D Pride & Partners and Others v Institute for Animal Health
| Jurisdiction | England & Wales |
| Judge | Mr Justice Tugendhat |
| Judgment Date | 31 March 2009 |
| Neutral Citation | [2009] EWHC 685 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: IHQ/08/X04050 |
| Date | 31 March 2009 |
[2009] EWHC 685 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon Mr Justice Tugendhat
Case No: IHQ/08/X04050
Mr Richard Lissack QC, Mr Tim Lord QC, Maya Lester (instructed by Thring Townsend Lee & Pembertons) for the Claimant
Michael Beloff QC, Mr Charles Pugh and Mr Ben Cooper (instructed by Manches) for the First Defendant
Mr Jonathan Sumption QC, and Mr Tom Adam QC (instructed by Covington & Burling LLP) for the Second Defendant
Mr Nigel Wilkinson QC and Mr David Barr (instructed by DEFRA) for the Third Defendant
Hearing dates: 23–24–25 February 2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE MR JUSTICE TUGENDHAT
Mr Justice Tugendhat:
INTRODUCTION
Foot and mouth disease (“FMD”) is one of the most contagious diseases affecting livestock. As everybody knows, when an outbreak occurs, the consequences are devastating. Animal movements are one of the key routes for transmission of the disease, so stopping all livestock movements as quickly as possible is critical to the containment of any outbreak of FMD. An outbreak can destroy food supplies and farmer's livelihoods almost overnight because of the wide number of cloven-hoofed animals that are affected, the most commonly affected being cattle, pigs and sheep. FMD is listed among the International Organisation of Epizootics List A diseases which have particularly serious socio-economic or public health consequences and are of major importance in international trade of animals and animal products. In the event of an outbreak, all or any of the livestock industry in Great Britain with susceptible animals are affected, through the disease itself and through national movement restrictions.
In August and September 2007 there was an outbreak of FMD in two phases. It was first identified at a farm near Godalming, Surrey, 4.6 kms South West of the facility at Pirbright. That facility was formerly occupied by the Defendants in the well known case brought by a firm of auctioneers: Weller v Foot and Mouth Disease Research Institute [1966] 1 QB 569. In that case Widgery J (as he then was) said at p577C-D:
“Mr. Eveleigh says that, since the defendants should have foreseen the damage to his clients but nevertheless failed to take proper precaution against the escape of the virus, their liability is established. It may be observed that if this argument is sound, the defendants' liability is likely to extend far beyond the loss suffered by the auctioneers, for in an agricultural community the escape of foot and mouth disease virus is a tragedy which can foreseeably affect almost all businesses in that area. The affected beasts must be slaughtered, as must others to whom the disease may conceivably have spread. Other farmers are prohibited from moving their cattle and may be unable to bring them to market at the most profitable time; transport contractors who make their living by the transport of animals are out of work; dairymen may go short of milk, and sellers of cattle feed suffer loss of business. The magnitude of these consequences must not be allowed to deprive the plaintiffs of their rights, but it emphasises the importance of this case.”
If any claims for compensation were brought by any of the farmers in either of those categories (those whose beasts were slaughtered, and those prohibited from moving their cattle), then there is no record of that fact in the law report. But both categories of farmers issued proceedings in the present case.
THE CLAIM
This claim was brought by 14 livestock farmers against the two operators of the facilities at Pirbright, the First Defendant (“IAH”), Second Defendant (“Merial”) and against the Third Defendant named as the Secretary of State for Environment, Food and Rural Affairs (“DEFRA”). The claim is for damages for the losses they allege that they have suffered as a result of the tortious act which they allege the Defendants committed, and which caused the leak of live FMD virus (“FMDV”) from the facilities. The claim is founded on the three torts of negligence, private nuisance, and under the rule in Rylands v. Fletcher.
