High Court of Ireland Decisions

1. In these proceedings the Applicant seeks an order for Judicial Review having been granted leave by Mr. Justice Kelly on the 16th July 1999 to seek the relief of a Declaration and injunctions. The particular relief sought is a Declaration that the continuing detention of the Applicant’s horses by the Respondent its servants and agents is unlawful, an injunction directing the Respondent to release his horses, an injunction restraining the Respondent from the disposing of the Applicant’s horses and an injunction restraining the Respondent from seizing the Applicant’s horses until such time as it is in a position to comply with all relevant statutory regulations and enactments and in particular the provisions of section 3 of the Control of Horses Act 1996. The grounds upon which the Applicant seeks the various items of relief are:-

2. The Applicant is a member of the travelling community and married to Kathleen Mongan. For many generations the Mongan family have reared and traded in horses. The Applicant was brought up with horses and claims that they have always been part of his life. He states that he started buying horses approximately 12 years ago. He says he always wanted to bring-up his children with horses because he loves horses and because it keeps them out of trouble and he wants to continue the traveller traditions and culture which has always been to have a close relationship with horses. He states that he has the highest number of horses now that he has ever had. He complains that 13 of his horses were seized by the Respondent including a mare which had recently foaled. He states he has 3 further horses at home. The Applicant states that he asked the Respondent to take a foal of the mare to Kilkenny, otherwise the foal may have died. The Applicant has frankly admitted that his horses have been seized by the Respondent on numerous occasions since the coming into full operation of the Control of Horses Act 1996 and bye-laws made thereunder. He states that various horses had been seized on 5 different occasions since April 1998. He states that he had to borrow over £1,000.00 for fines in order to retrieve his horses.

3. The Applicant states that he is aware that under the provisions of the Control of Horses Act, 1996 and bye-laws enacted on foot of this Act he must have a suitable accommodation for his horses. He says that since the Act came into operation he was aware that bye-laws would shortly be enacted which would compel him to provide certain accommodation and care for his horses. He states that he cares for his horses as best he can, but he had not been able to rent land or stables in which to keep his horses. He states that he has a large family and lives on the money that he gets from the Department of Social Welfare and while he could borrow money he has been unable to rent land for his horses.

4. Mr. Mongan states that when the Act came into operation he instructed his solicitors to contact the Respondent and ask them what steps he would have to take in order to obtain licences for his horses. He states that his basic problem is that he has to obtain a suitable quantity of land on which to keep his horses and that this he has been unable to do. He has sought to rent land from the Respondent without success. He states that he has placed advertisements in the local newspaper but again without success. He says that he has approached the Department of Agriculture and food asking it to consider setting up a horse project for travellers in the Clondalkin area, but the Department has refused to do this. He states that he has been making these strenuous efforts because he has always been aware that if he did not resolve matters, the Respondent could seize and eventually dispose of his horses. He states that he is presently living in a field on Lynch’s Lane in Clondalkin. He states that he has been negotiating with South Dublin County Council for many years to provide him and his family with suitable accommodation without success. Neither has he had success with the Respondent in relation to his horses. He complains that the Respondent tried to move him and his family on to a halting site in Lynch’s Lane in Clondakin and that he had to issue High Court proceedings to prevent them from doing so because the facilities on this site were not suitable for human habitation. Since that time, which was in 1995, he and his family having been living in a field on Lynch’s Lane and he has received no suitable offer of accommodation for his family and himself from the Respondent. He understands that he cannot insist that the Respondent provide him with accommodation for his horses, but he hoped that it would accept that the traveller community has a very strong tradition and culture involving horses and that this could be taken into consideration when considering their particular circumstances.

5. The Applicant complains that at 5.30 a.m. on Wednesday the 14th of July 1999 he was awoken by the sound of dogs barking. He saw two Gardaí and saw that his horses were being seized. He states that nobody approached him and he was not told where his horses were being taken. Following previous seizures the horses had been taken to a pound in Saggart in County Dublin. On this occasion he drove to Saggart but found the horses were not there. He then went to the Respondent’s offices in Tallaght and subsequently learned that his 13 horses had been taken to a pound in Kilkenny. He states that he negotiated with Mr. Larry Kelly of the Respondent that day and he was told that if he paid a fine of £2,521.20 on the 14th of July 1999 that the Respondent would return the horses to him and would not take any further action, provided that he moved the horses from the South Dublin County Council area prior to the 8th of August 1999. He states that following subsequent negotiations on the 15th of July 1999 he was told that the Respondent would not take any further action in relation to disposal of his horses prior to close of business on Friday 16th July 1999. He received an undertaking in writing in these terms. He states that his understanding is that unless he paid a total of £2,521.20 by the close of business on Friday the 16th of July that his horses would be disposed of. He states that in the past the Respondent has disposed of horses by selling them to individuals in England. He says he is not sure what happens to them then but he presumes that they are destroyed. The Applicant complains that when his horses were seized that he was not served with any notice of seizure or detention. He complains that the Respondent is not interested in the welfare of his horses. He states that all it wants from him is that he removes his horses out of its area. He says that he himself has been evicted on may occasions by the Respondent and believes now that it is adopting the same attitude towards his horses, that it had previously adopted towards him, namely that it does not care where he goes or what he does as long as he is out of its administrative area.

