For the like reason it is unnecessary to recite the evidence before the High Court, the submissions of the parties to the High

Court or the judgment of the learned trial judge save where that is required for the purposes of this judgment.

The Notice of Appeal

The grounds of appeal are as follows:-

“1. The proceedings before the High Court on the 11th, 12th, 13th,14th, 18th, 19th, 20th and 21st days of May 2004

and the 9th and 10th days of June 2004 were grossly unfair to the plaintiff/appellant:

(a) Ms Justice Laffoy was biased against the plaintiff/appellant in that:

(i) Ms Justice Laffoy engaged in disgraceful attacks upon the plaintiff/appellant’s character and integrity;

(ii) Ms Justice Laffoy belittled the plaintiff/appellant’s EU Citizenship Rights in Ms Justice Laffoy’s in obstructing

meaningful argument in respect of the necessity to have issues arising out of the impact of EU law, on these

proceedings referred to the Court of Justice of the European Communities (under Article 234 of the EC Treaty).

(iii) Ms Justice Laffoy did not approach the proceedings with an open mind;

(iv) Ms Justice Laffoy refused to consider an amendment to the pleadings to give greater effect to the justice of

the plaintiff/appellant’s claim;

(v) Ms Justice Laffoy refused to heed, consider or entertain applications for rulings made by the plaintiff/appellant

during the proceedings;

(vi) Ms Justice Laffoy’s eyes and ears were closed to the evidence before Ms Justice Laffoy justifying

plaintiff’s/appellant’s claims;

(vii) Ms Justice Laffoy’s eyes and ears were closed to the evidence before Ms Justice Laffoy fatal to

defendant’s/respondent’s denial of plaintiff/appellant’s claim;

(viii) Ms Justice Laffoy refused to receive relevant evidence by plaintiff further justifying plaintiff/appellant’s claims.

2. The judgment of Ms Justice Laffoy delivered on the 13th day of July 2004 is grossly unfair in that:-

(a) It is wrong in fact and in law.

(b) It is not the product of reasonableness or fair play.

(c) It avoids mention of and as a consequence conceals the import of evidence before Ms Justice Laffoy justifying

the plaintiff/appellant’s claim in this action;

(d) It avoids mention of and as a consequence conceals the import of evidence by plaintiff/appellant justifying

plaintiff/appellant’s claims in this action;

(e) It avoids mention of and as a consequence conceals the import of legal precedent and legal submissions by

plaintiff/appellant justifying plaintiff/appellant’s claims in this action;

(f) It fails to vindicate plaintiff/appellant’s access to justice – the right to one’s day in court – by ignoring the

fundamental tenet of justice that to hear a litigant should involve truly listening to that party: Ms Justice Laffoy’s

judgment, firstly, fails to demonstrate that plaintiff/appellant’s arguments were seriously considered, secondly,

fails to demonstrate that the scales of justice were tipped by the weight of reason not prejudice or caprice.

3. Ms Justice Laffoy’s utterances and treatment of the plaintiff/appellant combined to deny plaintiff/appellant a fair

and impartial hearing contrary to Article 6 of the European Convention for the Protection of Human Rights and

Fundamental Freedoms.”

Proceedings in the High Court

At the commencement of the proceedings in the High Court the appellant accepted that he could not re-litigate matters raised by him

in two previous sets of proceedings and that he could not do so, as he sought to do, by annexing two statements of claim from such

proceedings to the statement of claim in the present proceedings. He likewise accepted that he could not litigate a third set of High

Court proceedings, the High Court Record No. 2744P/1997, John Rooney Plaintiff and Liam Fitzgerald, Patrick Vincent O’Reilly and

Patrick Joseph Hand Defendants which concern the alleged unlawful restriction of his herd and mala fides in relation to the same,

those issues being more properly dealt with in those proceedings.

In her judgment the learned trial judge made a number of findings of fact as follows:-

1. The declaration of the appellant’s holding to be a restricted holding pursuant to Article 12 of the 1989 Order on 7th

April 1993 was a valid declaration. On the basis of the evidence of Mr O’Reilly, Senior Veterinary Officer, there were

reasonable grounds for suspecting that Bovine TB was present in the appellant’s herd. In her judgment the learned trial

judge detailed the evidence which gave rise to the reasonable suspicion.

