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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Barco De Vapor BV & Ors (t/a Joint Carrier) v Thanet District Council [2014] EWHC 490 (Ch) (27 February 2014) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2014/490.html Cite as: [2015] WLR(D) 127, [2014] EWHC 490 (Ch), [2015] Bus LR 593 |
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CHANCERY DIVISION
7 Rolls Buildings Fetter Lane London EC4A 1NL |
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B e f o r e :
____________________
(1) BARCO DE VAPOR B.V. (2) ONDERWATER AGNEAUX B.V (3) JOHANNES QUIRINIUS WOUTERIUS MARIA ONDERWATER (Trading as JOINT CARRIER) |
Claimants |
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- and - |
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THANET DISTRICT COUNCIL |
Defendant |
____________________
Simon Kverndal QC and Philip Woolfe (instructed by the Defendant) for the Defendant
Hearing dates: 11th, 12th, 16th and 17th December 2013
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Crown Copyright ©
Mr Justice Birss :
Topic | Paragraph |
Introduction | 1 |
The Witnesses | 11 |
The law | 20 |
Breach of statutory duty | 30 |
EU law | 38 |
Francovich damages | 61 |
Analysis of the events | 71 |
Events in 2011 | 76 |
The monitoring group – early 2012 | 100 |
Later in 2012 | 106 |
Access to contingency plans | 112 |
The 29th August incident | 113 |
Events on 12th September | 121 |
The ban on 13th September | 149 |
After the ban | 158 |
Applying the law to the facts | 168 |
Was the ban a justifiable breach of Art 35 TFEU? | 170 |
Damages under the Francovich principle? | 174 |
Causation | 191 |
Conclusion | 192 |
Introduction
Witnesses
The law
1847 Act
33. Harbour, dock, and pier free to the public on payment of rate.
Upon payment of the rates made payable by this and the special Act, and subject to the other provisions thereof, the harbour, dock, and pier shall be open to all persons for the shipping and unshipping of goods, and the embarking and landing of passengers.
1964 Act
40.— Conditions as to use of harbour services and facilities provided by certain harbour authorities.
(1) A harbour authority shall have power to make the use of services and facilities provided by them at a harbour which, in the exercise and performance of statutory powers and duties, they are engaged in improving, maintaining or managing subject to such terms and conditions as they think fit except with respect to charges as to which their discretion is limited by a statutory provision (whether by specifying, or providing for specifying, charges to be made, or fixing or providing for fixing charges, or otherwise).
Breach of statutory duty
EU law
"Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States."
"The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of ... animals ... . Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States."
"No consignment of animals shall be detained during transport unless it is strictly necessary for the welfare of the animals or reasons of public safety. No undue delay shall occur between the completion of the loading and departure. If any consignment of animals has to be detained during transport for more than two hours, the competent authority shall ensure that appropriate arrangements are made for the care of the animals and, where necessary, their feeding, watering, unloading and accommodation."
Francovich damages
i) The rule of law infringed must be intended to confer rights on individuals;
ii) The breach must be sufficiently serious;
iii) There must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties.
"The factors which the competent court may take into consideration include the clarity and precision of the rule breached, the measure of discretion left by that rule to the national or Community authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law."
i) The more fundamental the breach, the easier it will be to regard it as sufficiently serious. Thus it is relevant if the rule of EU law breached is "not to be found in an ambiguous directive but in a clear and fundamental provision of the Treaty." per Lord Hope at p.550G-H, per Lord Slynn at p.542B. See also Lord Hoffman at p.547 and Lord Clyde at 554
ii) It is highly material that a breach of EU law would "almost certainly cause loss to those who were affected by it" and that that loss "was likely to be both serious and irremediable" and beyond the limits of ordinary economic risk (per Lord Hope at p.550H-551A. See also Lord Hoffman at p.547 and Lord Slynn at p.542D, citing Case 238/78 Ireks-Arkady [1979] ECR 2955).
iii) The fact that the authority in question was aware of legal problems and took a calculated risk will make the breach more serious (per Lord Hoffman at p.547H-548A, Lord Slynn at p.542 and Lord Hope at p.552B).
iv) So too will the fact that the Treaty wording is clear and the breach of it deliberate (see Lord Hope at p.551H).
Analysis of the events
Events in 2011
The monitoring group – early 2012
"To be fair if the facilities are not suitable then we can probably cease shipments forthwith until the facilities are in place, which of course we wouldn't do."
Later in 2012
Access to contingency plans
The 29th August incident
i) Indicated that TDC had no statutory obligation to provide specific facilities for animals at the port;
ii) Did not in fact provide any risk analysis or detailed description of contingency measures – although I do not accept the implicit point being advanced that they should have done;
iii) Refused to provide the identity of the location of the AHVLA's contingency premises in Kent for unloading of livestock (because of a concern about protestors); and
iv) Indicated that the transporters must have contingency plans.
Events on 12th September
"all hell let loose with nearly 20 people made up of RSPCA, AHVLA, Police and port staff, some with a camera in hand and a paint sprayer in the other chasing over 500 sheep around and apparently trying to find lame ones. In fact it was the chasing on the unsuitable surface that was causing the lameness. During the chase six lambs went into water resulting in four being rescued by the RSPCA and two being found dead"
The ban on 13th September
The letter:
"Re: Export of Live Animals from the Port of Ramsgate – Notice of Suspension
You may be aware that on 12 September 2012 in the port of Ramsgate the driver of vehicle BR 368 AW/BV 884 YJ was arrested by Kent Police following the detection of a sheep with a broken leg, the destruction of 38 out of 41 sheep found to be lame and the drowning of two sheep and the rescuing of four others, the latter as a result of the necessary unloading of the transporter on to a Port with no proper loading and unloading facilities, no casualty bay for the inspection and, if necessary, emergency destruction of animals, no suitable gates or pens for corralling animals and no available supplies of food and water. In this case unloading was undertaken as the only possible means by which the vet could access and examine injured sheep on the transporter.