6. On behalf of the Respondent an affidavit has been sworn by Laurence Kelly who is an Administrative Officer. He agrees that Mr. Mongan has previously had his horses seized by the Respondent. He states that since April 1998, and prior to the seizure of the horses the subject matter these proceedings, 25 of the Applicants horses were seized and detained by the Respondent. It is stated that on each occasion Mr. Mongan approached the Respondent he paid the requisite fine to recover the horses and gave a sworn undertaking that the seized horses, when recovered by him, would be accommodated on lands procured by him. Despite these sworn undertakings, some of which are in fact statutory undertakings, given by Mr. Mongan, some of the horses reappeared subsequently on lands within the Respondent’s administrative area and had to be seized because Mr. Mongan was again in breach of the bye-laws. On this basis it is deposed by Laurence Kelly that it is clear that these undertakings were given by the Applicant simply to get his horses released.

7. Mr. Kelly agrees that there has been a long history in relation to the question of accommodation of the Mongan family. In 1995 the Applicant and his wife instituted proceedings in the High Court seeking a Judicial Review in respect of a notice requiring them to move into a halting site at Lynch’s Lane in Clondalkin. They successful claimed in these proceedings that the halting site was not suitable. At this time the Mongan family was offered alternative suitable accommodation at Kishogue permanent site which was a half mile from where the family was residing at the time. Mr. Kelly states that this offer of suitable alternative accommodation was rejected out of hand by Mr and Mrs. Mongan and they refused to move from the unauthorised site which they occupied. Notwithstanding this, the Applicant and his wife have refused to move and remain residing at Lynch’s Lane to the present time.

8. Mr. Kelly refers to the report of the Task Force Report on the Travelling Community of July 1995 in which under the general heading of Traveller Economy it is stated:-

9. Mr Kelly refers to the events of the 14th of July 1999 where a round up of horses was carried out by the Respondent in relation to horses which were suspected of being unlicensed. It is stated that 13 horses were seized and transported to the pound at Urlingford in County Kilkenny. The reason the Applicant was not approached was stated to be because the identity of the horse owner could not be determined until each horse was scanned and this scanning took place at the pound in Urlingford. Mr. Mongan was identified as the owner. A meeting took place on the afternoon of the 14th of July 1999 where Mr. Kelly was in attendance with Aisling Glennon, Clerical Officer of the Respondent and the Applicant. Also in attendance were Ms. Sandra Mullen and Ms. Grainne O’Toole both of the Clondalkin Travellers Development Group. Mr. Kelly states that at that meeting he informed the Applicant of the fee to be paid before the horses could be released. He states that he indicated to the Applicant that because of the number of horses required to be removed from the pound, the Applicant could take two days over which he could arrange for the removal of the horses and that no fee would be charged for those two days. Mr. Mongan indicated that he would remove the horses on the following two days, namely Thursday and Friday the 15th and 16th of July 1999. Mr. Kelly states that he informed the Applicant that if he got suitable land or facilities within the South Dublin County Council administrative area that he could apply for licences for the horses. It is stated that the Applicant indicated that he would be placing the horses on lands at Balgaddy, Clondalkin and it was clearly indicate to him that if the horses reappeared in the South Dublin administrative area without proper facilities and accommodation there was a risk the horses could be impounded again. It is stated that following this discussion, Mr. Mongan said that he would pay the fees as outlined but requested a period of three weeks in which to make alternative arrangements for the horses. Mr. Kelly states that he indicated to the Applicant that he would be permitted to maintain the horses until the 8th of August 1999, so that he could make alternative arrangements for his horses. Mr. Kelly says that a written undertaking to this effect was given to him which was witnessed by Ms.Glennon, Ms. Mullen and Ms. O’Toole.