2. An animal of the appellant in the opinion of Mr Hand the Minister’s veterinary inspector presented as a reactor on the

7th May 1993. The animal was referred to by the learned trial judge as “the contentious animal” and will be so referred to

hereinafter. To be classified as a reactor the test is whether a veterinary inspector believes or suspects that the animal is

affected or is capable of infecting other animals. The contentious animal had reacted to tuberculin and Mr Hand was

correct to classify it as a reactor.

3. The appellant refused to allow Mr Hand to punch and tag the reactor.

4. That Mr Hand and Mr McPhillips were on the plaintiff’s lands lawfully when the test of 7th May 1993 was conducted.

5. The decision of Monaghan District Court of 29th May 1995 and clear tests completed on the 3rd June 1995 and 12th

August 1995 did not alter the status of the contentious animal. The appellant was charged with refusing to permit the

punching and tagging of the animal considered to be a reactor; the charges were dismissed.

6. The appellant refused to allow Mr Patten to conduct a herd test on the 25th October 1995.

7. No proof was adduced of the diseased status of the reactor prior to it being put down. The District Veterinary Officer,

Ballybay, was unable to perform a post-mortem on the animal as it had been opened up and parts removed. Mr Pottie a

Veterinary Surgeon who carried out a post-mortem on the animal at the request of the appellant was not called to give

evidence. The learned trial judge ruled that Mr Pottie’s report was of no probative value.

8. The tests conducted in May and June 1996 were necessary as a pre-requisite to the de-restriction of the appellant’s

herd and there was no delay in conducting those tests.

9. While there was no evidence of Bovine Tuberculosis in the appellant’s herd during the period of restriction, the

procedures and sanctions to which the plaintiff’s holding and herd were subjected are not predicated on the existence of

Bovine Tuberculosis in the herd.

10. Neither the Minister nor any of his officials were motivated by malice or bad faith towards the appellant.

The learned trial judge went on to deal with the plaintiff’s challenge to the scheme. She noted that the respondents did not seek to

rely on res judicata but sought to answer each and every complaint of the appellant. The learned trial judge identified the net issue

arising in the proceedings as whether the appellant had established that between 1993 and 1996 the scheme as operated by the

Minister was invalid in one or more of the manners asserted by the appellant so as to give rise to an actionable wrong on the part of

the Minister which would sound in damages. The learned trial judge held that in essence the case sought to be made by the plaintiff

in these proceedings, that the scheme as operated is ultra vires the Act of 1966, was the same as the case he made in Rooney v

The Minister for Agriculture and Food and Ors [1991] 2 I.R. 539. The Supreme Court there held that the Minister was not obliged

to operate the provisions of section 58 of the Act of 1996 and that accordingly the 1989 Order is not ultra vires the Act of 1996 on

the grounds alleged by the appellant. At the time the acts and omissions on the part of the respondents of which the appellant

complains in these proceedings and which occurred between 1993 and 1996 the Supreme Court had given its imprimatur to a similar

scheme operated in the previous decade. When the present proceedings were initiated, the High Court in Grennan v The Minister for

Agriculture, Food and Forestry, unreported, the High Court 4th October 1995 had considered the implementation of the scheme in

the period with which the present proceedings are concerned. Murphy J. there held that the failure of the applicant to allow tests to

be carried out on his herd under the scheme otherwise than in accordance with compensation under the Act of 1966 amounted to a

refusal to permit his herd to be tested and gave rise to a power to issue a restriction notice under Article 12 of the 1989 Order.

Having regard to the foregoing she found the appellant’s allegation of mala fides unsustainable. The appellant also submitted that he

had a legitimate expectation that the statutory compensation scheme would be implemented and as it had not that he had an

entitlement to damages. The learned trial judge rejected this submission on the basis that the stance adopted by the appellant was

at variance with the legal position as laid down by the Supreme Court in an action in which he was plaintiff and accordingly that to

allow the submission would be to permit a collateral attack on the judgment of the Supreme Court.

The learned trial judge dealt with a submission that the operation of the scheme in relation to compensation on an extra statutory

basis was unconstitutional. The appellant claimed to be entitled to the live market value of an animal destroyed rather than an ex

gratia sum fixed by the Minister. The learned trial judge considered and agreed with the approach of Murphy J. in Grennan v Minister

for Agriculture, Food and Forestry and she held that the scheme was an entirely reasonable method of reconciling the interest of a

herd owner with a diseased or suspected diseased animal and the requirement of the common good in preventing the further spread of

disease and that the scheme accorded with the Constitution.

