Neutral Citation no. [2001] NIQB 6
Ref:     
COGC3347

 
Judgment: approved by the Court for handing down
Delivered:
16.02.2001
(subject to editorial corrections)

 

 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 
QUEEN’S BENCH DIVISION (CROWN SIDE)
 
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IN THE MATTER OF AN APPLICATION BY JOHN E HARKIN,
ALICE HARKIN AND CHARLES HARKIN FOR JUDICIAL REVIEW
 
and
 
IN THE MATTER OF THE DECISION BY THE DEPARTMENT OF AGRICULTURE
FOR NORTHERN IRELAND DATED 9 FEBRUARY 2000
 
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COGHLIN J
 
            The applicants in these proceedings are engaged in sheep farming and they initially sought judicial review of a decision of the Department of Agriculture (“the Department”), dated 2 July 1998, refusing to make any payments to the applicants by way of Sheep Annual Premium (“SAP”).  Those proceedings were conducted before me and, on 16 September 1999, I gave a written judgment in the course of which I set out in some detail the factual background to the proceedings together with my determination of the various issues which had been raised.  I do not propose to further rehearse the matters contained in that judgment to which reference may be made as required.  
As a consequence of my judgment the parties reached an agreement, the terms of which were set out in a letter from the Crown Solicitor’s Office to the applicants’ solicitors, dated 15 October 1999, in accordance with which the determination of applicants’ claims for SAP and HLCA in respect of the year 1997/98 was rescinded and the claims were to be reconsidered by a Departmental official who had no previous involvement in the making of the original decisions or the subsequent proceedings.  The applicants were given the right to make such written representations as they saw fit by 15 November 1999.  
The Departmental official appointed in the course of implementing this agreement was Mr James F Ditchfield and each of the applicants submitted written representations to Mr Ditchfield on 15 November 1999.  Mr Ditchfield reported on 9 February 2000 setting out the details of his review of the decision taken by the Department and the conclusions that he had reached.  Mr Ditchfield decided that the claims of the applicants should have been separately assessed and he set out the number of eligible ewes which he considered should be attributed to each applicant.  Mr Ditchfield then applied Article 10 of EC Regulation 3887/92 (as amended) and, since the number of sheep attributed to each applicant found on the relevant holdings at the date of the Department’s inspection on 6 April 1998 was more than 20% less than the number claimed by each applicant in the relevant documentation, Mr Ditchfield disallowed all the claims.  The applicants then sought judicial review of Mr Ditchfield’s decision.
The applicants were represented by Mr James McNulty QC and Mr McDonnell while Mr McCloskey QC and Mr Maguire appeared for the respondent.  I am grateful to both sets of Counsel for their helpful submissions and skeleton arguments.  
Mr McNulty QC attacked Mr Ditchfield’s decision upon a number of grounds:
 
(i)         Mr Ditchfield’s failure to personally interview the Department inspectors who took part in the inspection of the applicants’ premises on 6 April 1998 coupled with Mr Ditchfield’s failure to visit the relevant locations.  
 
Mr McNulty QC submitted that these omissions on the part of Mr Ditchfield significantly restricted his ability to make a properly informed judgment as to the credibility of the inspectors. 
            I reject this submission.  Paragraphs 3 and 4 of the written document dated 15 October 1999, agreed by each of the applicants with the advice of their Counsel, clearly set out the terms of Mr Ditchfield’s reconsideration of the applicants’ claims and did not include any reference to personal interviews of the inspectors, or any other parties, or any personal visit to the relevant locations.  Mr Ditchfield clearly did consider credibility and at paragraph 8 of his affidavit of 11 May 2000, Mr Ditchfield recorded that he did not accept literally the averments in the inspectors’ affidavits that none of the sheep inspected bore ear tags at the inspection date.  He did not consider that the inspectors were reliable in relation to their assertion that none of the sheep bore ear tags.
(ii)        Mr Ditchfield’s view that the inspectors were “biased” in favour of the applicants
 
The reference to “bias” did not appear in Mr Ditchfield’s original report but was dealt with in his affidavit at paragraph 11 in the following terms:
“The accuracy of the count conducted on the inspection date was the most difficult aspect of the review carried out by me.  I had to consider, and determine, whether the inspectors had done their jobs properly.  In doing so, I drew on my experience of twenty‑eight years working in the Department, which has been that, as a general rule, members of the Inspectorate staff favour the farmer and attempt to achieve the best possible outcome for the farmer.  In this particular case, in reviewing the evidence at my disposal this ‘bias’ was, in my view, evidenced by the inspectors’ willingness to recommend payment in full to Alice Harkin and Charles Harkin in circumstances where, on my assessment, none of the applicants was entitled to any SAP payment.”
 
