Milk quotas — Judicial review — Challenge by producer to decision of local panel of Dairy Produce Quota Tribunal rejecting a special case claim for revision of the base year for allocation of quota — Producer relied on bad weather adversely affecting milk production in base year 1983 — Requirement of regulations that his production must be shown to have been reduced by the weather conditions by not less than 15% — Both Ministry of Agriculture in the first instance and local panel of the tribunal rejected the claim on the ground that a 15% reduction attributable to the cause alleged had not been proved — It appeared that the loss of production might have been due partly to health problems in the milking herd — Nolan J, in giving leave to apply for judicial review, had commented on the applicant’s delay in pursuing his case, but considered that the question of delay should be considered at the hearing of the substantive application — Before the Divisional Court the respondents did not wish to rely on the question of the applicant’s delay and the court did not give any ruling on it, but issued a general warning that the court would not be debarred by a party’s attitude from considering such a question — The swift prosecution of judicial review proceedings and their determination were essential to the efficient and proper exercise of the judicial review jurisdiction — The court then examined and rejected the grounds put forward by the applicant for challenging the panel’s decision — A criticism of the standard of proof required by the panel turned out to be based on its use of the word ‘conclusively’ by mistake for ‘exclusively’ — A suggestion that the panel had looked at milk yield per cow instead of milk production of the herd was due to a loose use of ‘production’ and ‘yield’, but there was no error — The panel had not erroneously construed the 15% reduction as limited to a comparison with the previous year — A submission that the proper comparison should have been with the hypothetical production in 1983 if the weather had not been bad was incorrect: the regulations contemplated the substitution of another actual year — The applicant had not responded to a request from the panel for information which would have helped to distinguish the effects of the weather from those related to animal health (infertility, mastitis and leptospirosis) — In the end it was clear that the panel was entitled to say that the applicant had not proved his case for revision of the base year — The court added that, even if there had been adequate grounds for challenging the panel’s decision, it was difficult to see what remedy the court could have given the applicant in 1987 — The local panels of the Dairy Produce Quota Tribunal established in 1984 were abolished by the Dairy Produce Quotas Regulations 1986 — If the court formally quashed the panel’s decision the minister’s decision would stand — Application dismissed — Per May LJ: ‘In any event, I am far from satisfied, having regard to the phraseology of the EEC regulation, that the weather and its effect, complained of in this case, constituted ‘a serious natural disaster’ which is the requirement of the EEC regulation’.*
*Editor’s
Note: May LJ is referring here to Art 3(3) of Council Regulation (EEC) 857/84,
which refers, among exceptional events relevant to the substitution of a
different base year, to ‘a serious natural disaster affecting the producer’s
farm to a substantial extent’.
The following
cases are referred to in this report.
O’Reilly v Mackman [1983] 2 AC 237; [1982] 3 WLR 1096; [1982] 3 All
ER 1124, HL
R v Stratford-on-Avon District Council, ex parte Jackson
[1985] 1 WLR 1319; [1985] 3 All ER 769; (1985) 84 LGR 287, CA
This was an
application by Mr H Wynn-Jones, a dairy farmer at Little Gaddesden,
Berkhampsted, Herts, for judicial review challenging the decision of the
Lincoln local panel of the Dairy Produce Quota Tribunal. The applicant had
sought a reversal of a decision of the Minister of Agriculture rejecting his
claim for a revision of his base year for quota purposes, but the panel also
rejected his case.
R Gordon
(instructed by Dawson & Co) appeared on behalf of the applicant; G Pulman
(instructed by the Solicitor, Ministry of Agriculture, Fisheries and Food)
represented the respondents.
Giving
judgment, MAY LJ said: In this matter Mr Gordon moves for judicial review of a
decision of the Lincoln local panel of the Dairy Produce Quota Tribunal, dated
October 11 1984. That panel had before it an application by the applicant
before us to review a decision of the Minister of Agriculture, Fisheries and
Food of August 30 1984, rejecting the applicant’s original application for what
is called ‘a special case claim’, comprising a base year revision claim under the
provisions of the Dairy Produce Quotas Regulations 1984.