In relation to the submission that the scheme was contrary to the European Convention on Human Rights and Fundamental Freedoms

the learned trial judge held that the Convention was not part of domestic law of the State at the relevant time and that an action for

damages did not lie for an alleged breach of rights under the same between 1993 and 1996.

The learned trial judge characterised the appellant’s position as follows. The Minister’s officials acted on the authority of the Act of

1966 and the 1989 Order and the question of compensating the plaintiff for a slaughtered animal never arose because of the conduct

of the plaintiff. He refused the compensation which was on offer if he slaughtered the contentious animal. She went on to deal further

with the issue as follows:-

“For the purpose of considering the defendant’s argument, I will assume that there has been a failure to implement

Article 3.2 into national law and that the first and second criteria for State liability laid down in Francovich/Dillenkofer

are complied with. Looked at in the abstract, the third condition would be fulfilled, if, as a result of a failure to transpose

into national law the obligation to ensure that a herd owner is appropriately compensated (whatever, on its proper

construction, that expression entails) for the slaughter of an animal under a Disease Eradication Plan mandated by

Directive 78/52/EEC, a herd owner received no compensation or less than appropriate compensation for a slaughtered

animal thereby incurring loss. That is not what happened in the plaintiff’s case between 1993 and 1996.

What happened was that the plaintiff’s herd was lawfully restricted under Irish law. Shortly thereafter, when the

contentious animal was declared to be a reactor, despite being persistently urged to do so the plaintiff refused to have

the animal slaughtered and to initiate the process which would have led to de-restriction. The plaintiff claims damages

for the losses he alleges flowed from the restriction of his herd between 1993 and 1996. That situation was brought

about by the plaintiff’s own conduct.

It is no answer to the defendants contention that the plaintiff is not entitled to recover because he was the author of

his own misfortunate that, but for the non-implementation of Article 3.2, the plaintiff’s conduct would have been

different. The extent of reparation to which an injured party may be entitled for any breach of Article 3.2 in this

jurisdiction is governed by Irish law and, as a matter of community law as laid down in Dillenkofer, an Irish court is

entitled to enquire whether the plaintiff had taken reasonable care to avoid loss or damage or to limit its extent. The

losses which the plaintiff alleges he incurred between 1993 and 1996 could have been wholly avoided if the plaintiff had

complied with the provisions of the 1989 Order in relation to herd restriction, herd testing and the slaughter of the

reactors, to which he professes having no objection.

Accordingly, the plaintiff has not established that there is a causal link between the losses in respect of which he claims

damages and the State’s obligation to implement Article 3.2.”

Further the appellant failed to produce any evidence that there would be a difference between the carcass value and the reactor

grant on the one hand and appropriate compensation within the meaning of Article 3.2 on the other hand.

The final issue to arise on the pleadings was the claim relating to the “passing of private and confidential sensitive constitutional

communications.” This concerned a letter written by the appellant on the 8th March 1994 to the President of Ireland, the Ceann

Comhairle of the Dáil, the Taoiseach and the Chief Justice in which he made specific complaints against six former and serving judges

of the Superior Courts alleging improper exercise of their judicial functions. That letter was discovered by the defendants in the

present proceedings. The learned trial judge held that it was properly discovered and that no right to privacy could attach to the

appellant in relation to the same.

Proceedings before the Supreme Court

In opening the proceedings the appellant withdrew the allegation of bias against Laffoy J. Accordingly the several matters listed under

that heading at 1 in the grounds of appeal were not pursued. Nonetheless it was appropriate for the purposes of the appeal to

consider the transcript of the proceedings in the High Court. Having considered the transcript I am satisfied that the allegation of bias

could not be supported and that it was appropriate that the appellant did not persist with this ground.

The remaining grounds 2 and 3 cited above are couched in the most general terms. However the appellant’s written submission set

out specific complaints as to the manner in which the learned trial judge conducted the trial and dealt with various applications made

by the appellant. The respondents in their written submissions dealt with each complaint without objection as to whether or not it

was within the grounds of appeal. In dealing with each individual complaint this court has had the benefit of the learned trial judge’s

careful and detailed judgment and a transcript of the ten days of hearing. In what can only be regarded as a significant concession to

the appellant the learned trial judge dealt with matters which were clearly res judicata. Further, a number of the matters raised could

be considered as merely restating the grounds of appeal on the issue of bias: notwithstanding this it is proposed to deal with each of

these grounds in the light of the appellant’s written submissions upon which he relied before this court. I propose to deal with the

same in fairness to the learned trial judge against whom in the notice of appeal at 1 serious allegations are made although the same

have now been withdrawn.