Needless to say this caused significant disruption to the operation of the Port as well as considerable distress to the Port staff assisting the AHVLA, RSPCA and Police.
The incident follows hard on another emergency incident on 29 August 2012 when a transporter loaded with sheep waiting at the Port of Ramsgate was found to have a bald tyre which took the whole day to replace, during which time the animals had to wait in the vehicle due to the absence of any suitable facilities at the Port.
In the circumstances it is clear to the Council that the Port of Ramsgate lacks the facilities necessary to properly secure animal welfare in the event of an emergency such as those recounted above. It also highlights the complete failure of the contingency measures you were supposed to have in place to relieve the Council of the need to provide any facilities. Moreover, we have every reason to believe that emergencies such as this are going to occur in the future.
It is therefore the decision of the Council to suspend with immediate effect the movement of all live animals out of the Port of Ramsgate.
It is important to stress that this prohibition is a temporary measure in that it will continue only for so long as the Port of Ramsgate lacks proper loading and unloading facilities, a casualty bay for the inspection and, if necessary, emergency destruction of animals, suitable gates or pens for corralling animals and available supplies of food and water – or until like facilities are provided in very close proximity to the Port.
On the assumption that you are going to question the legality of the Council's decision, I consider the imposition of a temporary suspension due to the lack of necessary animal welfare facilities constitutes a proper exercise of the Council's statutory powers under Section 40 of Harbours Act 1964 and therefore does not contravene the Council's general duty to operate the Port of Ramsgate as an open port pursuant to Section 33 of the Harbours, Docks and Piers Clauses Act 1847.
Moreover, the Council takes the view that given what has happened and the very clear need for the provision of suitable animal welfare facilities at, or very close to, the Port of Ramsgate, a temporary suspension does not and will not, amount to arbitrary discrimination or a disguised restriction on trade."
The press release:
"Port suspends live animal exports
From Thursday, 13 September, the Port of Ramsgate has suspended any live animal movements through the Port with immediate effect.
This is a temporary suspension, but its lifting will depend on the construction of suitable facilities within the Port. Providing the facilities will depend on the cost of building and running such a facility, and also whether it is a priority of the council in comparison with other issues.
This move follows an incident where staff at the Port of Ramsgate took action overnight (12 September) to support animal health laws when a lorry unfit for transporting live animals failed inspection on its arrival. Despite every effort being made at the port to treat the animals humanely, 40 sheep had to be put down following advice from the RSPCA.
Just last week, leading members of Thanet District Council's Cabinet wrote to the environment Secretary calling for the facilities needed to prevent situations like this happening.
Leader of Thanet District Council, Cllr Clive Hart said that "Thanet District Council recognises that live exports are a lawful trade, but we are also conscious of our responsibilities regarding the welfare of animals passing through our port. We are also saddened to see animals arrive at our Port in this condition and it underlines the need to implement EU regulations strictly in order to avoid any suffering caused to the animals.
You may also want to read the related news article: Live animal export letter sent to Environment Secretary."
After the ban
Applying the law to the facts
Was the ban a justifiable breach of Art 35 TFEU?
Damages under the Francovich principle?
i) The ban was a breach of a fundamental provision of the TFEU. The protection of free trade and the free movement of goods between member states provided for by Art 35 is a core article in the Treaty.
ii) Art 35 is clear and so is the Regulation. The Regulation deals explicitly with the situation which arose in Ramsgate in Art 23. The responsibility for handling emergencies is placed on the competent authority. That was not TDC. There is clearly no requirement for lairage facilities at the port of departure.
iii) Member states have little or no discretion on the point at issue in this case nor does a local authority in a member state.
iv) TDC knew that the view it took about facilities at the port was contrary to the clear view of the competent authority in the UK which was expressed both before and after the ban.
v) TDC knew the law was against it and took a calculated risk.
vi) TDC acted in haste, without a full knowledge of the facts, without the competent authority's blessing and without taking independent or any written advice.
vii) TDC failed to give any consideration to less restrictive measures such as a ban on unloading at the port.
viii) TDC set out at the start of 2012 with a preconceived wish to use its powers to block the trade if it possibly could and was heavily influenced by the political motivations of the Council leaders who were vehemently opposed to the trade and by what it saw as moral pressures.
ix) TDC knew the ban would cause loss to a particular group of commercial operators, including the claimants, and took no account of their interests.
x) TDC's refusal to lift the ban even after DEFRA and T-Sol had reaffirmed their position that TDC's view was wrong about the need for port lairage facilities was wrong.
i) TDC submitted that the ban went no further than was necessary to achieve legitimate aims because the events of 12th September (and earlier in 2012) showed that emergency facilities might been needed at the port. Since they were not available, a ban on transport through the port was justifiable. I reject the premise of this submission. It is another way of stating the same argument about a risk of unloading at the port.
ii) TDC submitted the ban was expressly limited in time. I have rejected that as a fair characterisation.
iii) TDC relied on the lifting of the ban, described it as having been lifted promptly and suggested that if the AHVLA had made its position clearer sooner after 12th September then the ban would either not have been imposed or would have been lifted earlier. I do not accept that for the reasons already dealt with.
Causation
Conclusion