High Burrow Organic Farming Partnership, R (on the application of) v Secretary of State for the Department of the Environment, Food & Rural Affairs

MR JUSTICE MITTING: The claimant is an organic dairy farmer with a herd of over 400 organic cattle at a farm in Somerset. As is explained in background evidence, organic farmers whose cattle are culled, although they receive compensation from the Government, find it far more difficult than non-organic farmers to replace culled cattle. There is not a ready market for organic cattle in the United Kingdom. Organic herds tend only to be dispersed by sale on the death of the farmer. Consequently, a decision to cull cattle at an organic farm can have -- and it is claimed in this case will have -- a catastrophic effect upon the economic viability of the farm.

On 17th September 2007 in a routine four-yearly test, one animal in the claimant's herd tested positive for tuberculosis on a skin test. The animal had in fact been bought from a farm in Herefordshire on 11th January 2006. It was subsequently found to be infected with a strain of tuberculosis typical in that part of Herefordshire.

In late November 2007 the claimant's herd was again tested for bovine tuberculosis. The claimant was notified that 14 animals had tested positive on the skin test, and 86 animals had tested positive on a blood test. This led the veterinary surgeon who supervised the testing to observe to DEFRA officials on 28th November 2007 that:

The confirmation as to the reliability of the test which he sought was given by Dr Whelan at the veterinary laboratory who emailed Mr de la Rua on 30th November 2007 stating that he had reviewed the data and "see no reason to question its validity". He expands upon that short sentence in a lengthy witness statement.

The policy which they were applying is set out in a witness statement of Mr John Montague, the Head of Veterinary Advice and TB Policy at DEFRA and himself a member of the College of Veterinary Surgeons. He summarises it in paragraphs 63, 60.4 and 52 of the witness statement. It can summarised as follows. First, in parts of the country where tuberculosis is not rife, DEFRA will attempt to control the spread of the disease by, amongst other steps, deploying the gamma-interferon test, or blood test, in the case of all new confirmed breakdowns in herds. Secondly, the blood test will be deployed for the purpose of identifying more infected animals earlier than would be identified by traditional skin testing. Thirdly, it is not DEFRA's policy to set aside results produced by either test, unless there is clear evidence that an individual test, or group of tests, is unreliable because of concerns over the way the test was performed.

When the proposed culling of the 86 animals which had tested positive by either the skin test or the blood test or both was initially called into question, Lord Rooker, the Minister for Sustainable Food and Farming and Animal Welfare, responded on 20th December 2007 reiterating the third of the tests propounded by Mr Montague.

The underlying challenge in these proceedings is to that element of the policy. In a nutshell, Mr Mercer submits that where blood and skin tests, taken together, produce statistically surprising results, then some further step, which he identifies as re-testing by blood and skin tests, should be undertaken to check the result. The submission is made against the fact that the outcome for an organic farmer such as the claimant is quite likely to be economically disastrous.

The challenged decision was taken pursuant to section 32 of the Animal Health Act 1981 which provides:

It is common ground that that provision in primary legislation has to be read against the background of EU Directives. The Principal Directive currently in force is 64/432/EEC, the fourth recital of which provides:

Annex A contains an exhaustive definition of what is an "officially tuberculosis-free bovine herd". It is:

Council Directive 78/52/EEC contained more detailed provision for, amongst other animal diseases, bovine tuberculosis. Articles 14 and 15 relevantly provide:

There is an exemption which permits postponement of slaughter for three months in the case of pregnant female animals and animals situated in an area in which adequate slaughter house capacity is not available. This Directive requires that Member States must isolate and then slaughter cattle in which the presence of tuberculosis has been officially established (that is to say established by the traditional tuberculin skin test) and "those considered by the competent authorities to be infected".

In the light of the permission given in paragraph 3 of Annex B to the amended 1964 Directive, Articles 14 and 15 of the 1978 Directive both permit a Member State to identify infected cattle by means other than the tuberculin test and require the Member State to proceed to slaughter where those means lead the competent authorities to consider the cattle to be infected.