I propose to deal with each of the matters raised in the appellant’s written submissions in relation to grounds 2 and 3 in the notice of

appeal in the sequence in which they are therein set out.

1. The learned trial judge failed to deal with Article 15 of the Constitution and the decision of the Supreme Court in

O’Neill v Minister for Agriculture and Food [1997] 2 I.L.R.M. 435.

The appellant argued that an administrative scheme could not validly be used to implement EC regulations and that

implementation could only be achieved by laws passed by the Oireachtas. The appellant’s claim was for damages. The

learned trial judge for the purposes of the judgment assumed that there had been a failure to implement the relevant

article into national law and I have quoted above the passage from her judgment in which she dealt with the appellant’s

submission on that basis. The appellant, the learned trial judge found as a fact, failed to comply with the provisions of the

1989 Order and for that reason no entitlement to compensation arose. He failed to establish a causal link between the

losses in respect of which he claimed and the State’s obligation to implement Article 3.2 of the Directive. I am satisfied

that the approach adopted by the learned trial judge gave full effect to the provisions of Article 15 of the Constitution

and the decision of this court in O’Neill v Minister for Agriculture and Food.

2. The learned trial judge refused to heed, consider or entertain applications made by the appellant.

The appellant relies on six instances in which applications made by him were not acceded to as follows:-

(i) The appellant asked the learned trial judge to strike down Article 13 of the 1989 Order. The learned trial judge pointed

out that no such relief had been claimed, the only claim being for damages. The learned trial judge refused to permit an

amendment of the pleadings to enable the appellant to claim declaratory relief on the basis that it was at that stage of

the proceedings too late to permit an amendment. I am satisfied that the discretion of the learned trial judge was properly

exercised in this case and that to permit the amendment at that stage of the proceedings would have been oppressive of

the respondents. The appellant has not pointed to any error in principle in the manner in which the learned trial judge

exercised her discretion. In these circumstances this court should not interfere.

(ii) On day 8 of the hearing Mr Fitzgerald, a principal officer in the Department of Arts, Sport and Tourism was being

cross-examined by the appellant. The appellant sought to examine Mr Fitzgerald about a complaint which the appellant

had made to the Ombudsman. Counsel for the respondents objected to the line of questioning on the ground that it was

irrelevant. The learned trial judge refused to allow the line of questioning. Later during the cross-examination of that

witness the appellant again raised the possibility of declaratory relief: the learned trial judge made it clear that she would

not, on the pleadings, grant such relief. Finally the appellant complains that in her judgment the learned trial judge said:

‘while the plaintiff has not sought any relief by way of declaration…’ and that this was an attempt by her to conceal the

appellant’s applications. Having carefully considered the transcript I am satisfied that the question sought to be asked of

Mr Fitzgerald was indeed irrelevant to the issues before the court and in any event was not a proper question for that

witness. The learned trial judge on day 1 of the hearing had made it quite clear that she would not permit an amendment

of the pleadings to claim declaratory relief. The statement contained in the judgment complained of is factually correct:

the appellant’s pleadings did not claim declaratory relief.

(iii) Admission of documents.

During the course of the hearing the respondents made additional discovery. The appellant applied to have the newly

discovered documents admitted into evidence and wished to put them to Mr Fitzgerald in cross-examination. Counsel for

the defendants agreed to the admission of the documents. The learned trial judge carefully considered each of the

documents and ascertained the purpose for which the appellant required to have the same admitted in evidence. The

learned trial judge admitted the documents and permitted two of the respondents’ witnesses, Mr O’Reilly and Mr Patton,

to be recalled so that counsel for the respondents could put the documents to them and the witnesses then being made

available for cross-examination on the documents by the appellant. The learned trial judge stipulated that the cross-

examination should be only in relation to the documents. Having carefully considered the transcript I can find no objection

to the manner in which the learned trial judge proceeded. The appellant refers under this heading to the transcript of day

10 at pages 55, 56 and 101: there is one intervention by the learned trial judge in those pages of the transcript at page

101. The appellant stated:-

“…then Mr Sanfey refers to the fact that there was a failure to plead matters relating to declarations and that any

of the statutory instruments are ultra vires. If your Lordship goes to paragraph 2 of the Endorsement of Claim you

will see that the Bovine TB Eradication Scheme is still there, that it is ultra vires the Diseases of Animals Act.”

