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Judgment
Title:
McDonagh -v- Galway County Council
Neutral Citation:
[2019] IEHC 304
High Court Record Number:
2018 558 JR
Date of Delivery:
05/10/2019
Court:
High Court
Judgment by:
Simons J.
Status:
Approved

[2019] IEHC 304
THE HIGH COURT

JUDICIAL REVIEW

2018 No. 558 J.R.
      BETWEEN
EDWARD McDONAGH
APPLICANT
AND

GALWAY COUNTY COUNCIL

RESPONDENT

JUDGMENT of Mr. Justice Garrett Simons delivered on 10 May 2019.

INTRODUCTION
1. These proceedings concern the exercise by a local authority of its statutory powers under the Control of Horses Act 1996. This Act confers upon a local authority a power to detain horses, and, in certain circumstances, to destroy a horse which has been detained. On the facts of the present case, Galway County Council made a decision to destroy a horse on the basis that there were fees of €3,129.68 outstanding in respect of inter alia the transportation, housing and veterinary care of the horse. This figure also included a sum of €589.93 in respect of unspecified “administration” costs.

2. The decision to destroy the animal was made against a background whereby there was an ongoing dispute between the Local Authority and the person asserting ownership of the horse as to whether the latter had established proof of ownership.

3. The person asserting ownership of the horse then instituted the within judicial review proceedings. The proceedings allege that the conduct of the Local Authority in destroying the horse was unlawful. In this regard, the Applicant relies on the judgment of the High Court (Hedigan J.) in Burke v. South Dublin County Council [2013] IEHC 185. The Applicant maintains that a local authority is not entitled to use its statutory power to destroy an animal for the sole purpose of, as the Applicant characterises it, enforcing a contractual debt. The Applicant pleads that 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. The Applicant also pleads that the issue of the fees being sought was consistently identified as an issue in dispute, and that the Local Authority had been called upon to refrain from euthanising the horse until that issue was resolved.

4. For the reasons set out in detail herein, I have come to the conclusion that, in the particular circumstances of this case, the Local Authority acted precipitously in arranging to have the horse destroyed. First, there is no evidence before the court to demonstrate that the Local Authority was authorised under the Bye-Laws to recover an amount of €3,129.68. In particular, the Bye-Laws do not authorise the charging of fees in respect of “administration”. Secondly, it was disproportionate to destroy the animal in circumstances where there was an ongoing dispute as to whether the Applicant had established proof of ownership, and where the Local Authority had indicated that it would assess additional documentation which had been provided by the Applicant. Thirdly, the Local Authority should at least have considered the option of disposing of the horse by way of sale rather than destruction.

FACTUAL BACKGROUND
5. The Applicant purports to be the owner of a horse referred to as “Chief of Colours”. This horse was detained by officials of Galway County Council (hereinafter “the Local Authority” or “Galway”), acting in conjunction with members of An Garda Síochána, on 11th February 2018. The horse was detained pursuant to the provisions of section 37 of the Control of Horses Act 1996.

6. One of the relevant officials of the Local Authority, Mr Shane Coogan, has sworn an affidavit to the effect that the horse was seized in circumstances where it was causing a hazard to road users at the edge of the Headford Road, Co. Galway. Mr Coogan avers that the horse was one of a total of ten equines posing a danger to persons or property.

7. Mr Coogan has exhibited a copy of the Notice of Seizure and Detention of a Horse(s) dated 11th February 2018. It is stated as follows at the end of the Notice.

      “The owner(s) of the horses may collect the horse(s) on production of suitable identification, proof of ownership in the form of a copy of horse passport/licence; micro-chip number; proof of lease/access to equine registered lands for the keeping of the animal(s) and the payment of all appropriate fees.

      Please take note that if the owner does not collect the horses within 5 days from the date of this notice, the Council will dispose of the horses in accordance with Galway County Council’s Bye-Laws and the Control of Horses Act 1996. Galway County Council reserves the right to retain the horses pending any prosecution it might take.”

8. The Applicant has consistently queried whether the horse was in a public place at the time when it was seized. The implication being that, in truth, the horse had been wrongfully removed from private lands. However, in circumstances where the Applicant has not adduced any direct evidence to the effect that the horse was removed from private lands, the only inference that this court can draw is that the horse was, in fact, in a public place at the time it was detained.

9. There appears to have been some initial confusion within the Local Authority as to whether or not the horse in respect of which the Applicant is claiming ownership had been detained. Specifically, the Applicant has averred that when he attended at the public counter of the Local Authority on 13th February 2018, he was mistakenly informed that his horse had not been detained. At all events, this mistake was soon corrected, and by 16th February 2018, the Local Authority officials confirmed that they had detained a horse which met the description of the horse in respect of which the Applicant claims ownership.

10. The Local Authority subsequently wrote to the Applicant on 26th February 2018 in the following terms. (This letter appears to have crossed with a letter of the same date from the Applicant’s solicitors).

      “You presented to the housing section public counter on Friday the 16th of February 2018 at 0900 and advised that you are the owner of a Standardbred, skewbald stallion which was seized by Galway County Council over the weekend of the 11th of February 2018. You presented a passport issued by The Standardbred and Trotting Horse Association of Great Britain and Ireland, (displaying the chip number […]) this association is not a passport issuing body authorised by the Department of Agriculture, Food and the Marine in Ireland. The passport you presented has not been lodged with an Irish Passport Issuing Organisation and does not feature on the Irish Central Database.

      As the keeper of the equine you are obliged to lodge the passport (which is considered to be a foreign passport) with an Irish Passport Issuing Organisation (PIO) – in order that it is notified to Department of Agriculture (Central Equine Database).

      The Irish PIO will examine the passport when it is being lodged and they will be in a position to advise whether it is a valid identification document, and if not, they can advise you on how to procure a compliant identification document for the equine.

      Furthermore you advised that you want your horse to be returned to you as soon as possible.

