Milk quota — Decision of Dairy Produce Quota Tribunal challenged by applicant — Claim for wholesale quota put forward by applicant on grounds of exceptional hardship dismissed by tribunal — This was in fact the third attempt by the applicant to establish his claim to quota — The first claim, not based on exceptional hardship, was correctly dismissed, as the applicant was not engaged in milk production on April 2 1984 and had no primary quota — The second attempt, based on exceptional hardship, was wrongly dismissed and the tribunal’s decision was quashed for error of law — The third attempt, which was also rejected (by a different tribunal), led to the present application — The applicant had been given a tenancy of 161 acres by his father and had purchased 113 Friesian heifers with a view to going into business as a milk producer — The applicant had no buildings for milking cows on the land of which he was a tenant, but there was an agreement or arrangement for the applicant to use a new milking parlour and other milking facilities on land belonging to his father and farmed by a partnership consisting of the father and the applicant’s two brothers — Under the Dairy Produce Quotas Regulations 1984, para 17(3)(a), a claimant invoking the exceptional hardship provisions had to establish that he had entered into a transaction or made an arrangement the reasonably expected outcome of which was a level of wholesale delivery of dairy produce in respect of which, or a substantial part of which, wholesale quota was not otherwise capable under these regulations of being allocated to him
decided that the applicant did not satisfy the regulations on the ground that
he did not have a legally enforceable right to use the milking parlour — Held
by Webster J that the tribunal had misdirected themselves — There was clear
evidence of a verbal agreement for the applicant to use the milking parlour and
it was consistent with the evidence that the agreement had legal effect — Even
if it had not such effect, however, it was capable of constituting a
‘transaction’ or ‘arrangement’ within the meaning of para 17(3)(a) — For that
reason alone the tribunal’s decision must be quashed
of the hearing before the tribunal at 10.30 am the applicant had asked for an
adjournment on the ground that his counsel had not yet arrived, but the request
was refused — when his counsel did arrive at 12.30 pm he invited the tribunal
to hear the case de novo, but this was also refused — By 12.30 pm most of the
evidence had been given and the applicant’s counsel had to make his closing
speech without hearing the most substantial part of the evidence — As the
decision had been quashed on the substantive ground mentioned above, it was not
necessary to decide whether it would have been invalidated by the tribunal’s
rulings on adjournment — The court had, however, ‘at least some doubt whether
the discretion was fairly exercised in this case’ — The consideration which led
to the refusal appeared to have been the personal convenience of panel members
— Such a consideration, although not to be excluded, must be balanced fairly
against the injustice which might be done to the party concerned by the refusal
of the adjournment — In any case, if the case had been adjourned until counsel
arrived, the hearing would have ended by 5 pm, well within the day — It was
possible that if the tribunal had heard the claim opened by counsel they would
not have fallen into the error which vitiated their decision — Decision quashed
and order of mandamus to go — Some general advice to tribunals on adjournments
No cases are
referred to in this report.
This was an
application by Andrew Roy Lifely for judicial review with a view to quashing a
decision of the Dairy Produce Quotas Tribunal for England and Wales. The applicant
had made a claim for wholesale quota on the ground of exceptional hardship
pursuant to para 17(3) of the Dairy Produce Quotas Regulations 1984 (SI 1984 no
1047).
R Gordon
(instructed by Dawson & Co) appeared on behalf of the applicant; T Briden
(instructed by the Solicitor, Ministry of Agriculture, Fisheries and Food)
represented the tribunal.
Giving
judgment, WEBSTER J said: This is an application by Andrew Roy Lifely to quash
a decision of the Dairy Produce Quota Tribunal for England and Wales, dated January
5 1987, by which that tribunal rejected the applicant’s claim for wholesale
quota on the grounds of exceptional hardship.
The applicant
is one of three sons of Mr R D R Lifely, who has farmed in Herefordshire for
some years and has gradually passed his farming business over to each of his
three sons.
Before the
introduction of the milk quota system, the applicant was established in
business as a farmer leasing land from his father. It was his intention to
become a dairy farmer producing and selling, inter alia, milk on a
wholesale basis. But he was not engaged in milk prodution on April 2 1984.