The Claim Form was issued on 15 October 2008 and served with Particulars of Claim of the same date. On 12 and 20 November 2008 and 5 December 2008 the Defendants issued Application notices. All three Defendants applied to strike out the claims pursuant to CPR Part 3.4(2)(a), on the grounds that the claims disclosed no good cause of action. IAH and Merial applied in the alternative for summary judgment pursuant to CPR Part 24.2 on the ground that the claimants have no real prospect of establishing any liability of the kind that they are alleged to have sustained. These Applications of the Defendants came before me.
Before this hearing the claims of the First to Seventh Claimants were the subject of a settlement made between them, IAH and Merial, with the result that they no longer pursue claims against any of the Defendants. The First to Seventh Claimants are all farmers whose livestock was culled, either because the animals were infected or because they were suspected of being infected. It follows that I am concerned now only with the claims of the Eighth to Fourteenth Claimants (and that D Pride and Partners will have given their name to a case to which they are no longer parties). None of the livestock of the Eighth to Fourteenth Claimants was culled. From this point onwards the words “Claimants” will be used to refer to Eighth to Fourteenth Claimants, except where the context shows otherwise.
THE APPROACH TO BE ADOPTED BY THE COURT
The proper approach of the court to these applications can conveniently be taken from the speech of Lord Hoffmann in Sutradhar v Natural Environment Research Council [2006] UKHL 33; [2006] 4 All ER 490:
“[3] Under CPR 24.2 the court has power to give summary judgment against a claimant if it considers that (a) he 'has no real prospect of succeeding on the claim … and (b) there is no other compelling reason why the case or issue should be disposed of at a trial'… The new power has been described by Lord Woolf MR (in Swain v Hillman [2001] 1 All ER 91 at 92) as salutary:
'It enables the court to dispose summarily of both claims or defences which have no real prospect of being successful. The words “no real prospect of succeeding” do not need any amplification, they speak for themselves. The word “real” distinguishes fanciful prospects of success …
[4] Lord Woolf went on to say (at 94, 95):
'It is important that a judge in appropriate cases should make use of the powers contained in Pt 24. In doing so he or she gives effect to the overriding objectives contained in Pt 1. It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose, and I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant's interests to know as soon as possible that that is the position …
Useful though the power is under Pt 24, it is important that it is kept to its proper role. It is not meant to dispense with the need for a trial where there are issues which should be investigated at the trial.'
[5] These remarks were approved by this House in Three Rivers DC (No 3) v Bank of England [2001] UKHL 16, [2001] 2 All ER 513, [2003] 2 AC 1 (see Lord Hope of Craighead (at [91]–[93]); Lord Hutton (at [134])). In addition, as Lord Millett said in the same case (at [192]) the 'most important principle of all is that justice should be done. But this does not mean justice to the plaintiff alone'. It is not just to a defendant to subject him to a lengthy and expensive trial when there is no realistic prospect of success.
[6] I therefore approach this appeal on the basis that the claimant's allegations of primary fact must (unless plainly fanciful, which is not the case here) be accepted as true and allowance must be made for the possibility that further facts may emerge on discovery or at trial. The question is whether, on these assumptions, he has a real prospect of success.”
Accordingly, I shall first set out the facts as alleged in the Particulars of Claim, together with some background matters of which I have been informed by counsel. At the close of the submissions for the Claimants I was concerned to know whether it is appropriate for me to decide at this stage the issues raised before me, or whether there should be a trial of those issues. I asked Mr Lord (transcript p271–272) if there was anything on the topics upon which he had made submissions to me that might be affected in a manner favourable to the Claimants if there were a trial of the facts, following disclosure in the usual way. At that point he replied that he could see no additional facts that the Claimants need, assuming all the facts pleaded to be proved. But he added that if there were a trial the submissions on the points of law would be conducted in a more thoroughgoing way. Having heard the submissions for the Defendants in reply, Mr Lord had second thoughts. He then considered that at a trial there would be further evidence before the court on the question whether the loss of condition of animals is recognisable in law as physical damage (transcript p413–414). He also submitted that further evidence on the knowledge and culpability of DEFRA would inform the scope of the duty of care. It has not been suggested, that there is any other compelling reason why the issues in this case should be disposed of at a trial, if I find...
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