      In order for the Council to consider returning the horse to your care, you must tender proof for the following:


        (a) Proof of ownership of the horse such as a copy of the correct & appropriate horse passport as issued by the relevant Irish Authorities, microchip number & photographic evidence.

        (b) Proof of written confirmation of the accommodation and sustenance arrangements in place for the horse, such as proof of lease agreements or land ownership. Please note that any lands proposed for the keeping of the horse will be subject of an assessment of suitability by Galway County Council and the decision on suitability of nominated lands will be made based on the inspector’s findings.

        (c) Equine registration number of the leased/owned lands or premises where the animal will be kept.

        (d) Payment of costs to the Council.


      The breakdown of costs are:

        (1) Horse seizure and transport - €450.00 plus vat @ 13.5% = €510.75.

        (2) Vet fee for health check and marking card - €80.00 plus vat @ 13.5% = €90.80.

        (3) Bed and breakfast per night - Sunday night 11th February to Monday night 26th February €20.00 x 16 nights - €160.00 plus vat @ 13.5% = €363.20.

        (4) Return charge and transport - €450.00 plus vat @ 23% = €553.50.

        (5) Galway County Council Administration = €589.93


      Total cost including vat= €2108.18.

      Please note that each additional night beyond the 26th of February 2018 incurs an additional charge of €20 plus vat @ 13.5%.

      The proofs listed above must be presented to the County Council before 1pm on the 5th of March 2018.”

11. This letter was responded to on behalf of the Applicant by his solicitors, Rhatigan & Company Solicitors. The solicitor’s letter is dated 14th March 2018. As noted earlier, the Applicant disputes the Local Authority’s assertion that the horse was detained while it was in a public place. The Applicant’s position in this regard was set out in detail in the solicitor’s letter, and, in particular, it was alleged that the field in which the horse had been maintained is adequately fenced.

12. Insofar as proof of ownership is concerned, the solicitor’s letter stated as follows.

      “Furthermore, you have advised in your letter that the passport presented by our client which was issued by the Standardbred and Trotting Horse Association of Great Britain and Ireland is an association that is not a passport issuing body authorised by the Department of Agriculture Food and Marine in Ireland and whilst we find this somewhat hard to believe we are liaising with the Department in relation to this matter. However, we have contacted the Standardbred and Trotting Horse Association of Great Britain and Ireland who have advised us that at some stage last year the association did transfer its Irish horses onto the Irish stud book and we have now checked with the Irish Harness Racing Association who confirm that Chief of Colours is on their books with the owner being recorded as Edward McDonagh. We are awaiting instructions as to how to convert our client’s current passport into one from the Irish Harness Racing Association and in the meantime, it is perfectly clear that our client is the owner of the horse that you ceased (sic). Therefore, we fail to see why you are insisting on proof of ownership unless it is your position that our client is not the owner of the horse despite the horse being micro chipped and if that is your position you might set that out in writing. In relation to the ownership of the land that our client will keep his horse on, we fail to see what relevance this is to Galway County Council so long as the land that the horse is kept on is not public property and our client will have no difficulty giving an undertaking that his horse will not be kept on public property.

      Finally, in relation to the payment of costs to the Council, it would be our view that the costs in question are only payable if our client’s horse was in fact on public property when it was ceased (sic) by Galway County Council and therefore we would call upon you to furnish us with your proof that this is the case pending what our client is told by the Gardaí.

      Our client has no desire for Galway County Council to be incurring costs in keeping his horse and it is clear that he is the owner of the horse in question. We fail to see why Galway County Council is continuing to put itself to the expense of holding the horse when despite the fact that there may not be an Irish issued passport for the horse, it is clear that the horse is on our client’s property and the horse will not be kept on public property. We would call upon Galway County Council to immediately return our client’s horse without any further delay and if Galway County Council is not prepared to return our client’s horse then at the very least, we would call upon you by return to advise us as to the location of our client’s horse and confirm that our client can arrange for his Vet to examine his horse to ensure that his horse is being properly maintained by Galway County Council and in this regard we look forward to hearing from you.”

13. A letter was sent by Galway County Council on 6th April 2018 to Mr Edward McDonagh, the Applicant, at his home address. This letter refers to the earlier letter from the Local Authority of 26th February 2018, and, in effect, repeats the proofs to be presented by the Applicant. A further breakdown of costs is provided; this time it has been updated to reflect the additional nights of “Bed and Breakfast”. The revised figure for costs is €3,129.68.

14. The letter concludes as follows.

        “I again call upon you to furnish to the Council the necessary proofs by 1pm on Friday the 13th April 2018.

        If the Council have not received the required proofs by this time on this date an instruction will be issued for the animal to be euthanised.”

15. This letter of 6th April 2018 appears to be the first occasion upon which the Local Authority had indicated in writing to the Applicant an intention to destroy the horse. In the event, the horse was, in fact, destroyed a mere seven days later, i.e. on 13th April 2018.

16. This letter from the Local Authority was responded to by the Applicant’s solicitor on 12th April 2018. The key passages of the solicitor’s letter are as follows.

      “We refer to previous correspondence in relation to the above matter resting with your letter of the 6th inst sent directly to our client, the contents of which we note. First of all, we note that you refer to our letter of the 14th ult and state that our letter does not address the necessary proofs required by the council in order for the council to consider returning the horse to our client. However, you have failed to respond to our letter of the 14th ult which raises a number of valid issues that Galway County Council needs to deal with. First and foremost, we would call upon you to confirm the whereabouts of our client’s horse and confirm furthermore that our client can have his horse inspected by his own vet to ensure the animal’s wellbeing.

      In addition to your failure to respond to our correspondence you are now corresponding directly with our client threatening to euthanize his horse unless the proofs you have requested are furnished by 1.00 pm on Friday the 13th April 2018 which is not only completely unfair on our client and the animal itself but it is also complete abuse of power by Galway County Council. We would refer you again to our letter of the 14th ult wherein you were put on notice that our client’s horse is a very valuable stallion and our client will be holding you responsible for any loss accruing to him as a result of the actions of Galway County Council.

