High Court of Ireland Decisions

1. In this judgment I will assess the damages to which the eighth named Plaintiff, James O'Regan (Mr. O'Regan), is entitled as a result of the mistake of law of the first named Defendant (the Minister) as found by the Supreme Court, in accordance with the Order of that Court dated 7th March, 1997.

2. Mr. O'Regan is a married man, he and his wife, Bridget O'Regan (Mrs. O'Regan) having married in January 1982. They have four children ranging in age from 16½ years down to 8 years.

3. At the time of their marriage in 1982, Mr. O'Regan and Mrs. O'Regan were both wage earners. At the time an elderly aunt of Mr. O'Regan owned a 112 acre farm at Behagh, Dunmanway, Co. Cork. In 1982 she decided to transfer the farm to Mr. O'Regan and his brother, Donal O'Regan. In the summer of 1982 Mr. O'Regan gave up his employment to work on the farm and at the end of that year Mrs. O'Regan also gave up her employment. The Land Commission refused to consent to the sub-division of the farm, and as a result, around June 1983 his aunt decided to transfer the farm to Mr. O'Regan solely. Since 1983 Mr. O'Regan and Mrs. O'Regan have worked the farm at Dunmanway as a team, Mr. O'Regan doing the physical work and Mrs. O'Regan dealing with all management and administrative matters. The farm was in poor condition when it was transferred to Mr. O'Regan, as it had been let for a number of years. In the first year Mr. O'Regan was involved in dry-stock, with some tillage. However, the O'Regans realised that their best prospect of making a living out of farming was in dairying.

4. In August 1982 Mr. O'Regan and his brother had submitted an application form under the Farm Modernisation Scheme to ACOT. The application was processed and a plan was drawn up in 1983 in the name of Mr. O'Regan and his brother, although at that stage Mr. O'Regan's brother was no longer involved in the farming enterprise. Under the 1983 plan the farm was classified in the "other (high)" category. It was envisaged that Mr. O'Regan would commence dairying in 1985 and in that year he would be milking 10 cows and that by the end of plan in 1988 he would be milking 15 cows. The targeted production for end of plan under the 1983 plan was 11,250 gallons, based on 15 cows each yielding 750 gallons. The 1983 plan envisaged improvements being carried out to the farm over the duration of the plan in the nature of reclamation and the installation of a silage base, cubical house, slurry pit, cattle crush, water supply and farm roadway.

5. Mr. O'Regan did not adhere to the time-scale envisaged in the 1983 plan for the commencement of dairying. In fact, he started milking in February 1984. The superlevy regime came into operation two months later. As Mr. O'Regan had not made any deliveries in the base year, 1983, he was not allocated any quota at that stage. Nonetheless, in the year 1983 he delivered 7,445 gallons to his co-operative, Ballyclough Co-operative. Since September 1990, Ballyclough Co-operative has been part of Dairygold Co-operative.

6. Mr. O'Regan continued to make deliveries to Ballyclough Co-operative in 1985. Towards the end of November 1985 the O'Regans became concerned about their position under the superlevy regime and, as a result of the information contained in a letter dated 22nd November, 1985 from Ballyclough Co-operative, they consulted their ACOT adviser. Their adviser was Thomas Buckley, who had drawn up the 1983 plan. On 4th December, 1985 Mr. Buckley visited the O'Regans at the farm and completed a single page (FM 3B) of the Farm Modernisation Scheme documentation which had been used while the Scheme was in force, and he signed and dated it and stamped it with the official ACOT date stamp. This document showed Mr. O'Regan milking 35 cows in 1988, the end year of his plan. It was headed "Revised Plan for F. M. Sch.". I will refer to this document as "the 1985 plan", for convenience.

7. Mr. O'Regan came within the new entrant category provided for in Article 3 of Council Regulation EEC/857/84 and in due course he received an allocation of new entrant quota amounting to 4,207 gallons in 1986. In succeeding years Mr. O'Regan supplemented his quota by temporary expedients, such as leasing, and he built up his permanent quota to its present level of 22,906 gallons. I will consider the build up of the O'Regan quota in greater depth later. Throughout the 1980's and until about two years ago, the O'Regans were farming in conditions of extreme difficulty. Dr. Nicholas Bielenberg, who gave expert evidence on behalf of Mr. O'Regan, stated that the fact that they are still in farming is in itself a major triumph. In the light of the evidence, I share that view.