Those
regulations and others set up a scheme, the purpose of which was to keep down
the amount of milk produced by dairy farmers in this country, as I understand
it as an aspect of the common agricultural policy of the EEC. The scheme
involved that each wholesale producer of milk, among others, should be
allocated an annual quota. If the producer should thereafter sell more milk
than his quota in any year he would have to pay a levy on the excess at so much
per litre. In general, the quotas were based upon a producer’s production in
the year 1983. However, if a particular dairy farmer had a bad year in 1983,
due either to really bad weather or to disease, so that he would otherwise be
given a low quota and thus be liable to pay the levy at a lower level of
production than his usual, the regulations enabled him to make a base year
revision claim which was indeed just that. It was a claim that his base year
should be some other year than 1983.
I should add
that if the farmer was relying on really bad weather as a cause to justify such
a claim, the regulations required that he should show that his production had
been reduced in the year 1983 by not less than 15%.
Such a claim
was made to the Minister of Agriculture, Fisheries and Food. He was required to
consider it and either accept or reject it. If he rejected it, then the
applicant dairy farmer was entitled to have the minister’s rejection reviewed
by what was called a rejection review body. This, at the relevant time, was the
local panel of the Dairy Produce Quota Tribunal. If this body or the panel
agreed with the minister’s conclusion that the base year revision plan should
be rejected, then it was under an obligation to confirm the rejection and
to state its reasons for doing so in writing to the applicant. That is what
happened in the instant case.
Having briefly
explained the scheme, it is unnecessary to go into the detail of the relevant
regulations. For reference they were EEC Council Regulation 857/84, the Dairy
Produce Quotas Regulations 1984 (SI 1984 No 1047) and the Dairy Produce Quota
(Definition of Base Year Revision Claim) Regulations 1984 (SI 1984 No 1048).
The applicant
was at all material times, and I believe still is, a dairy farmer at Little
Gaddesden, Berkhampsted, Herts. He claimed that his milk production in 1983 on
that farm had been substantially reduced by, inter alia, weather and
flooding, and that it was therefore unfair to base his quota on his production
in that year. By an application under the regulations dated August 20 1984 he
asked to have his quota based not on 1983 production but on his 1981
production.
The
application is on p 23 of Bundle B. I read the relevant part of the claim,
inserted in the applicant’s handwriting, from that page:
Mile Barn
Farm
that is the
applicant’s farm
is situated
at the source of the river Gade and due to the large amount of rain during the
winter and spring of 1983 the springs feeding this river rose as they do when
there has been sufficient rain, flooding about 30 acres of land, which would
have been for grazing and conservation. This caused a disastrous shortage of
grazing and winter fodder, added to which, the wet spring was extremely
unsuitable for milk production. After the first grazing, the grass was
practically ruined for the remainder of the year. The performance of the cows
in the spring of 1984 is an indication, 28% more milk in April to June period
from a few less cows.
He then set
out the substantially increased amount of concentrate used in 1983 compared
with 1984. He concluded by saying:
The weather
conditions had a dramatic effect on 1983 production. Another contributory
factor was the infertility problem suffered in the herd, possibly caused by
leptospirosis. See enclosed letter from vet.
That letter is
dated August 20 1984. The relevant paragraph is the third paragraph:
The
conception rate during this period
that is 1983
was very low
indeed despite particular attention to management and herd health. There was an
unusually high incidence of abortions and early embryonic deaths, and a high
incidence of mastitis at this time. My colleagues and I remain convinced that
leptospirosis infection was responsible for this situation, though it is fair
to say that efforts to demonstrate the cause of infection were only partially
successful.
On August 30
1984 the minister rejected that claim by the applicant for a base year
revision. The reason which the minister gave for so rejecting it was this:
In order for
your claim to be considered further, you would have had to demonstrate the
amount of milk production lost through (a) weather conditions and (b) an
outbreak of disease, quite separately. This is because a claim based on a
serious natural disaster must be based on a milk yield loss of at least 15%.