      In relation to the proofs requested, we have contacted the Irish Harness Racing Association who have confirmed to us that our client’s horse is micro chipped and is on the Irish Stud Book with its registered owner as our client. Furthermore, and more importantly, the Irish Harness Racing Association has advised us that an equine passport is a lifetime document and that the equine passport issued by the Standard and Trotting Horse Association of Great Britain and Ireland is a perfectly valid equine passport and the Irish Harness Racing Association is at a loss to understand why it is not being recognised by Galway County Council. We are further advised by Irish Harness Racing Association that no authority issuing equine passports can issue a second passport for a horse who already has a valid passport and accordingly we would call upon you to confirm in writing that our client has satisfied the proof of ownership.

      In relation to the remainder of the proofs requested, we would advise that our client is renting private land on the Headford Road from a Mr. Sean Fahy and will be obtaining documentary proof of this and furnishing it in early course and we would also advise that our client is liaising with the Department of Agriculture in relation to the equine registration number. In relation to the payment of costs to the council you have failed to deal with the issue raised in our letter of the 14th ult regarding your right to cease (sic) our client’s horse in the first place other than stating that our client’s horse was on public property. We are instructed that our client’s horse has been in the one field for more than three years and our client does not accept that his horse would leave the field in question unless it was taken by staff of Galway County Council or alternatively that the actions of members of Galway County Council who attended at the property caused the animal to escape and obviously, if you are stating that our client is liable for the costs of Galway County Council you must satisfy our client that Galway County Council were within its rights to confiscate the animal in the first place.

      Finally, we would call upon you to desist from threatening to destroy our client’s property until such time as you have dealt with the issues raised in this and our letter of the 14th ult and in this regard we look forward to hearing from you.”

17. As explained by Mr McDonagh in his affidavit, he again attended at the public counter of the Local Authority on 12thApril 2018, and furnished a number of documents to the Local Authority.

18. This attendance is referred to as follows in an email sent from Mr Evan Mulvey of the Local Authority to the Applicant’s solicitors on the afternoon of 12th April 2018.

      “Noel,

      I wish to acknowledge receipt of your letter dated 12th April 2018.

      I can advise that your client Mr Edward McDonagh presented to the public counter at approx. 1435, Mr. McDonagh presented 8 pages of documentation which I photocopied and returned the originals to Mr McDonagh. I verified with Mr McDonagh each page to confirm I had the accurate copies of his documents.


        1. Passport- “The Standardbred & Trotting Horse Association of Great Britain & Ireland x2 pages.

        2. Colour map “coarsefield” & “Carrowbrowne” x 1 page

        3. Department of Agriculture, Food & the Marine – Application for registration of an equine premises x3 pages

        4. AHCS “Herd number details” x 1 page

        5. Letter signed by Sean Fahy regarding grazing land x 1


      I explained to Mr McDonagh that I would revert once the submitted documents had been assessed.

      I reminded Mr McDonagh that the fee of €3129.68 must be paid before 1300hrs tomorrow the 13th April 2018.

      Mr. McDonagh advises that he will not pay the fees.

      I confirm that full payment of the amount sought of €3129.68 MUST be lodged with Galway County Council by 1300hrs tomorrow Friday the 13th April 2018, failure to lodge this sum will result in an instruction to euthanize the horse.”

19. As appears from this email, the Local Authority indicated that the additional documentation submitted by the Applicant would be assessed, and that the official would then revert to the Applicant. There is no evidence, however, before the court that such an assessment was carried out prior to the decision to direct the destruction of the animal less than 24 hours later.

20. The Applicant’s solicitor sent a further letter the next day (13th April 2018). Crucially, the position in relation to the fees was dealt with as follows in that letter.

      “If the fees due to Galway County Council are indeed due, then our client will discharge same in due course but our client will not discharge same today when you are literally holding a gun to his horse’s head and we would reiterate that the manner in which this matter has been dealt with by Galway County Council is a complete abuse of power and if Galway County Council persists in this abuse and destroys our client’s horse then we will be instituting legal proceedings without further notice.”
21. No substantive written response was ever made to that letter.

22. The horse was destroyed on the evening of 13th April 2018. (See Affidavit of Evan Mulvey, paragraph 19). It appears that the principal factor informing the decision to destroy the horse was the failure on the part of the Applicant to pay the fees requested.

LATE AFFIDAVITS
23. The proceedings came on for hearing before me on 9th April 2019. There was some dispute at the hearing as to whether two additional affidavits should be admitted. It seems that an affidavit had been sworn on behalf of the Applicant on the Friday before the hearing (5th April 2019), and this affidavit was then included in the Booklet of Pleadings handed into the court. The Local Authority objected to the admission of this late affidavit on the basis that no leave of the court had been granted for the filing of same. The Local Authority had prepared de bene esse its own additional affidavit in response, to which the Applicant, in turn, objected.

24. I have concluded that neither of the two late affidavits should be admitted. These proceedings are judicial review proceedings and, as such, are subject to careful case management pursuant to Order 84 of the Rules of the Superior Courts. Order 84 was significantly revised in 2011 precisely to ensure the efficient administration of judicial review proceedings. These proceedings were listed for case management / directions on a number of occasions in October and November 2018, and had either side wished to adduce further affidavits, an application in that regard should have been made to the judge in charge of the list. It is not appropriate for parties to decide unilaterally to file further affidavits at the eleventh hour without leave of the court. This is especially so in circumstances where, seemingly, no indication was given to the judge in charge of the list at the Thursday call over that such affidavits would be filed.

25. At all events, I have decided to determine the proceedings on the basis of the affidavits as they stood as of the Thursday call over, i.e. I have not had regard to the two late affidavits.

GALWAY COUNTY COUNCIL BYE-LAWS
26. Section 39(2) of the Control of Horses Act 1996 empowers a local authority to make bye-laws in respect of the following matters.