Mr McNulty QC submitted that Mr Ditchfield had erred by allowing the experience of the inspectors to be elevated to a “decisive” factor, especially when combined with their alleged “bias” in favour of the applicants.  He referred, in particular, to the remarks contained in the final sentence of paragraph 19 of Mr Ditchfield’s affidavit:
“Further, I found it inconceivable that on the inspection date several experienced inspectors, probably operating with a certain bias in favour of the applicants, had been so careless and incompetent that they failed to locate a total of 869 sheep (the shortfall between the total number found by the inspectors and the total of the applicants’ three SAP claims).”
 
However, Mr McNulty QC expressly did not seek to argue that the experience of the inspectors was not a relevant factor and I consider that he was right not to do so.  In my opinion, the experience of the inspectors was a factor which Mr Ditchfield was entitled to take into account.  It is a fact that the apportionment recommendations conveyed to John Harkin on 1 May 1998 would have permitted SAP to have been paid to Alice Harkin and Charles Harkin whereas Mr Ditchfield’s reconsideration resulted in rejection of each of the applicants’ claims.  Whether such facts could properly give rise to an inference of bias on the part of the inspectors in favour of the applicants is a more difficult issue particularly in the context of the earlier recommendation to John Harkin by Mr Rodgers of quite different figures and the subsequent decision by Mr Gallagher to treat all the sheep as a single flock with the result that no premium was payable to any of the applicants.  Ultimately, the weight of any particular factor is very much a matter for the decision-maker – see Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 – and, in the circumstances of this case, I do not consider that the applicants have established that Mr Ditchfield gave such excessive weight to this factor as to render his decision Wednesbury unreasonable.
(iii)       The relevance of the ear tag factor
            Without exception, each of the Department’s inspectors involved in the inspection on 6 April 1998 denied that any of the 1,681 sheep counted had ear tags.  It is common case that, prior to the date of the inspection, the applicant John Harkin had imported 1,036 sheep from Scotland and that veterinary inspections carried out by the Department on the applicant’s holdings between 13 September 1997 and 21 January 1998 confirmed that number of sheep to be present bearing ear tags.  Further veterinary inspections carried out between 5 June and 28 August 1998 again confirmed the presence on the applicant’s holdings of the 1,036 sheep bearing the same identification ear tags.  Ultimately, much of the debate during the course of the proceedings focused upon the significance of these facts.
            On behalf of the applicants, Mr McNulty QC submitted that the records of the Department’s veterinary inspectors established as a “high probability” that the ear tagged sheep imported by the applicant, John Harkin, were present upon the applicant’s holdings not only at the time of the veterinary inspections but also at the time of the inspection on 6 April 1998.  Mr McNulty QC further submitted that Mr Ditchfield had failed to take this relevant factor into account.  
At paragraph 6.15 of his original report Mr Ditchfield set out “some other issues” which, in the interests of completeness he addressed before his final determination, one of these “other issues” being that of ear tags.  Mr Ditchfield then went on to state that he did not consider that the question whether the applicant’s sheep bore ear tags was “particularly significant” and he referred to the distress that inspecting individual sheep by means of identification of ear tags would have been likely to cause to such animals.  He stated that, in his opinion:
“Whether or not the sheep had ear tags at the time of the inspection has no material bearing on the final determination.”
 
Mr Ditchfield then referred to the representations made on behalf of the applicant John Harkin by Denis Haughey MLA and concluded that:
“Whether or not sheep were imported from Scotland and had been inspected for veterinary purposes etc is not relevant.  The determination of the claims can only be based on the number of eligible sheep found at the specified locations on the day of the inspection.”
 
            Mr McNulty QC submitted that it would be to fly in the face of reality to infer that the applicant John Harkin had removed approximately 1,000 sheep imported from Scotland from the lands upon which regulations required them to be kept during the quarantine period prior to the inspection on 6 April 1998 and, subsequently, returned them to the said lands prior to the veterinary inspections in June and August.
            On behalf of the Department Mr McCloskey QC submitted that the respondent was entitled to rely not only upon the original report and determination by Mr Ditchfield but also upon the more detailed explanation of his reasoning process which appeared in his affidavit.  He reminded the court of the words of Lord Wilberforce in Secretary of State for Education and Science v Metropolitan Borough of Thameside [1976] 3 WLR 641 when he said at page 666:
“I must now enquire what were the facts on which the Secretary of State expressed himself as satisfied that the council were acting or proposed to act unreasonably.  The Secretary of State did not give oral evidence in the courts, and the facts on which he acted must be taken from the Department’s letters at the relevant time – and from affidavits sworn by its officers.  These documents are to be read fairly and in bonam partem, if reasons are given in general terms, the court should not exclude reasons which fairly fall within them: allowance must be fairly made for difficulties in expression.  The Secretary of State must be given credit for having the background to this actual situation in mind, and must be taken to be properly and professionally informed as to educational practices used in the area and as to resources available to the local education authority.  His opinion, based as it must be, on that of a strong and expert Department, is not to be lightly over written.”
 