From April 1
1984 the sale of milk wholesale became subject to a wholesale quota allocated
to each milk producer under the Dairy Produce Quotas Regulations 1984 (SI 1984
no 1047).* Those regulations were made
under a power conferred by the European Communities Act 1972 and subsequent EEC
regulations. Under the 1984 Regulations, those engaged in milk production on
April 2 1984 were allocated a primary wholesale quota calculated in accordance
with a specific formula. Milk producers who were dissatisfied with their
primary wholesale quota were, in certain cases, permitted to make a ‘special
case claim’ for a ‘secondary wholesale quota’. Those persons who were not engaged
in milk production on April 2 1984 were not entitled either to primary or to
secondary wholesale quotas.
*Editor’s
note: These regulations were revoked by the Dairy Produce Quotas Regulations
1986, Sched 19, which came into operation on March 31 1986. Reg 16 and Sched 8
deal with exceptional hardship.
Notwithstanding,
or perhaps failing to understand, that aspect of the law, the applicant’s first
claim under these regulations, which he made on about July 28 1984, was for a
secondary wholesale quota. Not surprisingly, on November 6 1984, the local
panel, who had the jurisdiction to entertain such a claim, rejected the
applicant’s claim on the basis that the applicant had no primary quota and was
not engaged in milk production on April 2 1984. It is not disputed but that the
local panel was correct in rejecting that claim.
At the same
time that they rejected it, they observed:
The panel do
however make a strong recommendation that this case be considered under the
exceptional hardship provisions, and would give their full support to any such
application.
Under the
exceptional hardship provisions, a claimant has to establish to the
satisfaction of the appropriate tribunal five matters contained in para 17(3)(a)
to (e) respectively. Those requirements are:
(a) Before 2nd April 1984 he [the applicant] has
entered into, or become obliged to enter into, a transaction or made an
arrangement . . . (ii) the reasonably expected outcome of which is a level of
wholesale delivery of dairy produce in respect of which, or a substantial part
of which, wholesale quota is not otherwise capable under these regulations of
being allocated to him,
(b) at the time of entering into or becoming
obliged to enter into that transaction or making that arrangement, he intended
to go into or remain in business as a producer,
(c) he has not received, and will not receive or
become entitled to receive, as a result of that transaction or arrangement,
benefit reasonably commensurate with the want of wholesale quota to which his
exceptional hardship claim relates,
(d) as a result of the matters specified in the
preceding paragraphs of this subparagraph, he has suffered or will suffer
exceptional hardship in comparison with producers in general, and
(e) it is fair and reasonable that he should be
allocated wholesale quota as a result of his exceptional hardship claim.
The first
claim which the applicant made for a wholesale quota based on exceptional
hardship was rejected by the Dairy Produce Quota Tribunal, to whom the claim
has to be made, on January 10 1985. They purported to reject that claim on the
basis that because the applicant had no primary or secondary quota, not being
engaged in milk production on April 2 1984, he could not be entitled to make an
exceptional hardship claim. In arriving at that decision for those reasons the
tribunal erred in law and, by consent, an order of this court was obtained on
October 29 1986 quashing that decision. At the same time, it was ordered that
the application should be reheard, and so the matter came back to a different
tribunal on December 15 1986.
The
applicant’s claim was based upon the following matters which I will enumerate:
(1) A written tenancy agreement dated September
29 1980 between the applicant and his father for the letting of 106 acres to
the applicant for farming on Lane Head Farm. (2) An oral agreement concluded in
about September 1983 for the letting of an additional 55 acres of grass keep.
(3) The purchase, between November 1983 and March 1984, of 83 Friesian heifers
for about £22,000. (4) The purchase in March 1984 of an additional 30 Friesian
heifers. (5) An agreement or arrangement enabling the applicant to use the
milking parlour and other milking facilities constructed (at a cost of about
£134,000) by the applicant’s father for milking the applicant’s cows.
There is and
was before the tribunal no issue about the first four of those matters, but the
tribunal decided that there was no transaction or arrangement upon which the
applicant was entitled to rely for the purposes of para 17(3)(a) of Part
II of the Second Schedule to the regulations.