As was his
entitlement, the applicant sought review of the minister’s rejection by a form
dated September 16 1984. I again read the relevant insertion in the applicant’s
own handwriting:
From the
production figures on the original application it is obvious that my production
is down for two reasons (a) a reduction in the number of cows due to
infertility (b) a reduction in yield per cow from 4,799 litres in 1981 to 3,756
litres in 1983 or 22%. This is without doubt due to weather conditions, see
original application. As the number of cows was down by 11.4% and the overall
production was down by 31%, this would indicate that the loss due to weather
conditions would be in the region of 20%.
He then
referred to the year 1982 and the fact that a pipeline was being laid across
his farm during that year and that, in consequence, the milk production in 1982
was not typical of the farm, which, of course, was the reason why he sought to
go back for his base year to 1981 instead of to the immediately preceding year,
1983.
The review was
heard by the local panel and was rejected on October 11 1984. The reasons which
the panel gave for such rejection appear at p 56 of the bundle. These, it
should be noted, are the combined reasons of the panel. Why I put it in that
way will appear hereafter. They read as follows:
The applicant
did not conclusively prove a 15% reduction in yield due to bad weather. Whilst
the drop in yield, taking account of the fact that the yield in 1982 was
probably depressed by the laying of a pipeline across the farm, may have been
over 15%, it could not be proven that this was solely due to weather, given the
health problems (mastitis and infertility in the herd). Insufficient evidence
was provided to support that the infertility suffered was due to an epizootic.
In the instant
application the applicant alleges that the local panel erred in law in
rejecting the review in his case, for the reasons which I have just quoted. His
application to apply for judicial review of the panel’s decision was filed on
November 7 1986. That alone will show that there has been substantial delay in
this case. That was considered in some detail by Nolan J on February 10 1987.
We have a transcript of his judgment with our papers. It is quite clear that he
gave leave to move but left the application of section 31(6) of the Supreme
Court Act 1981 and of Ord 53, r4(1) of the Rules of the Supreme Court to be
considered at the substantive hearing of the application for judicial review
when all the information would be available.
Nolan J, at
the end of his judgment, said this:
In my
judgment, in this case, as in the case of Ex parte Jackson,* the
assessment of the evidence for the purpose of considering the application of
section 31(6) can best be made at the hearing of the substantive application. I
wish to make it clear that, contrary to the fears expressed by Mr Pulman, I do
not consider that this hearing has concluded the issue of delay. It will still
be open to the respondent to bring it before the court at the time when the
substantive application is heard.
*Editor’s
Note: R v Stratford-on-Avon District Council, Ex p Jackson [1985]
1 WLR 1319.
However, by a
letter of April 10 1987, the respondents’ solicitors wrote to the applicant’s
solicitors in these terms:
Although it
may be semantic, the respondents do not necessarily accept that there is good
reason for extending the period but will not be arguing the point in Court.
There are other reasons for not pursuing the point and it is sufficient for
your purposes that the respondents are not pursuing the point. The cases will
merely now be defended on their merits.
Before us, Mr
Pulman accepted that this court could, if it saw fit, take the delay point in
the exercise of its discretion whether or not to grant the judicial review
sought, but in the light of the letter from the solicitors instructing him, he
made it clear that he was not, on the respondents’ behalf, expressly taking the
point.
In the light
of that letter Mr Gordon was not really expecting to have to argue the delay
point. In the context of this particular case the court felt that there might
be an element of injustice in these proceedings if, in all the circumstances,
the court did take the delay point, in the event that it should prove material.
However, I wish to make it quite clear that in future, just because a
respondent says that he is not going to rely upon the question of delay, that
is no bar to the court considering the point, requiring argument on both sides
on it and deciding it under the relevant statutory provisions and the Rules of
the Supreme Court. As Lord Diplock said in O’Reilly v Mackman
[1983] 2 AC 237, at p 280:
The public
interest in good administration requires that public authorities and third
parties should not be kept in suspense as to the legal validity of a decision
the authority has reached in purported exercise of decision-making powers for
any longer period than is absolutely necessary in fairness to the person
affected by the decision.