Mr Mercer contends that the powers that exist under section 32 of the 1981 Act should be construed, and if necessary limited, in the light of those provisions of the two Directives. Accepting that proposition as correct, it seems to me that it is capable of producing only the answer which I have given. If DEFRA considers that the results of the blood tests show that cattle are infected, they must proceed to slaughter.

DEFRA's policy, as explained by Mr Montague, contains a limited and reasonable exception: that if there is reason to doubt that the test has been properly carried out then without, in such a case, re-testing, it will not consider the cattle to be infected with tuberculosis. It is common ground in this case, following the detailed explanation by Dr Whelan of the check which he carried out on these tests, that there is no reason to doubt that they were properly carried out. Accordingly, applying the policy, DEFRA was bound to decide that these cattle would be slaughtered. The only route by which that conclusion is open to challenge is if the policy is itself irrational or unlawful, or, in deference to community reasoning, disproportionate.

Mr Mercer, as I have indicated, contends for a limited further qualification to the policy which I restate: that if the results of the testing are statistically surprising, the test should be undertaken again. Initially, in the claim form, the suggestion was that that test should have been the traditional tuberculin skin test. But that is not the stance adopted by Mr Mercer today, quite rightly, because, as is evident from the brief review of the background that I have undertaken, the blood test is more sensitive than the skin test and is therefore capable of identifying more infected animals.

The factual basis for the proposition is found in the report and opinion of Mr Hayton, an experienced veterinary surgeon who states uncontroversially that there is, on the current state of knowledge, no perfect, or even near perfect, test in living or dead animals for tuberculosis. He, however, identifies the chance of the two sets of results obtained by the two tests on this herd occurring in fact as one in 14,000. Accordingly, he suggests it is likely that something has gone wrong.

His opinion is in part supported by Professor Kelton, a Professor of epidemiology at Ontario Veterinary College, who opines that there are five possible reasons why such a statistically surprising result may have occurred in this herd. First, some of them could have been early cases of infection in what he calls "an explosive outbreak". Secondly, some could be false positives, failing to identify and filter out reactions to a test for avian tuberculosis. Thirdly, some of the animals could show cross-reaction with "other hitherto unknown antigens" such as unusual feedstuffs. Fourthly, the samples could have become contaminated. Fifthly, there could be errors in the laboratory testing. Professor Kelton excludes as practical possibilities the fourth and fifth in the light of the evidence of Dr Whelan. The third is not pursued as a realistic possibility and there is no evidence about it. The first is the hypothesis advanced by Professor Hewinson who had produced a lengthy and persuasive analysis of the reason for the discrepancy between the tests, as arising from an explosive outbreak of early infection. That hypothesis, as all recognise, supports DEFRA's decision.

The focus of the claimant's attention is on the second of Professor Kelton's possibilities, that the test could be false positives. If I have correctly understood the basis upon which Professor Kelton considers that the tests may be false positives (that is to say because they react for avian tuberculosis), that possibility was expressly excluded by the tests carried out by Dr Whelan and can be excluded as a possibility. Judicial review is not, however, an appropriate set of proceedings in which to determine these complex scientific questions. As Lord Bingham observed in R v Secretary of State for Health ex parte Eastside Cheese Company [1999] Eu.LR 968 at 987G:

Analysis of the remedy sought by the claimant shows the ultimate futility of these proceedings. On the evidence presented to me, and on the submissions made to me, which draw upon informed scientific opinion, there is simply no empirical evidence to show that blood tests which have proved positive may, if retaken, prove negative. Accordingly, and save for the purpose of scientific research on what would be an uncontrolled sample, the retesting of these animals, on the evidence which I have, is most unlikely to produce an outcome of any practical benefit to the claimant. But I do not decide this judicial review on the basis that the remedy sought would not be adequate. I decide it squarely on the basis that I have already considered, namely that the policy adopted by DEFRA of using blood tests on herds in areas previously free from tuberculosis is lawful, and that its decision to proceed to slaughter animals which test positive on such tests is not only lawful but mandatory, save in the case identified by it in its policy where there is reason to doubt that the test has been properly performed. The policy is lawful. The outcome, unhappy and potentially disastrous though it may be for the claimant, inevitably flows from it.