The learned trial judge responded:-

“That is an assertion”.

The learned trial judge correctly described the appellant’s pleading as “an assertion”. It was not evidence. She was

endeavouring to assist the appellant. I can see nothing wrong in the intervention.

(iv) Failure to strike out the defence for failure to make proper discovery.

During the course of the trial it emerged that the defendants’ discovery had been incomplete. Additional discovery was

made on the 8th day of trial. The appellant contends that he applied to have the defence struck out for failure to make

proper discovery. Having carefully perused the transcript at the references furnished by the appellant no such application

is to be found. In any event such application is a matter for the learned trial judge to deal with in her discretion and I

would not interfere with the exercise of that discretion in this case.

(v) The learned trial judge attacked the appellant’s character and integrity.

The appellant refers to three passages in the transcript. Firstly on day 5 of the hearing the appellant was cross-examining

the defendants’ witness, Mr O’Reilly. The learned trial judge intervened as follows:-

“You are going around in circles Mr Rooney, and you are being deliberately obstructive, I think, or you are

deliberately obfuscating. The answer Mr O’Reilly gave to your question as to why you did not see the whole file

was, he told us, what the general policy is, he was talking about general policy, he was not specifically relating to

your file.”

The learned trial judge was directing the cross-examination to the evidence given by the witness and she was fully

entitled so to do in the context of the appellant’s cross-examination of Mr O’Reilly which spread across days 5, 6 and 7 of

the hearing. From the transcript it is difficult to ascertain the relevance of a great deal of the cross-examination. I am

satisfied from a perusal of the transcript that the learned trial judge’s intervention was fully justified. Certainly it did not

inhibit the appellant in pursuing his cross-examination with considerable gusto and at great length. Considerably greater

latitude was extended to the appellant than would be extended to counsel in the like circumstances.

The second objection relates to transcript of day 7 at pages 136 and 137. The appellant once again raised the issue of an

amendment to his pleadings to include a prayer for declaratory relief. The learned trial judge remarked that the appellant

was wasting time and asked him to get on with his cross-examination of Mr O’Reilly. The learned trial judge then refused

an application by the appellant to deal with the Sheehy Report which concerned EU funding of the Bovine TB Eradication

Scheme on the basis that it was not relevant to the period with which the appellant’s claim was concerned. The appellant

said he would not accept the learned trial judge’s ruling. Having carefully considered the transcript I am satisfied that the

learned trial judge both in relation to the amendment of pleadings and to the introduction of the Sheehy Report was

correct. I do not see that the learned judge’s comments in relation to these applications could in any way be considered

as reflecting on the appellant’s character and integrity.

The third matter raised occurred on Day 9 when Mr O’Reilly was recalled as a witness. The learned trial judge had already

made clear to the appellant the matters which could be canvassed with him on cross-examination. The appellant sought

to go outside those matters. When he sought to do so the learned trial judge said:-

“You are not getting another bite at that particular cherry, Mr Rooney. These witnesses were recalled because of

deficiencies in the Department’s discovery. You were asked to highlight the documentation which was material and

should have been discovered. I have allowed the witnesses to be recalled and I have allowed you to cross-examine

them in relation to the discovery issue, and I made it clear that we were going to stay within the parameters of

this, you are straying outside it and I am not going to allow it.”

Again I do not see how this intervention by the learned trial judge could in any way constitute an attack upon the

character and integrity of the appellant.

(vi) In her judgment the learned trial judge omitted reference to evidence “damning” the respondents defence to the

action. In relation to this complaint it is sufficient to say that having considered the transcript in its entirety I am

satisfied that the learned trial judge in her judgment, as she was entitled to do, recited the portions of the evidence

relevant to the issues arising in the action and which she had to determine. There is no requirement, and indeed it would

be inappropriate, in the course of her judgment to recite in full the evidence whether relevant or irrelevant and whether

accepted or not. It is sufficient if the learned trial judge recites that evidence which is material to the findings of fact and

law which she makes on the issues which she has to decide. The learned trial judge in an exemplary manner in her lengthy

and detailed judgment did this.