The swift
prosecution of judicial review proceedings and their determination is essential
to the efficient and proper exercise of the judicial review jurisdiction.
I turn now to
the grounds in the notice of application upon which the applicant seeks to
challenge the decision of the local panel rejecting a review of the minister’s
rejection of the base year revision plan. By the first ground, which is set out
at para 10, the applicant seeks to rely upon the contention that the civil
standard of proof on a balance of probabilities is the one which should apply
in such applications and that it was wrong for the panel, as appears from its
reasons, to require that an applicant should prove any matter conclusively. The
word ‘conclusively’ was used in the reasons given by the panel. It is accepted
by Mr Pulman that the standard of proof is indeed that of civil proceedings,
that of the balance of probabilities. He submits that it would be wrong to draw
the inference from the use of the word ‘conclusively’ that the panel was
applying other than the civil burden of proof. The contention is indeed
answered in para 5 of Mr Race’s affidavit — Mr Race was the chairman of the
panel — where he deposed as follows:
Despite what
is said in the grounds for relief, we were only applying the civil standard of
proof, on a balance of probabilities. The word ‘conclusively’ used in the
decision was based on my own personal notes, which are now produced and shown
to me as Exhibit ‘PHR 1’. (This word does not appear in the notes of the other
two panel members.) It should not bear
the strict interpretation which the applicant seeks to place on it. I intended
the word
different causes of any reduction.
With respect
to Mr Race, I do not think that he meant conclusively at all. I think that it
was a mistake for ‘exclusively’. If that is a correct interpretation of the
situation, then this is no sufficient ground for challenging the panel’s
decision. On its face, however, I agree entirely with Mr Gordon’s submissions,
that it would seem that the decision was open to criticism in this respect.
So far as the
second ground is concerned, Mr Gordon drew a distinction between references in
the papers to production, namely, milk production of the whole herd, and yield,
namely, the milk yield of any given cow, and in relation to the decision of the
panel pointed out that what is to be shown under the regulations is a 15%
reduction in milk production and not, as was expressed by the local panel, a
reduction in milk yield. Having looked through the material before us more than
once with considerable care, although at first I was minded to accept Mr
Gordon’s submission on this point, on further consideration I do not think that
it is a good one. Throughout the papers it seems that the words ‘production’
and ‘yield’ in relation to the whole herd are used somewhat inaccurately but
interchangeably. If the phrase used had been ‘yield per cow’, it would have
been a different matter entirely. When one looks at the minister’s original
decision, one finds that the minister himself uses the two words as if they
meant the same thing.
I turn to the
third ground. The applicant submits that on the proper construction of the
regulations there was no requirement that the 15% reduction was limited to a
reduction in the 1983 production from the level of production in the previous
year; that is to say, 1982. For my part I agree entirely, but I do not think
that the panel was saying so.
In so far as
the fourth ground is concerned, running on from the third, it is contended that
the proper comparison to make is the extent to which the natural disaster,
which is another way of describing bad weather, has reduced production from
what it would otherwise have been in the base year 1983. On that ground I do
not agree. The base year review, from its description let alone the
regulations, necessarily involves substituting another year for 1983, say 1981
or 1982. One cannot under the regulations substitute what would be a
hypothetical 1983. Consequently, in my judgment, ground 4 is no sufficient
ground, even if made out, upon which to challenge the panel’s decision.
The ground set
out in ground 5 — ground 6 is a cover-all ground — relates to a matter of
evidence and what the evidence proved or ought to have been taken as proving.
That, in my judgment, is not a question of law and forms no good ground for
judicial review in this case.