            Mr McCloskey QC drew the attention of the court to the detailed and extensive documentation set out at paragraph 3.1 of Mr Ditchfield’s report and to the assertion at paragraph 6.4 of the same document that, in the course of discharging his function, Mr Ditchfield had considered all of these materials.  He noted that, at paragraph 6.12 of the report, Mr Ditchfield had drawn attention to paragraph 27 of the General Rules applicable to SAP which required claimants to notify the Department of the movement of sheep before they were moved to new locations.  Mr McCloskey QC emphasised that paragraph 6.15 of Mr Ditchfield’s report should be read reasonably and fairly and not with the same degree of close analysis that might be applied to a contract, statute or other formal legal document.  He submitted that, if such an approach was adopted, paragraph 6.15 of the original report could be properly reconciled with paragraph 17 of Mr Ditchfield’s affidavit.
            It seems to me that there is clearly substance to Mr McCloskey QC’s submissions which are consistent with the ability of a decision-maker to supplement or explain by affidavit the reason or reasoning upon which a decision was originally based – see, for example, the decisions of Simon Brown J, as he then was, in R v Legal Aid Area No 8 (Northern) Committee ex parte Angell [1991] 3 Admin Law Reports 189 and Re C and P [1992] COD 29 and, in this jurisdiction, Kerr J in Re Anglin [unreported, 29 August 1996].  While affidavits may supplement or explain they may not contradict or provide an ex post facto rationalisation of the decision and I bear in mind the words of Hutchison LJ in R v Westminster City Council ex parte Ermakov [1996] 2 All ER 302 when he observed, at page 315:
“The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ’s observations in ex parte Graham, be very cautious about doing so.  I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity.  These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction.  Certainly there seems to me to be no warrant for receiving and relying on as validating the decision evidence – as in this case – which indicates that the real reasons were wholly different from the stated reasons.”
 
Subsequently in his judgment Hutchison LJ went on to express the opinion that, although judicial review is a discretionary remedy, in cases where the reasons stated in the decision letter have been shown to be manifestly flawed, it should only be in very exceptional cases that relief should be refused on the strength of reasons adduced in evidence after the commencement of proceedings.
            I have given careful thought to this issue and, in doing so, I have taken into account the following:
(i)        Mr Ditchfield was not simply an official issuing a decision letter or notice in the course of his usual duties.  He was specifically selected by the Department as being an official of sufficient rank and experience to carry out the onerous duty of reconsidering the voluminous and detailed documentation and arriving at a fresh determination of the applicants’ claims.  His experience and qualifications are set out in detail at paragraph 4.1 of his original report. 
(ii)        Furthermore, paragraph 23 of his affidavit confirms that throughout the decision-making process Mr Ditchfield sought and received frequent and detailed legal advice from the Department’s legal advisers.  
(iii)       Finally, Mr Ditchfield’s report and determination of 9 February 2000 differs significantly from the average decision notice or letter.  It is, and was intended to be, a detailed reasoned review and determination of the claims made by the applicants in the original judicial review proceedings.  
            Having done so, I am unable to reconcile paragraph 6.15 of Mr Ditchfield’s original report with paragraphs 16 and 17 of the affidavit which he has sworn in the course of these proceedings.  In particular, the passage contained in paragraph 6.15 which reads:
“Whether or not sheep were imported from Scotland and had been inspected for veterinary purposes etc is not relevant.”
 
seems to me to be contradicted by the recognition at paragraph 17 of the affidavit that this information “provided some evidence in support of John Harkin’s assertion that the number of sheep claimed by him in his SAP application – 990 – were all present on the inspection date.”  In my view the information relating to the sheep imported from Scotland by John Harkin was a factor that should have been taken into account when reconsidering the claims although the degree of weight to be attributed to it was a matter for the reasonable exercise of Mr Ditchfield’s discretion.  However, since Mr Ditchfield appears to have rejected this factor as irrelevant, I have come to the conclusion that his reconsideration was Wednesbury unreasonable and, accordingly, it will be quashed.

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 
QUEEN’S BENCH DIVISION (CROWN SIDE)
 
------------ 
 
IN THE MATTER OF AN APPLICATION BY JOHN E HARKIN,
ALICE HARKIN AND CHARLES HARKIN FOR JUDICIAL REVIEW
 
and
 
IN THE MATTER OF THE DECISION BY THE DEPARTMENT OF AGRICULTURE
FOR NORTHERN IRELAND DATED 9 FEBRUARY 2000
 
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JUDGMENT

 
OF

 
COGHLIN J

 
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