In their
reasons, the tribunal, having referred to the first four of those five matters
which I have mentioned, continued in paras 3 and 4 of their reasons, in these
terms:
The applicant
conceded that he had no buildings on his tenanted land in which to milk cows.
The Tribunal received oral evidence that there was an understanding to provide
milking facilities for the applicant situated on land tenanted by his brothers.
No written confirmation was produced.
4. As for
paragraph 17(3)(b) of the Regulations, the Tribunal accepts that the
applicant purchased stock with the intention to go into business as a producer.
However, the Tribunal does not consider that the understanding referred to in
paragraph 3 above satisfies the requirements of paragraph 17(3)(a) of
the Regulations. In any event, the Tribunal does not consider it fair or
reasonable that the applicant should be allocated wholesale quota in respect of
his exceptional hardship claim.
It is quite
clear that the primary reason for which the tribunal dismissed the claim was
that they concluded that the understanding to which they referred did not
satisfy the requirements of para 17(3)(a). They appear to have accepted
that the applicant satisfied the requirements of subpara (b), but,
presumably because they decided that there was no relevant transaction or
arrangement, they made no finding on subpara (a)(ii) or on subparas (c)
or (d). They gave no reasons for their adverse conclusion on subpara (e),
and if their decision had turned on that subpara, or even if they are to be
taken as having said that they would have decided the claim adversely to the
applicant on that ground alone, in my view a mere recital that the applicant
does not satisfy the terms of the subpara does not constitute a sufficiently
reasoned decision in a case of this kind.
The main issue
on this application is whether the tribunal’s conclusion on para 17(3)(a)
was vitiated by an express or implied misdirection. The evidence about this
arrangement given by the applicant in support of his application to this court
is evidence which the tribunal chairman, Mr Gerald Owen, in an affidavit sworn
by him, says that the tribunal accepted. The applicant says, at para 5, subpara
7 of his affidavit:
The land on
which the milking parlour was built was not the land let to me (although there
were buildings on the land leased to me that were suitable for the
accommodation of 400 cows). It was, however, arranged between my father, myself
and my two brothers that I should enjoy the same facilities when I went into
milk production.
He then
produces, as an exhibit to his affidavit, a copy of an agreement made on
September 29 1983 between his father and his two brothers, although that
agreement was not produced before the tribunal. None the less, it is part of
the background which I should recite. It reads:
THIS AGREEMENT
made the twenty ninth day of September, One thousand nine hundred and eighty
three is made between RICHARD DAVID ROY LIFELY . . . (the Land Owner) . . . and
NIGEL SIMON LIFELY and NICHOLAS DAVID JOHN LIFELY . . . (the Partners) WHEREBY
the Partners have agreed to and carry on farming activities in partnership upon
land belonging to the Land Owner and have agreed to enter into this share
farming agreement as appears below.
1. (a) In
consideration of the employment of the Land Owner by the Partners as a
consultant to the said partnership, the Land Owner permits the Partnership by
way of business licence to carry on its farming activities and jointly with the
Landowner, where appropriate, at and upon the property known as Shepherds
Meadow Farm, Herefordshire, containing one hundred and seventy five acres or
thereabouts TOGETHER WITH all farm buildings upon such farm
— and here are
the material words —
(but excluding
the dwellinghouse, two Urry buildings and adjoining silage pit, collecting
yard, milking parlour access thereto, store room and Warlow Field) and together
with any such additional land as may be provided by the Land Owner for the
benefit of the Partners without any payment for such use.
(b) For the
avoidance of doubt, IT IS DECLARED that all or any of the land and buildings
excluded from this agreement in paragraph (a) above are reserved for the
exclusive use of Andrew Roy Lifely for the purpose of milk production.
In the
paragraph of the applicant’s affidavit which I have just quoted, he concludes,
having referred to that agreement:
I
respectfully submit, therefore, that whilst I was not a party to the said
agreement it was clearly intended that I should take the benefit of it.
That seems to
me an entirely fair comment.