      “(2) Bye-laws may be made by a local authority for all or any of the following matters in relation to horses detained within its functional area under section 37 —

        (a) the notices to be given or displayed in connection with the detaining of such horses,

        (b) the fees to be paid by the owner or keeper of such horses including fees in respect of their keep, any veterinary services and any transportation,

        (c) the provision of veterinary services for such horses,

        (d) the disposal pursuant to a direction of the local authority in whose functional area a horse is detained or of the Superintendent, as the case may be, of a horse where the owner or keeper is unknown or cannot be found and the time after which such disposal shall take place,

        (e) the disposal pursuant to a direction of the local authority in whose functional area a horse is detained or of the Superintendent, as the case may be, of a horse where the owner or keeper is known and can be readily found, and where the owner or keeper, on request of the local authority, Superintendent or person in charge of a pound or place where a horse is detained within such time as may be specified in the bye-laws—

            (i) fails to pay any fees specified in bye-laws made under this subsection, or

            (ii) fails to produce, where appropriate, a horse licence for the time being in force in respect of the horse granted by that local authority or another relevant local authority if the horse is kept in a control area declared by that authority or another authority, or

            (iii) fails to remove the horse,

        (f) the disposal pursuant to a direction of the local authority in whose functional area a horse is detained or of the Superintendent, as the case may be, where the release of a horse is refused under subsection (5), and the time after which such disposal shall take place,

        (g) such other matters as it considers relevant.”

27. Under section 13 of the Control of Horses Act 1996, the making of Bye-Laws is a “reserved” function, i.e. it is subject to the approval, by resolution, of the elected members of a local authority.

28. Galway County Council made Bye-Laws pursuant to section 39 of the Control of Horses Act 1996. These Bye-Laws came into operation on 1st October 1998.

29. The procedures for the release or the disposal of a detained horse are dealt with under Article 9 of the Bye-Laws as follows.

      “HORSE DETAINED UNDER SECTION 37

      […]


        (e) The horse may be released to the owner or keeper of the horse, on proof being tendered of his/her ownership or right to keep the horse, on production of an appropriate current licence where required under these Bye-Laws and on payment of all outstanding fees and expenses in respect of the horse provided that detention of the horse is not required by the Council or a Superintendent in accordance with Section 39(1)(a) (b) or (c) of the Act, and provided that the Council or the Superintendent is satisfied that adequate accommodation and sustenance and, if necessary, adequate veterinary attention, will be provided for the horse and is satisfied that the horse will not be cruelly treated.

        (f) If the owner or keeper of the horse shall fail to make himself/herself known to the Council or cannot be found within a period of five days from the date of seizure and detention the Council or the Superintendent may dispose of the horse in accordance with these Bye-Laws and the Act.

        (g) If the owner or keeper of the horse is known and can be readily found but on request by the Council, the Superintendent or the person in charge of the pound or place where the horse is kept, within 5 days or such longer period as may be specified in the request of demand being made fails to pay fees due hereunder or fails to produce a current appropriate licence where required under these Bye Laws or fails to remove the horse the Council or the Superintendent may dispose of the horse in accordance with these Bye-Laws and the Act.

        (h) Where the Council or the Superintendent decides to dispose of the horse they may do so by way of sale or destruction. Sale may be by way of public auction or at a market or in any other manner considered appropriate by the Council or the Superintendent.

        (i)(i) Where it is proposed to sell a horse under this Bye-Law the Council or the Superintendent shall cause a notice describing the animal and stating where it was seized, where it is being held, and the time and place of the proposed sale, to be displayed at the Garda Station for the area in which the horse was seized and at the place where it is to be sold.

            (ii) If the proposed sale is otherwise than by way of auction or at a market the time and place of sale may be omitted from the said notice.

            (iii) The said notice shall continue to be exhibited until the horse has been sold or the Council or the Superintendent declares the sale abortive.

            (iv) Where the horse has been sold under this Bye-Law, the Council or the Superintendent shall retain out of the proceeds of sale an amount equivalent to all costs, fees and expenses of any kind incurred by the Council or the Superintendent in accordance with Part III Schedule B and C of these Bye Laws and any balance shall be remitted to the owner or keeper of the horse, if known, or if unknown, shall be retained by the Council.”

30. The position in relation to fees is dealt with as follows at article 9(d).
        “(d) The Council or a Superintendent may recover from the owner or keeper of the horse all pound fees payable in respect of the horse together with all or any other expenses, including fees for keep, care and sustenance, veterinary fees, collection and transportation fees incurred by the Council or the Superintendent in accordance with Part III Schedule B of these Bye-Laws.”
BURKE V. SOUTH DUBLIN COUNTY COUNCIL
31. Both parties placed emphasis on aspects of the judgment of the High Court (Hedigan J.) in Burke v. South Dublin County Council [2013] IEHC 185. On the facts of that case, a horse had been detained by South Dublin County Council and subsequently destroyed. One of the issues in the case was whether, under the relevant Bye-Laws, the local authority was entitled to detain the horses until such time as the fees requested had been paid.

32. The wording of the South Dublin County Council Bye-Laws differed from those of Galway County Council in the following material respect. The requirement to produce a licence, pay requested fees and received a horse were disjunctive rather than cumulative. The High Court concluded, therefore, that the local authority in that case was not entitled to insist on the payment of the requested fees as a condition precedent to the return of the detained horses. Rather, the local authority was confined to its claim in contract in accordance with section 39(3).

33. Leading counsel on behalf of the Applicant, Mr Mícheál P. O’Higgins, SC, relied in particular on the following passages.

      “6.4 Thus pursuant to the Act the local authority is entitled to hold the horses until the licenses for them are produced. Are they entitled to hold them until the fees are paid? The applicant argues that the wording of Bye-Law 6(g) must be carefully read. It provides that the right to dispose of the horses arises if upon demand being made, the owner fails to pay the fees or fails to produce a horse licence and fails to remove the horse. Section 37(1) (f) provides for the right to detain where there is no licence. This is quite logical because s.18 provides that it is an offence to keep a horse without a licence. No provision of the Act however specifically empowers the local authority to detain the horses until the fees are paid. Moreover the wording of the Bye-Law seems to support the argument of the applicant that the power to dispose only arises if all three elements are present i.e. failure to produce a licence, failure to pay the fees and failure to remove the horses. On a literal interpretation this means that where the licence is produced and the owner is prepared to remove the horses, the local authority should release the horses to the owner and if the owner does not pay the fees incurred then the local authority should pursue the remedy provided by s.39(3) of the Control of Horses Act i.e. it should sue him. Here the applicant did obtain licences for the horses and produced them to the local authority. He quite clearly demanded the release of the horses but did not obtain that. He was ready, willing and able to remove the horses, but the local authority refused to release them until payment of the fees.

