High Court: Galway County Council must pay €2,000 to the owner of a horse it illegally destroyed
Galway County Council has been ordered to pay €2,000 in damages to the owner of a horse which it destroyed in April 2018.
The High Court previously found that the Council had acted ultra vires in destroying the horse, and Mr Justice Garrett Simons urged the parties to reach an agreement on damages to mitigate against further costs.
Rejecting the Council’s arguments that it was not liable to pay damages, Mr Justice Simons said the Council was liable for its tortious actions in the same way as a private actor.
Decision to destroy horse was ultra vires
In the High Court in May 2019, Mr Justice Simons made an order setting aside the Council’s decision to destroy a horse owned by Edward McDonagh. He also made a declaration that the 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.
In the present judgment, Mr Justice Simons had to consider whether the Council’s conduct gave rise to a liability in damages. He explained that, in order for the party affected by an unlawful action of a public authority to succeed in a claim for damages, they must establish that the ultra vires act constitutes a tort or entails a breach of statutory duty which sounds in damages.
Arguments against the liability to pay damages
Notwithstanding the finding that it acted ultra vires, the Council contended that it was not liable to pay damages to Mr McDonagh. The Council argued that:
- Strong public policy considerations militated against the imposition of liability to pay damages upon public authorities, lest it hamper them in the discharge of their functions. It is suggested that these public policy considerations were not confined to the tort of negligence but extended to all torts;
- The statutory powers under the Control of Horses Act 1996 are exercised for the benefit of the public at large, i.e. as opposed to being for the benefit of a particular class of person, such as horse owners;
- There were procedural shortcomings inherent in judicial review proceedings which made such proceedings unsuitable for the determination of a claim for damages;
- Mr McDonagh failed to establish ownership of the destroyed animal.
Public Authority Liability
Mr Justice Simons identified Glencar Explorations plc v. Mayo County Council (No. 2)  IESC 64 as a useful starting point for examining public authority liability. He then considered Cromane Seafoods Ltd v Minister for Agriculture, Fisheries and Food  IESC 6, in which public policy issues in determining public authority liability under the tort of negligence were examined in more detail.
In Cromane, the majority judgments identified the rationale for not imposing an overly broad duty of care on public authorities – that a public authority should not be impeded from discharging its functions by fear of litigation, and that the courts should not “second guess” the exercise of discretion by public authorities. Mr Justice Simons said it was clear from those majority judgments that the rationale “is largely confined to actions by public authorities which involve the making of policy and/or the exercise of discretion. In particular, the making of decisions as to how the allocation of financial resources is to be prioritised is quintessentially a question of policy. The judgments also attached weight to the obligation on the Minister to ensure compliance with the requirements of EU law, in the form of the Habitats Directive”.
Mr Justice Simons said the rationale underlying the case law did not apply to the administrative action of Galway County Council in the within proceedings, because:
- The unlawful action of destroying a horse was “entirely different” because the liability arose due to the Council’s failure to comply with a condition precedent to the exercise of the statutory power of destruction – i.e. the requirement to serve a valid demand for payment of scheduled fees (required by the Control of Horses Act 1996 and the Galway County Council Bye-Laws 1998). The imposition of liability for a procedural failure of this type did not constitute “second guessing” by the Court – it involved the Court ensuring compliance with the requirements of legislation.
- The imposition of a liability to pay damages in the circumstances of the within proceedings could not realistically have a chilling effect on local authorities in the exercise of powers under the Control of Horses Act 1996 – the only requirement is to ensure the minimal procedural requirements under the Act are complied with.
- There is a direct link between the unlawful action and the financial loss suffered by Mr McDonagh.
- Considering the minority judgment of Mr Justice Frank Clarke in Cromane, the need to guard against giving the State an immunity or excessive protection was applicable to the type of unlawful action in the within proceedings.
Tort of trespass to goods
Mr McDonagh relied primarily upon the tort of trespass to goods, which consists of wrongful interference with the possession of chattels.
The destruction of another person’s property is prima facie tortious (i.e. the wrongful interference with the property involves the tort of trespass to goods); however, the Control of Horses Act 1996 provides for limited circumstances in which the destruction of another person’s horse may be lawful. Mr Justice Simons said that if the Council had complied with the statutory requirements, destroying Mr McDonagh’s horse would have been lawful and would not have given rise to any liability for damages.
Since the Council acted ultra vires in destroying the animal, the “cloak of statutory authority” fell away and could not be relied as a defence to the claim for damages.
Awarding Mr McDonagh €2,000 in damages, Mr Justice Simons said that, in the absence of countervailing public policy considerations, a public authority must be held liable for its tortious actions in the same way as a private actor.
© Irish Legal News Ltd 2020