High Court: County council entitled to impound horse and charge owner



High Court
High Court

The High Court has held that a county council acted intra vires in impounding a horse following an accident, and that it was entitled to demand a fee before returning the animal.

Simon O’Donoghue sought judicial review of Laois County Council’s decision to impound a horse belonging to him. He sought the return of his horse and challenged the right of the county council to demand payment of certain costs and fees by him, before they would return the horse to him.

Background

On 30 October 2019, while out trotting on his sulky with his horse Braveheart, on the Ballyfin Road, Portlaoise, Mr O’Donoghue was involved in a road traffic accident. He fell from the sulky and fell unconscious, which resulted in Braveheart no longer being under his control. He was taken to Tullamore General Hospital by ambulance. An Garda Síochána contacted Laois County Council, who impounded the horse.

On 2 November 2019 Mr O’Donoghue contacted the Council with a view to retrieving his horse, but he was informed over the phone that he must first pay €1,200 before the horse could be returned to him.

Mr O’Donoghue’s solicitor engaged with the Council, and received an email on 15 November 2019 informing Mr O’Donoghue that his horse would be disposed of after close of office on 18 November 2019 if the appropriate fee to reclaim the horse was not made.

Mr O’Donoghue initiated legal proceedings. Leave to apply by way of an application for judicial review was granted by Ms Justice Niamh Hyland by order dated 19 December 2019. He sought interim relief pursuant to Order 84 rule 20(7) RSC prohibiting the Council from taking further steps to dispose of, or destroy, the horse pending trial of the action, an order of mandamus compelling the Council to return his horse, and a number of declaratory reliefs.

In an affidavit, he averred that he had purchased Braveheart approximately 12 months before the date of seizure for €3,000. He said that on 18 September 2019, he had discovered that his horse had gone missing and he reported this the gardaí. On 19 September 2019, he was contacted by Laois County Council, who had found the horse, and they informed him that he had to pay a sum of €1,040 in order to get the horse back. The horse was impounded for a second time following the accident. He averred that the horse was kept in a stable and that it was properly looked after.

A Laois County Council Administrative Officer swore a replying affidavit stating that the Council had been informed that Mr O’Donoghue was travelling in the dark on a public road, with no high visibility clothing and the weather conditions were poor. She was informed that the horse had travelled approximately 2 kilometres, where it was seized and impounded by gardaí, having caused damage to several vehicles in a housing estate. The horse was treated for injuries. She said that Mr O’Donoghue was advised that the decision of the Council to impound the horse was subject to appeal, and he was advised as to the procedure for pursuing such an appeal.

Counsel for the County Council submitted that a level of deference should be afforded to the Council in managing its affairs and in the exercise of a reserved function in the promulgation of bye-laws by elected representatives. Counsel relied on the judgment of Mr Justice Garrett Simons in McDonagh v Galway County Council [2019] IEHC 304 “The making of the bye-laws is a reserved function of the elected members and is subject to extensive public consultation under section 13 of the Control of Horses Act 1996. Thus, the setting of the fees has a democratic imprimatur.”

Counsel said that the Council’s intention was to dispose of the horse, and that “dispose” did not mean destroy. The Control of Horses Act 1996 s.2 provides that “dispose of” includes to sell or give away or have destroyed. Counsel argued that Mr O’Donoghue had not appealed to a manager within the Council, and said that there was no basis in law to support the proposition that the legislation must contain a provision whereby someone can challenge the amount charged, or must have a right of appeal to an independent tribunal.

Counsel for the Council said that a mens rea requirement cannot be read into the Act of 1996. Mr O’Donoghue had submitted that because it was not his fault that the horse got loose following the accident, he should not be liable for the costs of capturing and impounding it. The Council argued there was no basis for reading in such a requirement. Counsel relied on the statement of Mr Justice John Hedigan in Burke v South County Dublin County Council [2013] IEHC 185, where a similar argument had been made, but was firmly dismissed: “One might readily sympathise with an owner whose horses were either stolen or released or strayed deliberately by persons unknown. However, that does not mean that the taxpayer should have to bear the cost of rounding up the loose horses. The applicant was the owner and had the enjoyment of the use of the horses. The taxpayer did not.”

Conclusion

Mr Justice Anthony Barr held that Laois County Council was empowered to capture and detain the horse pursuant to s.37 of the Act of 1996. Further, it had an entitlement to dispose of the horse immediately, should it so elect, pursuant to ss.39 and 40, as the horse had been detained on two occasions within a period of 12 months.

The judge said that it was not appropriate to read a mens rea requirement into the Act of 1996. The court said that the Council gave Mr O’Donoghue reasonable time to raise the money owed, rather than disposing of the horse immediately. The court was satisfied that it was not the intention of the Council to destroy the horse.

All decisions of the County Council were appealable; however, no appeal was ever lodged by Mr O’Donoghue. The judge said that the “detention of an animal, the property of a private citizen, is a draconian measure, but this court is satisfied that it is a necessary measure to be carried out by a local authority in line with the relevant legislation.”

The court held that it was intra vires the Council to demand the fees levied by them. The court therefore refused the reliefs sought.

© Irish Legal News Ltd 2020



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