3. The learned trial judge failed to take into account the appellant’s written submissions.

It is quite clear from a perusal of the transcript and the appellant’s submissions that the learned trial judge fully took into

account and considered those parts of the appellant’ submissions relevant to the issues which she had to decide. The

appellant’s real complaint is that his submissions were not accepted.

4. The learned trial judge failed to acknowledge the fact that evidence was before her conclusive of the fact that the

test of 4th to 7th May 1993 was an illegal test.

The assessment of evidence and the acceptance or rejection of any part of the evidence are matters for the trial judge.

Unlike this court, the High Court has the opportunity to observe witnesses and their demeanour while giving evidence. If

there is evidence before a trial judge upon which he can base his decision this court will not interfere. There was such

evidence in this case.

5. The learned trial judge in her judgment misrepresented facts in ten instances.

It is the function of the learned trial judge to make findings of fact upon the evidence before her. If there is evidence to

support a finding of fact this court will not interfere with the same. However the nub of the complaint made by the

appellant is that the learned trial judge in her judgment did not recite parts of the evidence which he considers to be

favourable to him. There was no obligation on the learned trial judge to recite evidence which she did not consider

relevant to the issues before her or which she did not accept. I do not propose to set out in extenso the passages of

evidence which, in the appellant’s opinion, ought to have been included in the judgment. However having regard to the

transcript as a whole and to the issues which were before the learned trial judge I am satisfied that in each of the ten

instances it was neither necessary nor appropriate that the passages of evidence, the exclusion of which from the

judgment is the basis of this complaint, were either necessary or appropriate to be included in the judgment.

6. The learned trial judge made findings of fact which she was not entitled to make on the evidence.

The appellant cites ten findings of fact in relation to this complaint.

(i) Finding that the declaration of plaintiff’s holding on 7th April 1993 was a valid declaration.

The learned trial judge clearly and correctly sets out in her judgment the requirements of the 1989 Order for the

declaration of a holding to be a restricted holding and applied that law to the facts as found. There was clear

evidence which, if accepted, supports the finding that the declaration was a valid declaration. This court will not

interfere with findings of fact which are supported by evidence.

(ii) The learned trial judge was not entitled to make a finding that the contentious animal had reacted positively to

the tuberculin which had been injected on the 4th May 1993 and that Mr Hand was correct in classifying it on the

7th May 1993 as a reactor within the meaning of the 1989 Order.

On a perusal of the transcript I am satisfied that there was evidence to support the finding of fact.

(iii) The learned trial judge was not entitled to find that the appellant refused to allow Mr Hand to punch and tag

the reactor. There was no evidence that the animal was a reactor.

Again on a perusal of the transcript it is clear that there was evidence before the learned trial judge, which if

accepted, supported the findings. It was unnecessary that the contentious animal should be a reactor: it was only

necessary that Mr Hand, a veterinary inspector, believed or suspected that the animal was infected or was capable

of infecting other animals. There was evidence to support the existence of such a belief or suspicion and the

learned trial judge was entitled to so find. This court will not interfere with findings of fact by the learned trial judge

where the same are supported by evidence.

(iv) The learned trial judge was not entitled to find that Mr Hand and Mr McPhillips were on the plaintiff’s holding

lawfully when conducting the May 1993 test.

In her judgment the learned trial judge clearly outlined the relevant statutory provisions and the facts proved in

evidence necessary to support the finding that Mr Hand and Mr McPhillips were on the plaintiff’s holding lawfully.

Perusal of the transcript discloses evidence to support the finding made.

(v) The learned trial judge was not entitled to make a finding that the decision of Monaghan District Court on the

29th May 1995 or the test completed on 3rd June and 12th August 1995 did not alter the status of the contentious

animal as a reactor.

As a matter of law the determination of the District Court at Monaghan and the evidence before that court were

not binding on the High Court. Further the proceedings before the District Court were conducted on the basis of the

criminal standard of proof as opposed to the civil standard of proof applicable in the High Court.

(vi) The learned trial judge was not entitled to make any finding that the appellant refused to allow Mr Patton to

conduct a herd test.

Before the learned trial judge there was the clear evidence of Mr Patton as to what occurred. Accepting that

evidence the learned trial judge was fully entitled to make the finding of fact about which the appellant complains.

