JUDICIAL REVIEW:

APPEAL AGAINST VALUATION DURING THE 3KM CULL IN CUMBRIA

From: Roy Hathaway
Head, Foot & Mouth Division
Location: Area: 2/02A, 1A Page Street
( : 020 7904 6019 (GTN: 3290)
: 020 7904 6167
: : R.A.Hathaway-official@ahvg.defra.gsi.gov.uk
Date : 6 November 2001

Via: E-Mail
To: Elliot Morley

cc: Private Offices
Kathryn Morton
Jim Scudamore
Andrew Burchill
Lucian Hudson
Neil Thornton
George Trevelyan
Ann Waters (for RODs/DVMs
David Littler
Jeremy Cowper
Mayur Patel
Anne Werbicki
Martyn Smith
John Webb
Eddie Routledge
Ray Anderson - Carlisle
Judy Brooksbank
Kate Ward, FMD Briefing Unit
Paul Dray (For Helplines etc)
Leo Hanmer

Issue

1. A Judicial Review application (Bindloss) about the appeal procedure by which farmers can dispute the valuation of slaughtered animals in the 3km cull in Cumbria.

Timing

2. Routine.

Action

3. For information.

Background

4. The Claimant in this case is a Cumbrian farmer involved in the 3km cull. He says he was told by contractors administering the 3km cull for the Department that the cull applied to his animals was voluntary and that he was expressly told he had no right of appeal against the valuation of his animals. Our investigations confirm that the cull in question was the 3km cull announced on 15 March and put into effect some days later in parts of Southern Scotland and Cumbria. As you know, the 3km cull was predicated on the CVO's advice that the animals concerned were exposed to FMD infection. The cull was therefore carried out under the slaughter and compensation provisions of the Animal Health Act 1981. The CVO swore a witness statement to this effect in a separate judicial review case in March (Kindersley) which the Department won. Locally, however, in Cumbria, the 3km cull was referred to as "voluntary" in part because those farmers who cooperated with it had their animals taken first.

5. Subsequent investigations have shown that the term "voluntary" was widely used in Cumbria to describe the 3km cull and appeared on official documents, including the valuation forms used by the firm (Penrith Farmers' and Kidd's plc - PFK) contracted by DEFRA locally to administer the slaughter policy. Representatives of that firm have confirmed to us that they believed the cull was voluntary and that farmers were therefore not entitled to dispute their valuations; and that they specifically told Bindloss that he had no right to dispute his valuation. This is incorrect; under the 1981 Act and subordinate legislation, farmers have 14 days to appeal against valuations.

Discussion

6. We have been advised by Counsel not to contest this case, since the Court would doubtless conclude from the evidence that the claimant had been denied his right to appeal against his valuation as a result of the way the 3km cull policy was presented and applied in Cumbria.

7. Settling the case will mean the Department will have to pay any legal costs incurred by the claimant. At this stage we do not think they will be substantial. However, we anticipate that other farmers affected by the 3km cull in Cumbria may argue that they too were advised that they could not dispute their valuation and may notify the Department that they wish to be allowed to dispute their valuation outside the normal 14 day limit.

Action being taken

8. This note is being copied to Communications Directorate, the Helplines and to DVMs/RODs. It is important that all understand the true legal status of the 3km cull under the Animal Health Act 1981.

9. The Department is separately defending another claim (Messrs Dockeray) submitted for Judicial Review which challenges the 14 day appeal period. In this case the farmer appealed after the 14-day time limit and the Department turned down the appeal as out of time. However, the facts and circumstances of these two cases are completely different because the case of Dockeray does not involve the Cumbria 3km cull. We will be defending this separate case strongly and we will let Ministers know the outcome as soon as it is known.

Roy Hathaway
Head, Foot and Mouth Division