The tribunal
chairman has exhibited notes of the hearing before the tribunal. Those notes
include the following relevant passages. At p 3 of the notes, the applicant’s
father is recorded as having said: ‘Had new parlour built for all sons to milk.
All £136,000 paid for by me as landlord.’
At p 5, when the applicant himself was giving evidence, there was a
question which was noted by the chairman which read: ‘Before 2/4/84, what
agreement do you say you entered into that entitles you to quota? Answer. I entered into no agreement
but bought heifers. My father as landlord.’
A little further down, there is noted: ‘Agreement with father to have
benefit of FHD scheme. Chairman: Can I see agreement. Answer:
Have no agreement between father and son.’
A little further down, one sees: ‘Applicant. Had use of milking
parlour and building. Verbal agreement with father. No other agreements.’
It is to be
noted when considering those passages that the questions by the learned chairman
were all directed to whether or not there was an agreement. No question was
directed to the question of whether there was any arrangement.
At p 7, the
applicant is recorded as having said: ‘Use of milking parlour — verbal
agreement’. But then under the word ‘agreement’, the maker of the note has
drawn an arrow and underneath it has written ‘not legal’.
At p 8, Mr
Nelson, one of the panel members, is recorded as having said: ‘No legal
agreement to milk through parlour. Agreement should be between sons.’ There is then a brief reference to something
said by the applicant’s counsel. All that is transcribed is:
‘Transaction/arrangement.’ Further down
on the same p 8, the chairman is recorded as having used these words: ‘From
legal point of view . . .’ It is then
not quite clear how that sentence is intended to have concluded.
Finally, at
p.13 (and there are, no doubt, some other similar references which I have not
picked up), at the last page of the notes of evidence, Mr Nelson was recorded
as having said: ‘Produced no evidence to show Andrew has access to building nor
any obligation to show, the other sons had to let Andrew access.’ The meaning is quite clear although obviously
a word or two have been omitted. Later in the notes, it may be Mr Nelson still
or it may be someone else is recorded as having said: ‘Did not put in any
agreement. Andrew had right to building. Andrew would be trespassing on their
land. Had no building to milk cows. No legal evidence produced that Andrew had
access to building.’ Mr Stratton, who
was the other panel member, is recorded as having said: ‘Andrew’s tenancy says
tenant cannot sublet.’ The chairman is
recorded as having said: ‘There is no evidence to legal right to enter milking
buildings.’
As I said, the
tribunal did not have the agreement of September 29 1983 in front of them. But
even without that agreement and the declaration in clause 1(a), which is wholly
consistent with an agreement having legal force between the father and the two
brothers on the one hand and the applicant on the other, that the applicant
should have a legally enforceable right to use the milking parlour, there was,
in my judgment, clear evidence before the tribunal not of ‘an understanding’,
to use their words, but of a verbal agreement to that effect. (See the
references to pp 5 and 7 of the notes which I have just made.) Even if that verbal agreement were not
legally enforceable, such a verbal agreement must, in my judgment, have constituted,
or at least have been capable of having constituted, a transaction or
arrangement within the meaning of para 17(3)(a). In my judgment, the tribunal,
in failing to treat it as such, because, as it seems to me, they clearly
concluded that it was incapable of constituting such an arrangement, either
misdirected themselves in law or reached a decision which no tribunal, properly
directing itself, could have reached. So, for that reason alone, in my
judgment, their decision must be quashed.
Mr Briden, on
behalf of the tribunal, has bravely attempted to dissuade me from that
conclusion. Although he accepts, as he must, that an arrangement connotes or
includes something having less than legal force, he submits that the tribunal
were entitled to take account of the fact that the applicant had not yet used
the milking facilities and of the fact that, for one reason or another, he
might never in fact do so. However, those facts are wholly irrelevant to the
question whether, before April 2 1984, the applicant had entered into a
material transaction or made a material arrangement. They become relevant only
in relation to the consideration of the reasonable expectation referred to in
subpara 17(3)(a)(ii) about which the tribunal expressed no decision.
Mr Briden also
suggested that the tribunal were entitled, for the purpose of considering para
17(3)(a), to ask whether any agreement were legally binding or not. So
they were, even though the answer to the question is not determinant of the
question whether the applicant satisfied the requirements of that subparagraph.
