Preliminary issue–Adverse decision of milk quota tribunal–Whether defendants negligent in failing to advise remedy — High Court holding that defendants negligent–The plaintiffs were entitled to make an exceptional hardship claim–Court of Appeal dismissing appeal
Until the completion of a contract for sale on May 1 1984, the plaintiffs farmed Archers Farm, Wiltshire, running a dairy herd of 100 cows on 112 acres. In June 1983 the plaintiffs exchanged contracts for the purchase of Greys Green Farm, Henley, Oxfordshire, a 429-acre farm that had not been used for dairy purposes for 10 years. The purchase was completed in September 1983. Between August 1983 and April 1984 the plaintiffs constructed a milking parlour, silage plant and water supply on Greys Green Farm. They also provided 100 acres of grass leys. Although eight dry cows and 20 followers were moved in early 1984, the milking herd was not moved from Archers Farm to Greys Green Farm until April 4 1984. The Dairy Quotas Regulations 1984 gave effect to EC Council Regulations 856/84 and 804/84, which imposed levies on milk production above prescribed quotas as from April 1 1984. The plaintiffs received provisional assessment of primary milk quotas calculated on the basis of their milk production at Archers Farm in 1983, but none for Greys Green farm.
The Dairy Produce Quotas Tribunal dismissed the reference to them of the plaintiffs’ claim for a quota based on their expected milk sales to the Milk Marketing Board between April 2 1984 and March 31 1985 from a herd which they expected to be 150 cows at March 31 1984. They also applied for exceptional hardship quota. The High Court held that the NFU (the defendants) were negligent in failing to advise that a challenge could be brought by way of judicial review within three months; that the plaintiffs were entitled to make an exceptional hardship claim; and gave judgment for the plaintiffs: see [1992] 1 EGLR 175. The defendants appealed.
Held The appeal was dismissed.
1. The defendants held themselves out as competent to advise the plaintiffs and knew that they relied on such advice. The judge’s findings of fact and his conclusion that the defendants were in breach of their duty were unassailable.
2. The tribunal erred in failing to give an adequate explanation of its decision and to deal with the substantial points raised.
3. On the true construction of the Dairy Produce Quotas Regulations 1984 for the purposes of an exceptional hardship claim, there was no cut-off date of March 31 1985 as applied by the tribunal: see R v Dairy Produce Quota Tribunal, ex parte Caswell [1982] 2 EGLR 1.
4. To be eligible for exceptional hardship quota, para 17(3) of Schedule 2 to the 1984 regulations required that a claimant must be a person to whom article 4.1(c) of EC Council Regulation 857/84 applied. The stated purpose of article 4 was to complete the restructuring of milk production and recognised that there were exceptional situations which might be appropriate to allow a member state to grant additional quotas. It would be anomalous and unfair if dairy farmers like the plaintiffs who had produced milk for years, who were producing milk on April 2 1984 and who had incurred significant expenditure with a view to continuing milk production should be wholly ineligible for the additional quotas contemplated.
5. Under the 1984 regulations there was no possibility of two quotas being granted in respect of the same holding. However, there was no difficulty in eligibility being founded for both a transferor and a transferee in respect of the same land, as that was what justice might demand in an unusual set of circumstances such as that which obtained in this case.
6. Para 17(3)(a) and (b) of the 1984 regulations applied to the circumstances of the plaintiffs and it followed that the tribunal had erred in law in holding to the contrary.
7. The plaintiffs had a chance which was more than negligible of establishing before the tribunal at a rehearing that para 17(3)(c), (d) and (e) applied to their circumstances.
8. As the tribunal had erred in law the Divisional Court, had an application been made in time, would have exercised its discretion to remit the case to the tribunal for a rehearing.
Alan Moses QC and Richard Gordon (instructed by Dawson & Co) appeared for the plaintiffs; Stuart Isaacs QC and Richard McManus (instructed by Lloyd Cooper) appeared for the defendants.