      6.5 The power to dispose of the horses is a draconian power albeit one necessary in certain circumstances. It is not a criminal sanction but a remedy available where the owner fails to remove the horses. Absent clear statutory provision I cannot see how an owner’s property rights in his horses can be arbitrarily removed in order to enforce a debt save by the order of the Court. Thus, it seems to me that in this case the action of the respondent in disposing of the horses was ultra vires and not in accordance with law.

34. Counsel on behalf of Galway County Council, Mr Stephen Dodd, BL, sought to distinguish the judgment in Burke by reference to the following factors. Counsel emphasises that the language of the South Dublin Bye-Laws differed in a significant respect from that at issue in the present case. More specifically, the requirements in relation to the payment of fees, the production of a licence and failure to remove were cumulative not disjunctive. The disjunctive nature of the requirements under the South Dublin Bye-Laws was central to the finding of the High Court in Burke. Counsel also submits that the applicant in Burke held a horse licence and that there was no dispute as to his ownership of the horse. The Burke judgment was also decided prior to the introduction of the EU (Identification of Equidae) Regulations 2016.

DISCUSSION

Proceedings not moot
35. The Local Authority submits that the proceedings are moot in circumstances where the horse had already been destroyed before the proceedings were instituted. It is further submitted that the grant of declaratory relief would serve no purpose. Reliance is placed in this regard on the judgment in P.V. v. The Courts Service [2009] 4 I.R. 264 (“P.V.”) and Godsil v. Ireland [2015] 4 I.R. 535 (“Godsil”).

36. The concept of mootness ordinarily arises where proceedings have been overtaken by external events with the consequence that the resolution of the underlying dispute no longer has any practical relevance. For example, in the context of immigration law, a challenge to an earlier decision may have become moot because the applicant has since obtained a form of immigration permission which allows him or her to remain in the State. The “wrong” alleged in respect of the earlier decision no longer has any practical significance. See, for example, Lofinmakin v. Minister for Justice Equality and Law Reform [2013] IESC 49, [2013] 4 I.R. 274.

37. Both of the judgments relied upon by the Local Authority are examples of this type of mootness. The central issue in P.V. concerned custody of a child’s passport. The child’s mother had sought to make an ex parte application before the District Court directing the father of the child to surrender the passport. The District Court Clerk refused to list the application for hearing because the form of proceedings was irregular. The mother then made an application directly to the High Court, and that court directed the father to hand the passport over. The applicant next instituted separate judicial review proceedings seeking to challenge the earlier decision of the District Court Clerk. Those judicial review proceedings were dismissed as moot in circumstances where the mother had already obtained the relief which was the purpose for the attempted application to the District Court in the first place.

38. The proceedings in Godsil were rendered moot by a legislative amendment. The plaintiff in those proceedings had sought to challenge legislation which precluded an undischarged bankrupt from seeking election. The proceedings were rendered moot in circumstances where the impugned legislation was amended by the Electoral (Amendment) (No.2) Bill 2014. The Supreme Court concluded that the legislative amendment was made in direct response to the proceedings, and allowed the plaintiff her costs.

39. The facts of the present case are entirely different in that there has been no intervening event which renders the proceedings moot. Instead, the Local Authority seeks to rely on its having done the very thing which the Applicant alleges to have been unlawful. In effect, the Local Authority seeks to resist judicial review proceedings, which challenge its conduct in having the horse destroyed, by reliance on the fact that it destroyed the horse. This argument is entirely circular.

40. I do not think that the concept of mootness should apply in such circumstances. To hold otherwise might well have the unintended consequence of encouraging public authorities, whose actions have been queried, to carry out and complete those actions promptly before legal proceedings can be instituted. The public authority could then seek to avoid review of its actions by arguing that any proceedings are now moot. This would be to place a premium on public authorities acting precipitously and would undermine the rule of law.

41. The Applicant has been granted leave to challenge the conduct of the Local Authority in directing the destruction of the horse “Chief of Colours”. This issue is justiciable, and in the event that the court were to find in favour of the Applicant, it has jurisdiction to grant declaratory relief and damages. There thus remains a live issue as between the Applicant and the Local Authority as to whether the latter’s conduct in directing the destruction of the horse was lawful.

Statutory power to dispose of animal by destruction
42. The first substantive issue to be addressed is the nature and extent of a local authority’s statutory power to destroy a horse which has been detained by it. The legislation allows for the destruction of an animal in three principal circumstances as follows.

      (i). An express power of destruction is provided for under section 41 of the Control of Horses Act 1996. The power is exercisable where a horse is in such pain or distress or state of acute neglect or so severely injured or diseased that it would be in the interests of the welfare of the horse, or the safety, health or welfare of other animals or persons it may come into contact with, to have it humanely destroyed.

      (ii). A horse which has been detained on three or more occasions may be disposed of pursuant to section 40 of the Control of Horses Act 1996. The statutory definition of “dispose of” under section 2 includes to have destroyed.

      (iii). A local authority is empowered under section 37 of the Control of Horses Act 1996 to make bye-laws providing for inter alia the disposal of a detained horse pursuant to a direction of the local authority. In particular, bye-laws may provide for the disposal of an animal where the owner or keeper, on request, fails to pay any fees specified in the bye-laws within such time as may be specified in the bye-laws. The statutory definition of “dispose of” under section 2 of the Control of Horses Act 1996 includes to have destroyed.