10. In addition to the undertaking given by Mr. Kelly to the Applicant, Mr. Mongan, the Applicant also signed an undertaking to the effect that he undertook to make arrangements to move his horses out of the South Dublin County Council area by the 8th of August 1999. The Council undertook not to remove the Applicant’s horses from his land on or on before that date. Mr. Kelly denies at any stage whatsoever did he and or any other official at that meeting tell the Applicant that his horses would be sold or destroyed. He states that the Applicant is well aware of the procedures involved in the impounding and disposal of horses. Before an impounded horse is considered for disposal or destruction, a notice to this effect is served on the owner, if know. This Notice is to the effect that the Council intends to sell or dispose of the horse after a certain period unless claimed by the owner. It is stated that no such notice was either served or contemplated in respect of the Applicant’s 13 horses seized on the 14th of July 1999. Mr. Kelly continues that in particular, as to his understanding, agreement had been reached with regard to the recovery by the Applicant of his horses, the question of sale or destruction did not arise in this instance. Mr. Kelly finally states that from the behaviour of the Applicant over the past year in relation to the failure to properly accommodate his horses and his seeking an injunction in respect of the 13 horses seized on the 14th July 1999, despite the fact that agreements had been entered into in relation to the retrieval by the Applicant of his horses, that the Applicant has no intention whatsoever of abiding by the Bye-Laws in force at the moment nor has he any intention of providing suitable accommodation and facilities for his horses.

11. Insofar as the Applicant has had the horses in question returned to him, the only matter outstanding in these proceedings is the determination of the lawfulness of the acts of the Council, the issue of damages and costs. It is complained that amongst the horses seized were foals and pursuant to section 19 (1) (i) foals are exempt from the licensing requirement. It is submitted accordingly that the seizure and detention of the foals was without any lawful authority. It is submitted further that pursuant to section 37 of the Control of Horses Act of 1996, an authorised person is authorised to seize and detain horses. It is submitted by reference to section 3 that these powers may be exercised within the functional area of the appointing Local Authority. It is pointed out that section 3 also allows for an ‘authorised person’ to act in the area of another Local Authority where on in inter-local authority agreement exists.

12. It is the Applicant’s contention that the authorised persons who seized and detained his horses, took them out of the function area and to a pound in Kilkenny. It is submitted that in this case they purported to exercise their functions outside the functional area, where no inter-local authority agreement exists. Based upon these facts it is submitted that the actions of those parties in moving and detaining the horses to Kilkenny was without lawful authority. It is further submitted that the continued detention of the horses at Kilkenny by an ‘authorised person’ was without any lawful authority. Insofar as the Respondent relies on section 37 (3) which states that a horse seized may be detained in the pound anywhere, it is submitted that it is implicit that section 37 (3) is referring to the exercise of the powers of detention by an ‘authorised person’ and accordingly it is delimited by reference to section 3. It is further submitted in respect of horses detained under section 37 that the Respondent had power under section 39 (1) (d) to deal with the horses pursuant to its bye-laws. It is submitted that the Respondent choose to ignore its own bye-laws. Reference is made to bye-law 6 which contains a mandatory rule in relation to the detention of horses. It is submitted that this bye-law at paragraph (a) requires service of a Form 1 on the owner, where known, as soon as possible. It is stated that the form on the face gives a five day notice of intention to dispose of the horse in default of compliance with the Notice. Bye-Law 6(g) deals with the actual disposal. It is submitted that the Respondent threatened to take steps to dispose of the horses, without serving this Form 1 and within a period less that the mandatory prescribed notice-period of five days. Insofar as the Respondent seeks to rely on section 40 of the Act in respect of any particular horse, it is submitted that it has not complied with the provisions of this section. It is further complained on behalf of the Applicant that the Respondent sought fees and expenses from the Applicant in a manner not authorised by the bye-laws in particular bye-law 6(d). It was further submitted that insofar as the Respondent may have a general power, independent of the power vested in authorised persons, to deal with the detention and disposal of horses detained under section 37, that power is to be found in section 39 subsection 4. It is submitted that section 39 (4) does not authorise the detention of horses outside its function area. It is submitted that the entire tenor of the Act is that functions are discharged within the functional area, save where specific inter-local authority agreements exist. It is further submitted on behalf of the Applicant that the exercise of powers under section 39 (4) require in the first instance a lawful seizure and lawful detention and in the second instance compliance by the Respondent with its own bye-laws. The Applicant contends that the actions of the Respondent were tortious in that they involved a trespass to his chattels and detinue. It is submitted on behalf of the Applicant by Mr Ó Dúlacháin of Counsel that the Act in question must be interpreted in a strict fashion and in a manner least restrictive to the individual rights of the Applicant.

13. With reference to the alleged tortious action of the Respondent it is submitted by Mr. Ó Dúlacháin by reference to the decision of the High Court in the case of Patrick J. Farrell, -v- The Minister for Agriculture and Food, (unreported) High Court 11th October 1995 in a judgment delivered Miss Justice Carroll where at page 19 of her judgment the learned High Court judge in reference to the tort of trespass quoted with approval from the text on torts second edition by McMahon and Binchy, that tresspass must be forcible and direct, not consequential. The learned authors point out that where precisely the line is to be drawn between direct and indirect interference is not easy to say.