Even if there
had been substantial grounds upon which to challenge the panel’s decision on
its face, the answer which Mr Pulman put before us started with the terms of
the applicant’s original application of August 20 1984, which I have already
quoted. In that application, the applicant was contending that the reduction in
his 1983 production had been due to bad weather and its consequences and
infertility in the herd. I have already quoted the letter from the veterinary
surgeon which is referred to in the original application. In so far as that is
concerned, I think that it was clearly insufficient, even on a civil burden of
proof, to satisfy a tribunal, considering it as evidence, that there had been
leptospirosis in the herd which had caused the reduction in production. That it
was necessary to separate the relevant considerations leading to the reduction
in production was made clear in the minister’s reasons for his decision, which
I have also already quoted.
There was
then, Mr Pulman submitted, an attempted answer to the minister’s contention in
the review application. In that the applicant put forward two grounds for the
reduced milk production, namely, infertility and bad weather. When that got to
the panel, in the light in particular of the letter from the veterinary surgeon
to which I have already referred, the panel by its secretary wrote a letter of
October 3 1984 to the applicant. It is unnecessary to read the letter in full,
but it seems to me quite clear that the panel was referring to and requiring
further information about the weather which was alleged to have caused the fall
in production, at least in part, and about the three matters material to the
health of the herd in 1983; infertility, mastitis and leptospirosis. With
leptospirosis I have already dealt. In so far as mastitis is concerned, it will
have been appreciated that it was not a matter of no consequence because the
veterinary surgeon’s letter of August 20 1984 referred specifically to a high
incidence of mastitis at this time.
Having asked
for further information from the applicant or for further particulars of the
grounds upon which he was putting forward his claim for review, the panel
received no reply. Mr Pulman submitted that in those circumstances the panel
was entitled to say merely that the applicant had not proved the necessary
percentage reduction attributable to weather conditions, namely, the 15%
reduction to which I have already referred. Mr Pulman submitted that that was
its view was made quite clear by its reasons on p 56, which I have quoted. Mr
Pulman submitted that it was also quite clear from the panel members’
individual reasons, which they severally wrote on an appropriate form. The
exact provenance of the reasons in this case was not clear, but when they were
introduced before us there was no objection. Accordingly I refer to them. In so
far as Mr Race is concerned, he said that the minister’s decision, so far as
matters other than epizootic diseases were concerned, was upheld because
the applicant
has not conclusively proved
as I have
already indicated, I think he meant exclusively proved
a 15%
reduction in yield due to bad weather. Whilst the drop in yield, taking account
of the fact that the yield in 1982 was probably depressed by the laying of a
pipeline across the farm, may have been over 15%, it was not proved that this
was solely due to weather, given the health problems (mastitis and infertility)
in the herd.
The second
member of the panel gave his reasons in these words:
The applicant
has not proved that there was a reduction in yield of 15% due to weather conditions.
There is the reduction due to the laying of pipe line which may have brought to
over 15%. No reduction in yield has been allowed for, for the mastitis
infection or the infertility in the herd. There must have been some
reduction in yield due to these two conditions.
Mr Twigg, the
third member of the panel, said this:
1. Base year
revision claim based on (1) exceptional rainfall, (2) disease problems in herd.
2. The Minister’s decision is upheld because the Applicant has not
proved the reduction was greater (82-83) to by more than 15%.
I accept Mr
Gordon’s contention that Mr Twigg was in error in referring to the 82-83
reduction there, if indeed he meant that, because the application was to
substitute 1981. Although there was an error it does not, in my judgment, go to
the fundamental basis of Mr Twigg’s reasoning, nor indeed to the basis of the
panel’s decision as a whole. Mr Twigg continued:
It was noted
that due to pipeline works in 1982 may have increased the loss to over 15% but
it is evident that there was considerable disease prevalent on the farm and
this would account for some part of the loss. Unfortunately the Veterinary
Surgeon’s letter indicated that it was almost impossible to identify
leptospirosis. The vet also referred to mastitis but the Applicant stated that
in his view no loss (per cow) occurred from these causes.
In answer to
Mr Pulman’s contention, namely that all the panel had been doing was merely to
say, looking at the material: ‘You, the applicant, have not satisfied the
burden upon you in relation to the separate reasons for the reduction in milk
production, particularly weather’, Mr Gordon pointed out that in the
applicant’s own application he had allowed 11% for infertility. There was still
a reduction of 20% to be accounted for and, accordingly, the panel had erred in
saying that there had not been proved a reduction due to bad weather greater
than 15%.