Of course, if the agreement were legally binding, there could not fail to have
been a material transaction or arrangement.
Finally, Mr
Briden submitted that it is not clear that the tribunal rejected the existence
of a material transaction or arrangement because they concluded that the
agreement or arrangement, not being legally binding, was not capable of
constituting such a transaction or arrangement. But the whole tenor of the
questions asked by the tribunal and the points made during the hearing, and, in
particular, the concluding observations of Mr Nelson and the chairman, together
with the use of the word ‘understanding’ in their reasons, demonstrate
unequivocally to me that they decided that the verbal agreement referred to in
the evidence could not constitute a material arrangement because they concluded
that it was not legally enforceable.
Mr Briden has
not therefore succeeded in dissuading me from the conclusion that the decision
must be quashed.
I should,
however, mention another ground upon which the applicant would have sought to
have relied if necessary. He complains of a procedural impropriety which he
contends arose in the following circumstances. At the start of the hearing
before the tribunal, the applicant’s counsel had not arrived. The applicant
therefore asked for an adjournment but was told, through the secretary of the
tribunal, that the application was refused and that the case would start at
10.30 am. When the applicant’s counsel did arrive, soon after noon, he invited
the chairman of the tribunal to listen to the case de novo, but the
chairman refused. According to the applicant, he had barely any opportunity to
inform his counsel what had occurred during the hearing between 10.30 am and
12.20 pm, when his counsel arrived, by which time most of the evidence had been
given. So, the applicant’s counsel had to make his closing address without
having heard the most substantial part of the evidence.
It is not
often that the High Court will interfere with the exercise by an inferior court
or tribunal of its discretion in relation to an adjournment, but this might
have been one of the rare cases in which I would have done so. I take the view,
which I am sure is universally shared, that all courts and tribunals which sit
for the purpose of administering the law or of making decisions of fact are
thereby sitting for the purpose of providing a service to the public. Of
course, it is very often the case, in many courts and tribunals, that an
application by one party that his case should be adjourned has an adverse
knock-on effect upon other parties waiting to come on, or on the commitments of
witnesses or lawyers on the other side, or sometimes on court staff. It is not
surprising that such applications frequently fail for that reason. It could
well be reasonably said that it would be contrary to the interests of the
public that such applications to adjourn should be granted.
However, the
only reason given by the chairman for refusing the request for an adjournment
in the present case until counsel arrived was that it was the intention that
the hearing should be finished in the day, and that, as he believed, two panel
members and the applicant and his father had travelled some considerable
distance to attend the hearing. The only consideration which led to the refusal
seems therefore to have been the personal convenience of the panel members,
because the applicant and his father were asking for the adjournment.
That is a
consideration which, of course, a tribunal is entitled to take into account,
but I take the view that in an ordinary case it should not be given as much
weight as the inconvenience which would be caused to other parties waiting to
come on or to witnesses. I take the view that if the personal convenience of
the tribunal in question is to be considered, it should be balanced fairly
against the injustice which may be done to the party concerned if the
adjournment is refused.
On the
material before me, I have at least some doubt whether the discretion was
fairly exercised in this case. I am told that the hearing finished at about
3.30 pm. As I have said, counsel arrived soon after noon. The hearing began at
10.30 am. If it had been adjourned until counsel arrived and if the luncheon
adjournment, which was over an hour according to the chairman’s affidavit, had
been of the same length, the hearing would have ended by 5 pm, that is to say,
well within the day.
It seems to me
not beyond the bounds of possibility that if the tribunal had heard the claim
opened by counsel, they would not have made the error which they have in fact
made. Moreover, it was perhaps especially necessary to ensure that this
applicant had a full and fair hearing in the light, first, of the view
expressed by the local panel in November 1984 and, more particularly, in the
light of the fact that the tribunal, albeit differently constituted, had
already made one decision adverse to the applicant which had to be quashed
because it was wrong in law.
In these
circumstances, I quash the decision, and I think the order for mandamus must
follow, must it not?
Application
for mandamus to quash decision granted with costs.
