PARRY v Ministry of AGRICULTURE FISHERIES and FOOD

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE MAY,Lord Justice May,LORD JUSTICE KENNEDY
Judgment Date23 May 2002
Neutral Citation[2002] EWCA Civ 864
Date23 May 2002
Docket NumberNo A2/2001/2447/A

[2002] EWCA Civ 864

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

APPLICATION FOR PERMISSION TO RELY ON FURTHER EVIDENCE

APPEAL FROM ORDER OF MR JUSTICE BUCKLEY

Royal Courts of Justice

Strand

London WC2

Before

Lord Justice Kennedy

Lord Justice May

Mr Justice Jackson

No A2/2001/2447/A

Parry
Appellant/Claimant
and
Ministry of Agriculture Fisheries and Food
Respondent/First Defendant
Welsh Office Agriculture Department
Second Defendant

MR H MERCER (Instructed by Francis & Co of Chepstow, Monmouthshire) appeared on behalf of the Appellant

MR K PARKER QC and MISS K SMITH (Instructed by DEFRA Legal Department Whitehall London) appeared on behalf of the First Respondent

The Second Respondent was not represented and did not attend

LORD JUSTICE MAY
1

This case is about milk quotas. The European Community takes the view, no doubt justified, that if dairy farmers were left to themselves they would produce too much milk. There is therefore community legislation designed to control milk production. Member states have milk quotas which they allocate to individual dairy farmers. If the dairy farmer produces more milk than his quota, he, or the group to which he belongs, has to pay levy. The skill of dairy farming is to see that your milk production does not exceed your quota. There are various means of doing this.

2

There is a market in quotas. So dairy farmers can buy or sell quota or they can lease it. If you are in danger of producing milk above your quota, you can, among other things, either sell heifers to reduce your total milk production or you can buy extra quota. Each of these obviously has business consequences.

3

On average, dairy farmers lose about 22 per cent of their milk herds each year. If they want to maintain their milk herd at a constant size they can do this by having or acquiring heifers with their first calf. When the calf is born, the heifer starts to produce milk thereby increasing the volume of the farmer's milk production.

4

Skilful management of a dairy herd in this way can be interrupted by the vicissitudes of farming. One such vicissitude may be if there is disease in the herd and an order is made stopping the farmer moving his cows. If this happens, the farmer cannot dispose of heifers to reduce his herd and thereby reduce his milk production. So the restriction order may result in the farmer producing milk in excess of his quota. That essentially is what happened in 1994 to Mr Parry, the claimant in this case.

5

He is a milk producer in the Welsh borders. Quota years run from 1st April each year. In early April 1994, tests indicated the possibility that there might be bovine TB in his dairy herd. On 12th April 1994, an order was made stopping Mr Parry from moving his cows. The order remained in force until 5th September 1994. During that period Mr Parry was unable to sell heifers and, as a result, in the event exceeded his quota and was subject to levy to the tune, I believe, of some £74,000.

6

Mr Parry's difficulties arose in this way. He had negotiated to buy 55 acres of neighbouring land to add to his farm. To raise money for this, he arranged to sell 200,000 litres of his milk quota at the start of the quota year. The quota which he sold was agreed to be transferred on 1st April 1994 before the restriction order. It was subsequently transferred and registered. This left him short of quota for the year, but he proposed to sell some of his heifers after they had calved in order to re-purchase sufficient quota to cover his year's production. The order stopping him moving his cows interfered with the proposed sale of the heifers. Nevertheless he went ahead with the purchase of the additional land and signed a contract to purchase it on 27th July 1994. He did not buy or lease additional quota to cover the unintended overproduction of milk until October and November 1994 when he acquired an additional 174,509 litres of quota. That however was not enough to avoid some levy for the year.

7

Administration of milk quotas in Wales is the responsibility of the defendants, a public authority. On occasions there may be excess quota which they are able to allocate to farmers who would otherwise exceed their quota. There is a discretionary scheme enabling the Intervention Board to make priority allocation of excess quota to farmers affected by orders stopping them moving their cows. This comes under paragraph 16 of the Dairy Producer Quota Regulations 1994. Paragraph 16 (5) of these regulations provides that a temporary re-allocation of quota shall not be made to a producer who sells quota or buys cows or in-calf heifers unless the Intervention Board is satisfied that the relevant transaction was entered into before the notice stopping the movement of the cows was served. This is designed to prevent the producers fiddling the system of levy for overproduction.

8

The defendants in fact operated an extension of the re-allocation scheme. The essence of this was that they awarded priority allocation of quota, according to a formula whose details do not for present purposes matter, to farmers who exceeded their quota because they had or had acquired in-calf heifers and had to retain them during the period of the restriction order. Mr Parry's complaint is that they did not do the same for farmers who had, by a transaction entered into before the restriction order was served, arranged to sell quota. This is said to be objectively unfair and to entitle Mr Parry to compensation. The defendant did not agree. So Mr Parry brought these proceedings.

9

The action was heard by Mr Justice Buckley who gave judgment on 20th October 2001. He dismissed Mr Parry's claims. This is Mr Parry's appeal against part of Mr Justice Buckley's decision. The main issue before the judge was that Mr Parry's loss resulted from misrepresentation by the defendants both orally and in their explanatory literature. Mr Justice Buckley dismissed this part of the claim upon robust and unappealable findings of fact. So Lord...

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