      (The relevant extracts from the Galway County Council Bye-Laws have been set out earlier).

43. The structure of the legislation is unusual in that where the Act itself regulates the disposal a horse (section 40), there are extensive procedural safeguards built-in. These ensure a right to be heard on the part of the owner of the horse. There is also a right of appeal to the District Court. By contrast, section 39 purports to allow a local authority to make bye-laws which would enable a local authority to dispose of a horse (including by way of destruction of the animal) merely because there has been a failure to comply with a request to pay fees. It seems somewhat anomalous that such extensive provision should be made for fair procedures under section 40 only to have those largely set at naught by allowing the local authority the freedom to make such bye-laws.

44. Galway County Council seeks to explain this distinction as follows in its written legal submissions.

      “20. It should also be observed that the power to dispose under Bye Laws 9 (g) and (f) is entirely different to the power to dispose under section 40 of the 1996 Act. Under section 40 of the 1996 Act, there is a power to dispose where a horse has been detained on two or more occasions within the last 12 months. This applies even where the owner can produce all proof of ownership, a horse licence and has paid all the fees and expense and is willing to remove the horse. In contrast under Bye-Law 9 (f) the Council can only dispose of the horse where one of these circumstances exist.”
45. I am satisfied that Galway County Council is, in principle, empowered pursuant to its Bye-Laws to dispose of a horse, by way of destruction, in circumstances inter alia where the owner has failed on request to pay any fees specified in the Bye-Laws. This power may be exercised within a period of five days.

46. However, given that the exercise of a statutory power to dispose of a horse, by way of destruction is—to borrow the language of Hedigan J. in Burke v. South Dublin County Council [2013] IEHC 185—a Draconian one, a local authority is obliged to comply with and act in accordance with the requirements of its own Bye-Laws. This is because a decision to destroy a horse potentially engages the constitutional property rights of the owner. The statutory regime seeks to balance (i) the public interest in ensuring that horses do not cause a danger to persons or property or a nuisance, against (ii) the property rights of horse owners. The power must be exercised reasonably and proportionately. In at least some instances, it will be necessary to have regard to the submissions of potentially affected parties (audi alterem partem).

47. On the facts of the present case, I have concluded that the actions of Galway County Council in destroying “Chief of Colours” on 13th April 2018 were ultra vires for the following three reasons.

(i) Sum not properly requested
48. First, the Local Authority has failed to establish that the request to pay the sum of €3,129.68 was properly made in accordance with the Bye-Laws. The Bye-Laws confer upon the Local Authority an extraordinary entitlement to demand payment under the threat of the disposal of the horse at issue. There is no provision made whereby the affected person can challenge the amount requested by the Local Authority nor is there a right of appeal to an independent tribunal. This entitlement to demand payment is in marked contrast to the normal method of enforcing payment, namely as a simple contract debt as provided for under section 39(3) of the Control of Horses Act 1996.

49. In order for such an extraordinary entitlement to be lawful, it is essential that the manner in which the amount demanded is to be calculated is objective and transparent. This is achieved by the requirement under section 39(2)(b) of the Control of Horses Act 1996 that the fees to be paid by the owner or keeper of such horses (including fees in respect of their keep, any veterinary services and any transportation) be specified in the Bye-Laws. 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.

50. The amount of the fees payable under Galway County Council’s Bye-Laws are set out in Schedule B as follows.
DESCRIPTIONAMOUNT OF FEE
(i). Collection and transportation of horse by vehicle from a place where it was found to the place of detention.Actual costs or £100 per horse, whichever is the greater.
(ii). Care and sustenance during the period of detention.Actual costs or £30 per day per horse, whichever is the greater.
(iii). Veterinary attention where provided.Actual costs or £40 per visit per horse, whichever is the greater.
51. As appears, the fees are referable to the three categories of fees identified in Section 39(2)(b) as follows.

      “(b) the fees to be paid by the owner or keeper of such horses including fees in respect of their keep, any veterinary services and any transportation”.
52. Crucially, there is no reference in either the Bye-Laws nor section 39(2) to “administration” costs. Yet, the breakdown of the sum of €3,129.68 demanded by Galway County Council in its letter of 6th April 2018 indicates that a sum of €589.93 is being claimed in respect of “Galway County Council Administration”. There is no legal basis for demanding this payment, and its inclusion in the overall sum of €3,129.68 vitiates the demand for payment.

53. There is a further difficulty with the demand for payment as follows. Schedule B of the Bye Laws purports to set costs by reference (i) to fixed figures, e.g. £30 per day per horse in the case of care and sustenance during the period of detention, and (ii) to “actual costs”. As explained presently at paragraph 68, I have grave doubts as to whether it is lawful for a local authority to set fees other than by reference to objective figures. A reference to “actual costs” is too vague, and does not meet the requirement for legal certainty. It also undermines the public participation provided for under section 13. However, in the absence of a challenge to the validity of the Bye-Laws, this court must treat same as valid. Nevertheless, the Bye-Laws must be interpreted insofar as possible to ensure compliance with the property rights of owners. Accordingly, in circumstances where Galway County Council wishes to rely on the “actual costs” incurred, the Local Authority must vouch for those costs, i.e. evidence should be provided which substantiates that it incurred this level of costs.

54. In the present case, there is no evidence before the court that the sum requested is in accordance with the fees specified in the Bye-Laws. The Local Authority has failed to provide evidence either to the Applicant during the course of the exchange of correspondence in March and April 2018, or to this court, that the sum requested does, in fact, represent the “actual costs”.

(ii) Ongoing dispute as to proof of ownership
55. Galway County Council has discretion to dispose of a horse in the circumstances provided for under the Bye-Laws. As is the case with most statutory discretion, the courts will show some deference to the Local Authority’s decision-making. There are, however, limits to this discretion. The decision to destroy a horse engages the property rights of the owner of that animal. The decision must therefore be proportionate. The Local Authority has cited the judgment of the Supreme Court in Meadows v. Minister for Justice and Equality [2010] IESC 3, [2010] 2 I.R. 701. The principle of proportionality forms part of the “reasonableness test”. This is reflected, albeit in a specific contingency, under section 40 of the Control of Horses Act 1996.

