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Stephen.SmithQC@newsquarechambers.co.uk

 

20th May 2002

Mary Critchley,

Warmwell

 

 

Dear Mary,

 

Thank you for drawing to my attention the statements made by Lord Whitty on 8th May on the matter of the legality of the fmd contiguous cull last year.  I am sorry I have not responded substantively before now, but the demands of my practice precluded me from doing so.  As with the letter I wrote to you on 5th November 2001 in connection with the Animal Health Bill, for ease of reference I shall set out my thoughts in numbered paragraphs:

 

1.      I was surprised and concerned to read that Lord Whitty has recently asserted that the contiguous cull was legal because its operation was:

 

“tested and upheld in the English and Scottish courts.

 

And added:

 

“On the two occasions when the contiguous cull was tested in the courts it was upheld. There was no challenge to the general operation of the cull; therefore, all precedent indicates that the cull was legal.”

 

2.      I presume (because of references he has made on earlier occasions) that the two cases Lord Whitty had in mind when he made these remarks were (as to Scotland) the decision of the Outer House of the Court of Session in the case Westerhall Farms v. The Scottish Ministers on 25th April 2001; and (as to England) the decision of Mr. Justice Mitting sitting in the High Court in the case MAFF v. Winslade on 22nd May 2001.  I became familiar with each of those decisions when (or perhaps even before) I became involved in the later case of MAFF v. Upton, a decision of Mr. Justice Harrison on 21st June 2001.  The Upton case has become more popularly known as “The Grunty the Pig Case”.  I have since discussed the Winslade case with the junior counsel who appeared for the unfortunate farmer in that case.

 

3.      For the reasons which I shall develop I consider that Lord Whitty’s apparent belief that the contiguous cull should be taken to have been lawfully carried out wherever it was carried out because of the two decisions to which he refers, is seriously misconceived.

 

The doctrine of precedent

 

4.      I can see an argument that, in terms of legal precedent, because the Upton case came after the Winslade  case and the latter was referred to in argument in the former, if any case is to be taken to settle the law in this area it is Upton not Winslade.  That argument would be enhanced by the consideration that the time devoted to the Upton hearing was considerably longer than the time taken in Winslade.  In truth, however, as the facts in each case were different and both cases came on as emergency cases, I doubt that any court looking at the question in the future would decide the point simply by reference to precedent.

 

5.      In any event, I should draw to your attention the fact that precedent is not such a rigid doctrine when applied to decisions of courts of first instance (which both the High Court and the Outer House of the Court of Session are) as contrasted with decisions of appellate courts.  As the point is put in vol. 26 of Halsbury’s Laws of England (4th edition) at para. 580:

 

“ .. the modern practice is that a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance unless he is convinced that that judgment was wrong.”

 

MAFF v. Winslade

 

6.      I have little doubt that a court in the future would attribute little or no weight to the judgment in the Winslade case (and if I had to do so, I would contend that the decision was wrong).  I say this with no disrespect to the Judge who decided the case.  He was left with little option given the way in which the Ministry apparently presented the case.  The only scientific evidence put before the Court came from the Ministry: as in all the cases I am familiar with, the farmer concerned was practically incarcerated on his farm, because he had been served with a Notice restricting movements off and onto the premises pursuant to the Foot and Mouth Disease Order 1983; liaison with him in the preparation of the case was therefore not easy.

 

7.      Although I have not yet had the advantage of reading the Ministry’s evidence in the Winslade case, I imagine that it purported to demonstrate that on the available science it was reasonable for the Minister to form the belief (pursuant to para. 3 (1)(b) of Schedule 3 to the Animal Health Act 1981) that the Winslade animals had been exposed to fmd infection.