For those reasons, this challenge to the decision to proceed to slaughter must fail.

MR MACLEAN: My Lord, there are two matters. The first is the order that was made on 22nd January 2008. Could I take to you bundle 1. It is page 99A, I hope your Lordship has that.

MR JUSTICE MITTING: Yes.

MR MACLEAN: This is an order of Mr Supperstone QC which I mentioned earlier. What I cannot put my finger on at the moment is Master Venne's order. Mr Mercer does not have either. My Lord, the point is there was a stay ordered. Paragraph 1.

MR JUSTICE MITTING: Yes.

MR MACLEAN: There was a stay ordered of the slaughter of the animals.

MR JUSTICE MITTING: It follows from that decision that that stay is lifted.

MR MACLEAN: Yes. That was the only point. Master Venne simply ordered the hearing and made this --

MR JUSTICE MITTING: The stay actually automatically lapses because it lapses on the determination of the claim.

MR MACLEAN: Absolutely, my Lord, yes. That is that point. The other point is costs. I seek my costs of defending this claim. Your Lordship should have a statement of costs.

MR JUSTICE MITTING: I do not.

MR MACLEAN: I am told it was lodged at the court yesterday in accordance with the procedure.

MR JUSTICE MITTING: One of the difficulties with the procedure is that that which is lodged in the Administrative Court Office on the day before a hearing rarely reaches the judge on the day of the hearing.

MR MACLEAN: All I can say is that we did that as the rules require. (Handed). Those costs total £29,144.50. My Lord, those are my client's costs of defending this case and I seek an order for costs that sum.

MR JUSTICE MITTING: Right. Mr Mercer, have you had this schedule sufficiently long to consider it?

MR MERCER: For about two seconds.

MR JUSTICE MITTING: The same as me then.

MR MERCER: If I can just take instructions on that point and one other point.

MR JUSTICE MITTING: Yes. We will rise while you do that.

MR MERCER: We have had an opportunity to peruse the schedule and get some clarification from the other side. They claim £29,144.50. We do not oppose that. We do not resist the order for costs in that sum. We do ask for 60 days. It is a large sum of money to find. It is an individual. We would ask for 60 days to pay.

MR JUSTICE MITTING: Without interest?

MR MERCER: Hopefully, my Lord.

MR JUSTICE MITTING: That is not unreasonable, is it?

MR MACLEAN: No, my Lord.

MR MERCER: I do have a very brief further application for permission to appeal the judgment. In a sense it is just when your Lordship got to the point that judicial review is not an appropriate place to determine the complex scientific issues. We entirely take the point of Lord Bingham in Eastside Cheese not to get into the experts, but we specifically tailored our submissions in such a way that there was a route open to your Lordship. We say on the law of proportionality that the minimal interference with rights was the right test to apply. We say that, firstly, your Lordship erred in simply following Lord Bingham's words which are, we still say, in a slightly different context, and secondly, we say it is a point of public importance. There are several cases behind it and it is a matter affecting many people.

MR JUSTICE MITTING: I acknowledge that the case is going to be of importance to a small but significant number of farmers, but I do think, I am afraid, that the answer is obvious and I do not believe, rightly or wrongly, that you have a realistic prospect of success. It seems to me that it would be more appropriate for the Court of Appeal to judge your application than for me to give you permission. Accordingly, the outcome of these proceedings are that the claim is dismissed. The costs I assess in the sum of £29,144.50. The claimant is to have 60 days in which to pay that sum without interest.

MR MERCER: Thank you, my Lord.

MR JUSTICE MITTING: Thank you both.