56. On the facts of the present case, I have concluded that it was disproportionate for the Local Authority to proceed to have the horse destroyed on 13th April 2018 in circumstances where there was an ongoing dispute between the Applicant and the Local Authority as to whether the former had established his ownership of the horse. That dispute had rested with verbal representation made by an official, subsequently confirmed in writing by email to the Applicant’s solicitor, that the Local Authority would assess additional documentation provided by the Applicant on 12th April 2018. There is no evidence before this court that such an assessment was, in fact, ever carried out. Certainly there is no evidence of an assessment having been carried out in the intervening 24 hours before the decision to destroy the horse was made.

57. The Local Authority should have carried out and completed its assessment of the documentation provided by the Applicant before making a decision to destroy the horse. It was unreasonable and disproportionate to demand of an individual that they pay what is not an insignificant sum of €3,129.68 in circumstances where the Local Authority might ultimately refuse to release the horse to the individual in the event that the Local Authority was not satisfied of proof of ownership. The so-called “Bed and Breakfast” fees were €20 (plus VAT) per night, and the Local Authority should have held off for as long as it took for the officials to assess the additional documentation. This could not have taken more than a number of days and, accordingly, the extra cost to the Local Authority would have been very small. This is especially so where the Applicant’s solicitor had indicated in his letter of 13th April 2018 that the Applicant would pay the fees requested in due course.

58. Whereas it is correct to say that the Bye-Laws allow the Local Authority to exercise its power to destroy a horse within a very short period of time, namely five days, a local authority may be precluded from exercising its statutory power in this regard as a result of its conduct and/or representations. On the facts of the present case, the events of 12th April 2018 gave rise to a reasonable expectation on the part of the Applicant that an assessment of the additional documentation would be carried out before a final decision was made to destroy the horse. By acting as it did, in a precipitous manner, the Local Authority breached the legitimate expectation of the Applicant.

59. Strictly speaking, it is not necessary for this court to resolve the ongoing dispute between the Applicant and the Local Authority as to the status of the equine passport issued by the Standardbred and Trotting Horse Association of Great Britain and Ireland. This is because the present case is being determined on the basis that the failure of the Local Authority to defer a decision to destroy the horse pending its assessment of the additional documentation furnished by the Applicant rendered its conduct unlawful. I should observe, however, that it is not entirely clear that the Local Authority fully understood the obligations under the Commission Implementing Regulation (EU) 2015/262 (Equine Passport Regulation). In particular, if and insofar as the Local Authority was suggesting that a second equine passport had to be issued or that the passport furnished by the Applicant was “invalid” (as was submitted in oral argument before me), this appears to be mistaken. The purpose of the EU Regulation was to ensure a single identification document for each individual horse. The requirement under Article 27 of the EU Regulation was to lodge an equine passport with one of the Irish passport issuing organisations. It did not require the issuing of an entirely new passport. As I say, it is not necessary to resolve this issue for the purposes of the present proceedings.

60. It was suggested at the hearing before me that the court should infer that there was nothing “new” in the additional documents furnished on 12th April 2018, and that any assessment of the documents would have resulted in the same outcome as the earlier assessments, i.e. a refusal to recognise the Applicant as owner of the horse. With respect, a respondent in judicial review proceedings has a duty of candour to the court. Accordingly, if the Local Authority had wished to make the case that the documentation submitted on 12th April 2018 was inadequate, then this should clearly have been explained on affidavit. If the Local Authority wished to rely on a contemporaneous decision in this regard, then documentation evincing that decision should have been furnished. None of this occurred.

(iii) Possibility of sale / Health of horse
61. Where the Local Authority decides to dispose of a horse, the authority undoubtedly enjoys a discretion under the Bye-Laws as to the precise method of disposal. In particular, the authority has a discretion pursuant to article 9(i) of the Bye-Laws as to whether to dispose of the horse (i) by way of sale, or (ii) by the destruction of the animal in a humane manner (as required under section 39(7) of the Control of Horses Act 1996).

62. As with the exercise of any statutory discretion, the courts will show some deference to the decision-maker to whom the decision has been entrusted under legislation. Having said that, a decision-maker is not entirely at large. In particular, a decision-maker must have regard to relevant considerations in reaching its decision. There are at least two factors to which Galway County Council should have had regard in deciding whether to dispose of the horse by way of the destruction of the animal. The Local Authority is not required to engage in a very formal or detailed assessment of these two factors. However, it is important that there should be some evidence that regard has been had to same before a decision to destroy an animal is made.

63. First, the Local Authority should have given some consideration to whether the horse might have been disposed of by way of a sale. Depending on the sum likely to be achieved in such a sale, it might have been possible to defray the costs incurred by the Local Authority itself, with any surplus being remitted to the owner. See article 9(i)(iv) of the Bye-Laws.

64. Secondly, some consideration should have been given to the state of health of the animal. It would be disproportionate for a local authority to decide to destroy an otherwise healthy animal merely in order to avoid continuation of payment of “Bed and Breakfast” fees for a short period pending the assessment of the documents furnished on 12th April 2018.

65. There was some suggestion at the hearing before me on 9th April 2019 that “Chief of Colours” was not in a healthy condition. However, there is no affidavit evidence to this effect. Such documentary evidence as there is consists of a copy of the report of a vet prepared shortly after the seizure and detention of the horse in February 2018. See Exhibit “SC1” to Mr Coogan’s affidavit. The report indicates that on initial examination on 11 February 2018, the horse was found to be shivering and in what appeared to be a depressed state. A long-term acting antibiotic and steroid injection were recommended. The report concludes by stating (i) that the animal was seen again on the following day (12 February 2018); (ii) that the vet’s recommendations with regard to husbandry had been adhered to; and (iii) that no follow-up up treatment was considered necessary. This report does not therefore support an argument that the health of the animal justified its destruction. Moreover, there is no evidence of the animal’s condition as of April 2018.