 

8.      The problem with the Winslade decision arises because it is now clear that (for whatever reason) not all the available relevant scientific material was put before the Court.  Perhaps the most persuasive available scientific material – material which was very influential in the later decision in the Grunty case – was not adduced, even though that material had been available to the Ministry since before 12th May 2001. That material consisted of two articles by Dr. Alex Donaldson and others which were published in the Veterinary Record on 12th May 2001.  (I shall ignore for present purposes suggestions I have seen made that Dr. Donaldson’s experiments merely confirmed existing fmd wisdom at the start of the 2001 epidemic that the Pan Asiatic Type O strain of fmd (the one responsible for the epidemic) was much less susceptible to airborne spread than other strains; and that the results of his 2001 experiments added little to the results – also published – of experiments Dr. Donaldson had conducted prior to the outbreak.)

 

9.      As you know, Dr. Donaldson is stationed at the Institute of Animal Health at Pirbright in Surrey.  That Institute is one of the foremost – perhaps the foremost – research establishment into fmd worldwide.  Dr. Donaldson is one of the leading fmd scientists at the Institute.  The articles were based on experiments he and his team of scientists had conducted with the UK particulate of fmd (presumably in late February, March or April 2001).   That research had been supported by the Ministry itself.

 

10.  Dr. Donaldson’s conclusions were made available to the Ministry in advance of publication in the Veterinary Record, and were studied before 12th May by Mr. Fred Landeg, the head of exotic diseases at the Ministry.  As I have indicated, sadly I have not yet read the evidence filed by the Ministry in the Winslade case, and I do not know for sure whether it was Mr. Landeg who gave the principal witness statement.  Even if it was not Mr. Landeg who gave the relevant evidence, it would be very odd (and worrying) if the witness had not been informed of Dr. Donaldson’s views.

 

 

 

 

 

11.  Mr. Landeg did give the principal scientific evidence on behalf of the Ministry in the Upton case, and importantly for present purposes, in his third witness statement in those proceedings (made on 20th June 2001), he said:

 

“I am fully aware of these articles and read them (in draft form) even before they were published … Neither of these articles is relevant to the DC policy [the Ministry classed Upton as a ‘Dangerous Contact’ case]. Both articles deal with the issue of transmission of FMD from one animal to another via airborne spread.”

 

(my emphasis)

 

12.  The question of airborne spread was at the heart of the Winslade case. The situation in that case was that some of Mr. Winslade’s cattle had grazed in a field adjacent to a field of the neighbouring farmer.  Sheep and cattle of the neighbouring farmer had been diagnosed as having fmd.  It was, however, not clear whether the diagnosed sheep were sheep which had grazed in the adjoining field to the field in which Mr. Winslade’s cattle had grazed.  Nor is it clear from the judgment how many sheep had been diagnosed as infected or where exactly those sheep had been grazing at the relevant times. 

 

13.  Counsel for the farmer made a number of points as to why the slaughter of Mr. Winslade’s 64 head of cattle should not be allowed to proceed.  The Judge recorded these points in his judgment, and then he said (p.2G):

 

“Those are all reasonable arguments, but they plainly do not exclude the possibility that the disease has been transmitted to the Defendant’s cattle, for instance by air through the hedge from sheep who may well have been grazing in the adjacent field .”

 

(my emphasis)

 

14.  The Judge also went on to make a further point.  He considered the risk to another neighbouring farmer if Mr. Winslade’s cattle were not culled.  That farmer, it appears, had some sheep “not immediately adjacent to the Defendant’s farm but within half a mile of it”.  The Judge was concerned that if the cattle were allowed to live and it turned out they were infected, they could pass the disease to some (non-contiguous) sheep up to half a mile away (the judgment does not record exactly how far away the sheep were, but one infers that it was several hundred yards).