However, I do
not think that one can overlook the terms of the veterinary surgeon’s letter of
August 20 and its reference to a high incidence of mastitis. The panel asked
for appropriate percentage figures in its secretary’s letter to which it got no
answer. This, it must be remembered, was not a panel of those who had no
experience whatever in farming matters. They were all three experienced and
qualified in this particular context. In those circumstances, on that material
I think they were fully entitled to say that in their view the case had not
been proved. For my part, I would uphold Mr Pulman’s submissions about precisely
how the panel reached its decision and refuse this application.
I would add
that although we do not propose to take delay as such into consideration under
section 31(6) of the 1981 Act in this particular case for the reasons I have
indicated, the fact is that with the passage of the years since 1984 local
panels of the Dairy Produce Quota Tribunal no longer exist. They were not
continued in existence by the new 1986 regulations (SI 1986 No 470) which have
superseded the 1984 regulations. Consequently, if the panel’s decision had been
susceptible to valid challenge on the basis set out in the notice of
application, I would have found it necessary to ask myself: What would have
been the result? We would perhaps have
quashed that
There is no way that I can see by which we could give effect to a substitution
of 1981 as this applicant’s base year rather than 1983. Faced with this
difficulty, Mr Gordon suggested that a course which the court might take in
such circumstances would have been to have granted an appropriate declaration.
But again I ask: What would that now achieve?
The suggestion is that it might help an argument by the applicant under regulation
12 of the new 1986 regulations. That provides:
Where, by
reason of a mistake made by the Minister or any person acting on his behalf, a
person has not been allocated any quota or has been allocated a smaller
quantity of any such quota than he would have been allocated if the mistake had
not been made, the Minister may allocate to that person such quota as will
compensate, in whole or in part, for that mistake from the national direct
sales reserve or from the appropriate running regional wholesale reserve, as
the case may be.
For my part, I
do not think that the panel can in any way be said to have been acting on
behalf of the minister, as is required by regulation 12. It is quite clear that
the whole essence of the scheme and the review by the local panel was that the
former should be independent of the minister and that the latter should provide
an independent review of the minister’s rejection of the application for a base
year revision. For my part, I cannot see that regulation 12 of the 1986
regulations is likely to afford any comfort to an applicant, successful in an
application for judicial review, in the context of the instant proceedings.
Finally, it
was suggested that there might be a way around the difficulty in which the
applicant, and for that matter the court, might find itself under the terms of
the EEC regulation itself. I do not think it is clear how that should be
achieved. In any event, I am far from satisfied, having regard to the
phraseology of the EEC regulation, that the weather and its effect, complained
of in the present case, constituted ‘a serious natural disaster’ which is the
requirement of the EEC regulation.
Consequently,
in my judgment, even if the challenge to the panel’s decision in the instant
case could have been made good on the grounds set out in Form 86A, I do not
think there would have been any effective or worthwhile remedy which this court
could give to the applicant in those circumstances. In such a situation I would
have declined, notwithstanding the success of the challenge, to have exercised
my discretion either to grant certiorari or the declaration in whatever form Mr
Gordon sought.
Be that as it
may, for the reasons which I gave earlier in the course of this judgment, I do
not think that the challenge to the panel’s decision was made good. I accept Mr
Pulman’s explanation of the basis upon which the panel reached its decision.
Accordingly, I would dismiss this application.
Agreeing,
MACPHERSON J said: I add only one point. We were told that a very heavy levy,
of up to £20,000, might be suffered by this applicant as a result of
over-production. This has turned out not to be so. In any case, after a quota
is fixed a farmer over-produces at his own peril. Avoidance of levy is thus in
his own hands, so that I see no injustice in this aspect of the case.
I would reject
this application for the reasons set out by my Lord.
The
application was dismissed with costs, both of the hearing before Nolan J and
the present hearing.