(vii) The learned trial judge was not entitled to make a finding about the diseased status of the contentious animal.

The appellant contends that there was overwhelming evidence that the defendants committed perjury in stating

that they genuinely believed the contentious animal was a biological reactor after the events of Monaghan District

Court. It is a matter for the learned trial judge to accept one version of events rather than the other. A state of

mind is a fact and where there is evidence as to a state of mind the learned judge can accept or reject that. Once

there is evidence upon which the learned trial judge can make a finding of fact this court will not interfere with that

finding.

(ix) The learned trial judge was not entitled to make a finding that there was Bovine TB in the contentious animal in

August 1994.

The appellant contends that the learned trial judge was not entitled to make a finding that the contentious animal

was a reactor in the first place and therefore was incorrect in finding that it remained a reactor until it was put

down. I have already dealt with the finding by the learned trial judge that the animal was a reactor for the purposes

of the scheme as a result of the test on the 7th May 1993. On the basis of this primary finding of fact the trial

judge was entitled to draw inferences and in particular an inference that it remained a reactor. The evidence

discloses that the appellant refused on a number of occasions to permit the carrying out of further tests which

could have clarified whether the animal was or was not a reactor. A postmortem on the animal could also have

established this. The appellant had a post mortem carried out by his own veterinary surgeon and because of the

removal of parts it was not possible for the defendants to carry out a postmortem which would have clarified the

position. On the evidence before her the learned trial judge was entitled to infer in all the circumstances that the

contentious animal being a reactor on the 7th May 1993 retained that status for the purposes of the scheme.

(x) The learned trial judge was not entitled to absolve the defendants from their reprehensible conduct towards the

plaintiff.

The issue before the court was the legality or otherwise of the defendants conduct be it reprehensible or otherwise.

The learned trial judge duly made findings on the basis of the evidence before her. On the evidence before her the

learned trial judge was entitled to find that the respondents were not activated by mala fides.

In each of the instances set out above in which the learned trial judge’s findings of fact and inferences from primary

findings of fact are challenged it is important to have regard to the role of this court. This is set out in Hay v O’Grady

[1992] I.R. 210 as follows:-

“The role of this court, in my view, may be stated as follows:-

1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge

who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of

those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.

2. If the findings of fact made by the trial judge are supported by credible evidence, this court is bound by those

findings, however voluminous and apparently weighty the testimony against them. The truth is not the monopoly

of any majority.

3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial

judge to draw inferences of fact (see the judgment of Holmes L.J. in The S.S. Gairloch, Aberdeen Glen Line

Steamship Company v Macken [1899] 2 I.R. 1 cited by O’Higgins C.J. in The People (Director of Public

Prosecutions) v Madden [1977] I.R. 336 at p.339). I do not accept that this is always necessarily so. It may be

that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate

court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact

where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the

trial judge. In the drawing of inferences from circumstantial evidence, an appellate Tribunal is in as good a position

as a trial judge.”

In applying this approach to the complaints made by the appellant in relation to the learned trial judge’s findings of fact

and inferences therefrom I am satisfied that in each of the ten instances raised above there was before the learned trial

judge evidence which, if believed, justified the finding of fact and inferences from the same.

As to the third ground in the notice of appeal I would say this. The learned trial judge displayed indulgence towards the

appellant in the manner in which she conducted the hearing of this case in the High Court. The case took an inordinate

amount of time and, for the defendants, caused far greater expense than would have been incurred than if the case had

been conducted by counsel. The efficient progress of the case was not assisted by the aggressive and truculent attitude

adopted by the appellant to counsel for the respondents, the witnesses called by the respondents and not least the

learned trial judge. Nonetheless the learned trial judge gave every consideration to the appellant consistent with

maintaining fairness to the respondents. A trial must be fair to both parties. I can find nothing in the transcript to support

the allegation that the trial was in any way unfair to the appellant. Indeed had the respondents complained of unfairness

and oppression to them in the manner in which the appellant conducted the proceedings from their institution such

complaint would not be unfounded.

I have attempted to deal seriatim with all the issues raised by the appellant in the written submissions upon which he

relied before this court and where the thrust of the submissions was unclear I have given them the construction most

favourable to the appellant: I did this on the basis that he appears before the court as a lay litigant and notwithstanding

that he is a qualified barrister-at-law.

I would dismiss the appeal.

Rooney v The Minister for Agriculture & Ors