OBITER DICTA: GALWAY BYE-LAWS
66. Counsel on behalf of the Local Authority, Mr Dodd, BL, submitted firmly but politely that this court has no jurisdiction to entertain a challenge to the validity of the Bye-Laws in circumstances where same had not been pleaded. Counsel relies, by analogy, on the judgment of the High Court (Clarke J.) in Simmonds & Real Olive Co. Ltd v. Ennis Town Council [2012] IEHC 282 (impermissible collateral attack on bye-laws).

67. This submission is well made insofar as it goes. However, in circumstances where cases concerning the application and interpretation of the Control of Horses Act 1996 do not often come before the High Court because of the limited value of the horses involved, I think that it is appropriate to voice this court’s concern—albeit by way of obiter dicta—as to the manner in which the Galway Bye-Laws purport to set out the fees payable. As counsel has correctly pointed out, Bye-Laws which have been adopted as a reserved function of the elected members of a local authority carry a certain democratic legitimacy. (Counsel cited the judgment of the High Court (Cooke J.) in Island Ferries teo v. Galway County Council [2013] IEHC 587). This is reinforced by the extensive provision made for public participation under section 13 of the Control of Horses Act 1996.

68. Precisely for these reasons, Bye-Laws should be self-contained and address all relevant issues. Section 39 envisages that Bye-Laws will determine the fees payable in respect of the keep of a horse, any veterinary services and any transportation. Whereas Schedule B of the Galway Bye-Laws does indicate a fixed sum for each category, legal certainty is then undermined by the inclusion of an alternative basis of calculation, namely “actual costs”. This subjective criterion undermines the requirement for transparency and predictability.

69. It must be doubtful whether it constitutes compliance with section 39 for the Local Authority to use vague terms such as “actual costs”. The purpose of reserving the decision to make Bye-Laws to the elected members and for public participation under section 13 is to ensure democratic accountability, and, further, to ensure that members of the public know precisely what is required of them under the Bye-Laws. There is especially so where there is no procedure under the Bye-Laws by which an affected party can challenge these figures, and the Local Authority can proceed to destroy a horse within a period of five days in the event of non-payment.

CONCLUSIONS
70. The challenge to the legality of the initial seizure and detention of the horse is unfounded. On the basis of the affidavit evidence before the court, it is clear that the criteria for the detention of the horse under section 37 of the Control of Horses Act 1996 were met.

71. Galway County Council is empowered pursuant to the Bye-Laws to dispose of a horse, by way of destruction, in circumstances inter alia where the owner has failed on request to pay any fees specified in the Bye-Laws. This power may be exercised within a period of five days.

72. In order to constitute a valid exercise of this power, the Local Authority must have acted in accordance with the Bye-Laws and the Control of Horses Act 1996. In particular, the Local Authority must demonstrate that the amount which the owner has been requested to pay has been calculated by reference to the level of fees specified in the Bye-Laws. There is no reference in either the Bye-Laws nor Section 39(2) to “administration” costs. Yet, the breakdown of the sum of €3,129.68 demanded by Galway County Council in its letter of 6th April 2018 indicates that a sum of €589.93 is being claimed in respect of “Galway County Council Administration”. The improper inclusion of this fee item vitiates the demand for payment, and the subsequent decision to destroy the horse. The Local Authority has also purported to rely on the power under the Schedule of the Bye-Laws to fix the fee by reference to the “actual costs” incurred. The Local Authority has failed to provide evidence either to the Applicant during the course of the exchange of correspondence in March and April 2018, or to this court, that the sum requested does, in fact, represent the “actual costs”.

73. On the facts of the present case, I have concluded that it was disproportionate for the Local Authority to proceed to have the horse destroyed on 13th April 2018 in circumstances where there was an ongoing dispute between the Applicant and the Local Authority as to whether the former had established his ownership of the horse. The Local Authority should have carried out and completed its assessment of the documentation provided by the Applicant before making a decision to destroy the horse. The so-called “Bed and Breakfast” fees were €20 (plus VAT) per night, and the Local Authority should have held off for as long as it took for the officials to assess the additional documentation. This could not have taken more than a number of days and, accordingly, the extra cost to the Local Authority would have been very small.

74. In circumstances where the Local Authority has decided to “dispose” of a horse, it has a discretion pursuant to the Bye-Laws to do so by way of the sale of the horse or by the destruction of same in a humane manner (as required under section 39(6) of the Control of Horses Act 1996). In exercising this discretion, a Local Authority should give some consideration (i) to whether the horse might have been disposed of by way of a sale, and (ii) to the state of health of the animal.

PROPOSED ORDERS
75. For the reasons set out herein, I propose to make an order in terms of paragraph (d)(ii) of the Statement of Grounds setting aside the decision of Galway County Council to dispose, by way of destruction, of the horse referred to in these proceedings as “Chief of Colours” and bearing the microchip number 985161000736396. I also propose to make 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.

76. The Applicant has made a claim for damages arising from the wrongful and unlawful slaughtering of the horse. See paragraph (d)(vi) of the Statement of Grounds. Neither the issue of principle as to whether Galway County Council is liable to pay damages nor the issue of the quantum of damages were argued before me. Instead, the parties seem to have been in agreement that these issues should await a determination on the threshold issue of whether or not the Local Authority had acted ultra vires. I propose to adjourn this matter briefly to allow the parties to consider whether an agreement can be reached between them on the question of damages. In this regard, I note that the indicative estimate of the value of the horse has been given variously at €1,500 and €35,000. Without in any way prejudging the issue, if the value does lie towards the lower end of the spectrum, then it would seem to be in the interests of both parties to seek to reach agreement rather than to incur further costs before the High Court. In this regard, I note that the Schedule of Costs provided under Order 99, rule 5 of the Rules of the Superior Courts indicates that the combined legal fees to date are in the order of €60,000 (exclusive of VAT).

77. I hasten to add, however, that if the parties cannot reach agreement, then the matter of damages will be listed for further argument at a date convenient to the parties.











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