 

15.  There are at least three reasons why the Donaldson material was highly relevant to the facts of the Winslade case. 

 

 

 

16.  First, the Donaldson material directs consideration to the number of animals infected, their situation relative to the susceptible animals on the neighbouring holding, and their species.  According to Dr. Donaldson, 10 infected sheep could not be expected to spread fmd further than 100 yards so as to be infectious to cattle situated downwind of the sheep.  In the Winslade case it does not appear that the Ministry established that any of the sheep in the field adjacent to the cattle were actually infected, or that there were any infected sheep within 100 yards of the cattle.  It is also not clear that the cattle were located downwind of the sheep.

 

17.  You may be aware that 3 days after the decision in the Winslade case, on 25th May 2001 applications were made to the same judge, Mr. Justice Mitting, by the Ministry for injunctions in aid of slaughter in two further contiguous cull cases, viz. Maff v. Willmets & Warne and Maff v. Jordan.  The application in Willmetts & Warne failed; the application in Jordan succeeded.  Again, the Donaldson material does not appear to have been presented to the Court.  The reason I mention these two cases here is because what impressed the Judge in the Willmets & Warne case was the fact that there was a strip of land at least 70 metres wide between the infected and allegedly contiguous farm; and that the cattle spared had shown no sign of disease even though 12 days had passed since the alleged exposure.  The likely distance of spread through the air was clearly therefore a matter of concern to Mr. Justice Mitting in this run of cases.

 

18.  The second reason why the Donaldson material was highly relevant is because of the advice Dr. Donaldson gave as to the approach to be taken on contiguous premises.  Dr Donaldson said that for cattle on premises adjacent to infected premises:

 

“… intensified clinical surveillance would be an appropriate alternative to immediate culling, since fmd in that species is easily recognised and any cases should be quickly identified and eliminated before there was a risk of infectious plumes of virus being generated.”

 

19.  This reason becomes all the more pertinent when it is borne in mind that by the day of judgment 8 days had elapsed since the slaughter of all the animals on the infected premises.  In the 2001 epidemic in the UK, the average incubation period for fmd was only 5 days (see the Upton transcript at p.8G – a similar period had elapsed in that case).

 

20.  The third reason why the Donaldson material was highly relevant was because of its impact on the risk assessment for Mr. Winslade’s non-adjacent sheep-farming neighbour.  According to Dr. Donaldson, even in the event of all of Mr. Winslade’s 64 cattle succumbing to the virus at the same time (almost certainly a significant improbability), the amount of virus they could transmit (assuming favourable wind conditions) would not be sufficient to infect sheep more than 100 yards away.  The lack of risk, as identified by Dr. Donaldson, to animals on an adjacent farm was a factor which encouraged Mr. Justice Harrison in the Upton case to deny the Ministry the injunctions in aid of slaughter sought in that case.

 

21.  Thus the Winslade decision cannot be viewed as authoritative and can certainly not be taken as having legitimated once and for all the contiguous cull, on the identical, similar or any other facts.

 

22.  You have probably asked yourself when reading the above whether the Ministry can be criticised for not having drawn to the attention of the Judge the scientific material which I have described as highly relevant and which we know it had available to it. The answer, I think, is that it may be.

 

23.  You will probably be surprised to know that when a person makes an application to a court in civil proceedings, he is not always obliged to disclose to the court all material, favourable or unfavourable, available to him.  You may also be surprised to learn that for these purposes the Government is treated in the same way as any other litigant.

 

24.  There are a number of exceptions to this general position, but the one which is most material for present purposes is the rule that any party who makes an application to a court without giving the opposing party proper notice of his application (in an injunction case, 3 clear days’ notice) is obliged to make “full and frank disclosure” of all facts material to the decision which the court is asked to make.  The theory being that, without proper notice of the application, the opposing party may not have the opportunity to marshal his defence of the application so as to be able to put all the material facts before the court himself.

 

25.  The rule was developed in cases where the application for relief from the court was made in the absence of the opposing party since he had not been told it was to happen. The phrase until recently used to describe such an application was “ex parte”.

