High Court: Galway County Council acted ultra vires in their decision to destroy seized horse due to unpaid fees



High Court
High Court

A man whose horse was seized by Galway County Council and destroyed as a result of unpaid fees incurred as a result of the same seizure has been granted an order setting aside the decision to dispose of the horse by way of destruction.

Stating that the destruction was disproportionate, Mr Justice Garrett Simons also granted a declaration that the Council acted ultra vires in purporting to demand payment of over €3,000, and then relying on the non-payment to destroy the horse.

Background

In February 2018, Galway County Council seized ten horses, one of which was owned by Edward McDonagh, in circumstances where the horse was causing a hazard to road users at the edge of the Headford Road, Co Galway. The Notice of Seizure stated that the owner of the horses could collect them on production of suitable identification, proof of ownership, and payment of all appropriate fees.

Mr McDonagh advised the Council that he was the owner of a Standardbred, skewbald stallion called “Chief of Colours”, and presented a passport issued by The Standardbred and Trotting Horse Association of Great Britain and Ireland. The Council stated that this association was not a passport issuing body authorised by the Department of Agriculture, Food and the Marine in Ireland, that the passport presented had not been lodged with an Irish Passport Issuing Organisation, and that it did not feature on the Irish Central Database.

The Council said that as the keeper of the horse, Mr McDonagh was obliged to lodge the foreign passport with an Irish Passport Issuing Organisation (PIO) for it to be notified to the Department of Agriculture (Central Equine Database).

In order for Mr McDonagh to have the horse returned to his care, he had to produce further documentation and pay the following costs of €2,108.18, comprising:

  • Horse seizure and transport: €510.75
  • Vet fee for health check and marking card: €90.80
  • Bed and breakfast: €363.20
  • Return charge and transport: €553.50
  • Galway County Council Administration: €589.93 

Mr McDonagh challenged the demands of the Council and argued that the horse was on private land and therefore should not have been seized, that the horse was properly registered, and that in view of the fact that the horse was not on public property the costs incurred by the council were not payable by him.

Galway County Council replied asserting the need for necessary proofs, and provided a further breakdown of costs, increased to €3,129.68 in view of the additional nights bed and breakfast.

Correspondence continued between the parties, and ultimately the Council emailed Mr McDonagh’s solicitors on 12 April 2018 stating that if Mr McDonagh did not pay the €3,129.68 by 1pm the following day, the horse would be destroyed.

The horse was destroyed on the evening of 13 April 2018.

High Court

Mr McDonagh instituted judicial review proceedings alleging that the conduct of the local authority in destroying the horse was unlawful. Mr McDonagh relied on Burke v. South Dublin County Council [2013] IEHC 185.

Mr McDonagh maintained that:

  1. A local authority is not entitled to use its statutory power to destroy an animal for the sole purpose of enforcing a contractual debt;
  2. Galway County Council should instead have relied upon section 39(3) of the Control of Horses Act 1996 to recover, as a simple contract debt, any amount which the authority maintains is due and owing to it under the legislation;
  3. The issue of the fees being sought was consistently identified as an issue in dispute;
  4. The local authority had been called upon to refrain from euthanising the horse until that issue was resolved.

Mr Justice Simons said that the challenge to the legality of the initial seizure and detention of the horse is unfounded, as the criteria for the detention of the horse under section 37 of the Control of Horses Act 1996 were met.

However, Mr Justice Simons said that in order to validly exercise the power to dispose of a horse, the local authority must have acted in accordance with Galway County Council Bye-Laws and the Control of Horses Act 1996. Mr Justice Simons said there was no reference in either the Bye-Laws or section 39(2) of the Control of Horses Act 1996 to “administration” costs – which were claimed in the breakdown of the costs owed by Mr McDonagh. Mr Justice Simons said “the improper inclusion of this fee item vitiates the demand for payment, and the subsequent decision to destroy the horse”.

Further Mr Justice Simons concluded that it was disproportionate for the local authority to proceed to have the horse destroyed on 13 April 2018 in circumstances where there was an ongoing dispute between Mr McDonagh and the local authority as to whether the former had established his ownership of the horse. He said the local authority should have carried out and completed its assessment of the documentation provided by Mr McDonagh before making a decision to destroy the horse – adding that the extra cost to the local authority for “bed and breakfast” would have been very small.

Mr Justice Simons made an order setting aside the decision of Galway County Council to dispose of the horse by way of destruction. He also made a declaration that Galway County Council acted ultra vires in purporting to demand payment of the sum of €3,129.68 and then relying on the non-payment to destroy the horse, in circumstances where this sum was not calculated in accordance with Schedule B of the Galway County Council Bye-Laws 1998.

In respect of damages claimed by Mr McDonagh, and considering the value of the horse had been “given variously at €1,500 and €35,000”, Mr Justice Simons adjourned the matter to allow the parties to consider whether an agreement could be met without incurring further costs before the High Court, noting that the legal fees to date were in excess of €60,000.

  • by Seosamh Gráinséir for Irish Legal News

© Irish Legal News Ltd 2019



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