14. Carroll J states that the tort consists of wrongfully and directly interfering with the possession of chattels. It is submitted on behalf of the Applicant that there was no statutory immunity from tort given by the Act in question in favour of the Respondent. With regard to the undertakings alleged to have been given by the Applicant it is submitted that the Applicant was at all times someone who was illiterate. It is queried whether the Local Authority had power to levy the charge in question upon the Applicant. While the Applicant’s horses were in fact released without any charges in fact having been paid, what is in issue in these proceedings is an interpretation of the Act in assessment of the actions of the Respondent in July of 1999.

15. On behalf of the Respondent it is submitted that the Applicant knew that the horses were not going to be disposed of by reason of the agreement entered into by him with the Respondent. Reliance is placed by the Respondent on the behaviour of the Applicant. With regard to the points made on behalf of the Applicant it is submitted that only one foal was in question in these proceedings. With regard to the power to hold animals in a place other than within the function area of the Respondent it is submitted, having regards to the provisions of section 37 (3), that these can be held anywhere within the State. In this regard it is submitted that there is no limitation to the power being exercise within the functional area of the Respondent. It is submitted that the various sections of Act must be read together such as to show that in the first place, the Respondent authority had:-

16. It is submitted that with regard to the agreement necessary to be reached with other Local Authorities that this relates to the seizure function set forth in the Act. It is submitted that the impounding can be done anywhere. It is submitted in regard to the service of Notice, that even if there was a technical breach in this regard it was overcome by the negotiations which took place between the Applicant and the Respondent. It is submitted by counsel that the Respondent treated the Applicant very fairly and that this is borne out by the affidavit of Mr. Kelly. While the Applicant relies upon a threat to dispose of his animals the Respondent relies upon the fact that this is controverted by Mr. Kelly. With regard to the general principals of law relied upon by the Applicant it is submitted that even if the Act in question are construed strictly that the appearance in the section of the word “ anywhere” when applied strictly cannot be construed as meaning anywhere within the functional area of the Respondent. It is submitted that the Control of Horses Act 1996 balanced the rights of a Local Authority on the one hand and the owner of horses on the other hand and that these rights are in no way absolute. The Respondent places reliance upon the fact that the Applicant concedes that that he has unlicenced horses. It is submitted on behalf of the Respondent that no arbitrary power was exercised by the Local Authority and that no tortious action was perpetrated by the Council. Furthermore it was submitted that there was no evidence of any damages having been sustained by the Applicant and no case of damage has in fact been made out by him or on his behalf. With regard further to the relief sought it is submitted these are items of discretionary relief. Reliance is placed upon the fact that the Applicant went to the Respondent at its offices and this is not a case where the Council went to the Applicant in the first place. It is further submitted that the fees had to paid before the horses were released. Again it is submitted that the functions of an authorised officer under section 3 are not limited to seizure. In the circumstances it is submitted that the Applicant is not entitled to the relief which he seeks in these proceedings.

17. With regard to the fees arising in this case, it is clear from a reading of section 39 (2) of the Act that fees to be paid by the owner or keeper of such horses including fees in respect of their keep, any veterinary services any transportation may be provided for in bye-laws. “ In relation to horses detained within its functional area under section 37”.

18. It is clear from the facts of this case the horses in question were not detained within the functional area of the Respondent Council. Accordingly the bye-laws in question made by the Respondent simply relate to such horses as are in fact detained within its functional area. On the other hand bye-laws may have been made by Kilkenny County Council relating to the detention of horses within its the functional area in circumstances where they were detained outside of the Respondent’s functional area. Accordingly I am of the opinion that certain of the charges levied by the Respondent are in excess of those which may be imposed by it on the Applicant in circumstances where it has not be shown that these charges are in accordance with bye-laws made by Kilkenny County Council as the horses were held within its functional area.

19. In conclusion this Court must refuse the Applicant the essential relief which he seeks. While the Applicant has referred to the traditions of the Traveller Community in Ireland and in this regard has indicated his wish to bring his children up with horses because of his love for horses, because it keeps them out of trouble and wishes to continue the Traveller traditions and culture, which he states has always been to have a close relationship with horses, it is important for the Applicant and any other member of the Travelling Community to realise that changes have been affected in the law by the Control of Horses Act, 1996 and notwithstanding his wishes to maintain traditions and culture that these traditions and culture can only be maintained within the terms of the law. This is as set out of the Control of Horses Act, 1996 and bye-laws made under the provisions of that Act. Nevertheless, it is hoped that the Respondent may be in a position to assist the Applicant and other members of the Travelling Community to maintain their traditions and culture within reasonable limits.