 

26.  The rule may also apply to cases where the opposing party is present, but has been given inadequate notice of the application, as I believe was the case in Winslade (and as was the case in all the fmd slaughter cases in which I was involved last year).  The point is put thus in a well–known book on freezing injunctions (and applies to applications for all types of injunctions):

 

If an application is made ex parte on notice to the defendant and the defendant does not appear, the rule requiring full disclosure applies. Even if the defendant is represented, this is not equivalent to the standard of representation which would be achieved had there been a full and proper opportunity to prepare for the application, and it is considered that unless the plaintiff expressly seeks and obtains from the court dispensation from the need to comply with the duty, the requirement for compliance remains in place.”

 

27.  The application of the rule would have been particularly apposite in the fmd slaughter cases, since the farmers in question were generally unable to leave their properties to consult their lawyers; the lawyers could not visit their clients; access to the latest technology for easy communication was not always to be had; as regards England, the applications were brought on very quickly in London (ie typically a hundred or more miles away from the farm in question); and there was a huge mismatch between the resources which the Ministry (itself situate in London, just minutes from the Court) could throw at the case and the resources available to the individual farmers.

 

28.  I am not aware that the court in the Winslade case granted any dispensation to the Ministry from the requirement to make full and frank disclosure of all material information.  It would be quite extraordinary if it had done so.

 

Westerhall Farms v. The Scottish Ministers

 

29.  I can make my points on this case more shortly.  The case appears to have been dealt with as a three kilometre cull case, rather than a contiguous slaughter case, even though according to para. 10 of the judgment the two farms concerned, Westerhall and Bush of Ewes, shared a boundary at one point.  It appears that sheep at Bush of Ewes located within 3 kilometres of sheep at Westerhall were diagnosed as having fmd. 

 

30.  The judgment does not record how many sheep were diagnosed as infected at Bush of Ewes, nor exactly how far away they were from the nearest Westerhall sheep (though one infers the distance was to be measured in kilometres rather than merely 100s of metres).  Nor does the judgment record the nature and proximity of livestock belonging to other farmers to the animals at Westerhall.

 

31.  The judgment does record that the prevailing wind blew from Westerhall to Bush of Ewes, and that there was a high ridge between the two farms.  It also records that 1000 of the sheep at Westerhall were hefted black-faced ewes which could not easily be replaced.

 

 

32.  The decision to allow the Westerhall cull to go ahead appears to have been greatly influenced by a concession made on behalf of the farmer.  This is recorded in paras. 19 and 32 of the judgment and was to the effect that it was not suggested that there was no risk at all to the Westerhall livestock, rather that it was very unlikely that the Westerhall livestock was infected.  It was not one of the four principal arguments in the Westerhall case that the Minister had made a fundamental error of fact when forming the belief that the Westerhall animals had been exposed to fmd.

 

33.  The Westerhall decision was given on 25.4.01.  It is not clear that the Donaldson material was available to the Ministry by that date.  Had it been available and put before the court, it would have been necessary for the Court to consider points such as those mentioned in para. 30 above.  It also seems inconceivable that the farmer would have made the concession about risk which I have referred to, in the light of the Donaldson material.  According to Dr. Donaldson, even 1000 sheep all infected at the same time are not likely to be infectious to other sheep situate more than 200 metres away downwind.  In contrast, in the Westerhall case, the Court appears to have sanctioned as reasonable a belief that an unspecified number of sheep could transmit fmd many 100s, possibly 1000s, of metres upwind.

 

34.  The Westerhall case had yet a further feature which was touched on by Dr. Donaldson in his article, viz. the high ridge between the two farms.  Dr. Donaldson said that his simulations did not include the effect of topography and continued:

 

“Obstacles such as hills and mountains would cause a plume to deviate, and structures such as urban areas and forests would cause turbulence and a dilution of particle concentration.”

 

35.  In short, for similar reasons as with Winslade, I do not believe that a Court looking at the matter with the benefit of the Donaldson material would regard the Westerhall decision as at all authoritative on the question of the legality of the 3 km cull policy, still less the contiguous cull policy.

 

36.  You may think that many of these arguments might be thought to call into question altogether the legality of the 3 km cull policy (curiously applied only in Cumbria and Scotland, so far as I am aware): if the disease is unlikely to move through the air from one contiguous premises to another, how could it possibly leap kilometres?  I hope you will forgive me if I leave that meal for another day.

 

 

 

MAFF v. Upton

 

37.  Finally there is Grunty’s case.  This of course did not go the Ministry’s way, and appears conspicuous by its absence from Lord Whitty’s statements.  It may be that the Ministry considers that it can ignore the decision in the Upton case because, as I have already pointed out, it characterised that case as a “dangerous contact” case, rather than a contiguous premises case.

 

38.  There are several problems with this view, if it is held; I shall mention just two.  First, the Ministry viewed a “dangerous contact” case as more serious than a contiguous premises case.  As Mr. Landeg put it in his third witness statement in the Upton case (when referring to the Donaldson articles):

 

“Neither of these articles is relevant to the DC policy.  Both articles deal with the issue of transmission of FMD from one animal to another via airborne spread.  However, as explained in my second witness statement, DC arises as a result of the movement of animals, people or vehicles.  These contacts between infected premises (“IPS”) and vulnerable premises poses [sic] a much higher risk than the type of airborne transfer over distances with which the two articles are concerned, and accordingly, as already explained in my second statement, require a tough policy in order to combat it. … In short, the Defendant’s reliance on these two academic articles is a red herring.”

 

39.  The second problem with the view is that the Judge in the Upton case did not accept that the articles were “red herrings” (at p. 15F of the judgment):

 

“I am bound to say I am not impressed by Mr. Landeg’s dismissal of the two articles as red herrings.”

 

40.  The Judge went on to find that airborne transmission was a relevant consideration in that case; that the Donaldson articles were significant; and that he was most influenced by the scientific evidence that even if Mrs. Upton’s animals turned out to be infected “bearing in mind the number of the animals and the distances they are from neighbouring animals, there would not be a risk to neighbouring livestock” (p. 16G).  He concluded that monitoring and blood testing, not slaughter, was “the proportionate response to the situation in which we now find ourselves” (p.17G).

 

41.  I think you already know that it soon thereafter became apparent from the blood tests that neither Grunty nor any of the rare breed sheep spared on that day had fmd, that none of them subsequently succumbed to fmd, and that at least some of the sheep have successfully delivered lambs this Spring.

 

 

 

 

Conclusion

 

42.  So where does all this leave Lord Whitty’s proclamations of legality?  I apprehend that you can judge the matter for yourself based on what I have written.  If I were a betting man, I certainly would not put money on Lord Whitty being right (and would counsel everyone else not to): in my opinion, for the reasons I have given, the decisions in Winslade and Westerhall should not be considered as authoritative.

 

43.  Indeed, the Ministry itself did not ‘put money’ on the issue last year: after the Upton decision, so far as I am aware, the Ministry declined to force the issue of the legality of the contiguous cull. I or my colleagues were several times put on standby by Burges Salmon to attend court the next day on behalf of farmers intent on resisting contiguous culls, only for the Ministry to back down at the last minute in favour of “testing and monitoring”.  Peter Jackson, one of the Claimants in the Public Inquiry judicial review proceedings, was just one such case.

 

44.  The Ministry’s reluctance to litigate further on the point – whilst a relief to the individual farmers concerned – was a sadness to the lawyers, as we watched what we considered to be a policy fundamentally flawed in its conception and its application, continuing to be enforced with little apparent mercy through areas of dense sheep populations such as the Ribble Valley, the Forest of Bowland, Craven and the Yorkshire Dales.

 

Apologies for having gone on at such length, again.

 

Yours sincerely,

 

Stephen Smith QC