8. Because of the limitations which the non-availability of milk quota imposed on the O'Regans in relation to production of milk, they were constrained to carry on an alternative enterprise on so much of the farm as they were not utilising for milk production. Alongside the milk production enterprise, they were involved in suckler cows and dry-stock. I am satisfied that they exploited the spare capacity to the extent that might be reasonably expected given their circumstances.

9. In 1993, in tragic circumstances, the deaths of her brother and her father within a space of ten months, Mrs. O'Regan inherited land at Ballywilliam, Kinsale, Co. Cork. This was a non-residential holding comprising 28 acres with no milk quota attached. By 1996, despite Trojan-like efforts, the O'Regans had only succeeded in accumulating 9,490 gallons of permanent quota. In desperation, having exhausted all other avenues, Mrs. O'Regan decided to sell the land at Kinsale and buy land with quota attached. Accordingly, in 1996 she sold 21 acres of the land at Kinsale for £113,000. Using the proceeds of sale, and with the aid of a bank advance, the O'Regans purchased in their joint names a farm comprising 21.5 acres at Rosscarbery, Co. Cork, to which there was attached 12,827 gallons of quota for £121,000. Since its acquisition, the Rosscarbery holding, which is some 20 miles from the home farm at Dunmanway, has been used for suckler cows and the dairying enterprise has continued to be carried on at the home farm.

10. Due to their very limited financial resources the O'Regans were not able to implement the improvements envisaged in the 1983 plan within the time-frame envisaged in that plan. They did not avail of any grants during the currency of the plan. However, the O'Regans have improved and developed the home farm over the years and have received grant aid under various schemes administered under the aegis of the Minister's department. Those developments and improvements have been partially funded by means of bank borrowings. The on-going running of the farm, including stocking the farm, has also been partially funded by bank borrowings. The current state of the O'Regans' indebtedness to their bank is in excess of £65,000.

11. The foregoing outline sets out the overall context in which this assessment of damages is being made.

12. The first stage in this assessment is to apply the formula which, in my judgment delivered in these proceedings on 25th March, 1999, I determined the Minister would have used to allocate additional quota in 1984/85 to farmers in the investment category had he not committed the error of law found by the Supreme Court. Two issues arose during the hearing of Mr. O'Regan's claim in relation to the application of the formula to his circumstances.

13. The first issue is whether, had he been framing schemes in the summer or early autumn of 1984 for the allocation of additional quota to the two discretionary special categories covered by Article 3 of the Council Regulation, as a matter of probability, the Minister would have made provision under which farmers who fell into both categories would be entitled to the benefit of the additional quota referable to both categories or, alternatively, provision under which such farmers would be precluded from benefiting under both schemes and would be limited to claiming entitlement under the scheme which gave them the highest allocation. During the course of the hearing on 16th June, 1999 I ruled on this issue and I held that the provision the Minister would have made in 1984 would have entitled eligible farmers to benefit under both schemes. In consequence of that ruling, the damages to which Mr. O'Regan is entitled fall to be assessed on the application of the formula to him without regard to the fact that new entrant quota was allocated to him in 1986.

14. The second issue is whether, in the application of the formula, the targeted milk production for the end of plan should be that provided for in the 1983 plan or that provided for in the 1985 plan. If the formula is applied by reference to the 1983 plan, the amount of additional quota to which Mr. O'Regan is entitled is 5,625 gallons, whereas, if it is applied by reference to the 1985 plan, the amount is 13,125 gallons.

15. In response to a letter from the O'Regans in November 1985, John Greaney of Ballyclough Co-operative wrote to Mr. O'Regan on 22nd November, 1985 stating that, while the position of new entrants for the quota year 1985/86 had not been finalised, the indications were that 3,700 gallons of new entrant quota would be allocated to Mr. O'Regan. In the letter, it was also pointed out that, while new entrants were not getting any special priority for flexi-milk, Mr. O'Regan might fall into one or other of the special categories for flexi-milk that year, the categories then being set out. In relation to category 1, which is the only category under which Mr. O'Regan could have been eligible, Mr. Greaney queried whether he was following a development or improvement plan under the Farm Modernisation Scheme and, if so, suggested that he forward a copy of the farm plan which was available from his ACOT adviser. On receipt of this letter, Mr. O'Regan contacted Mr. Buckley, the ACOT adviser, and this led to Mr. Buckley's visit to the farm at Behagh on 4th December, 1985.

16. Mr. Buckley testified that the reason the document he signed on 4th December, 1985 was filled out was to get the O'Regans the greatest amount of flexi-milk possible. The document could not have been a farm plan under the Farm Modernisation Scheme because the scheme had ceased at that stage. In any event, the document was incomplete in that it did not show the category to which Mr. O'Regan belonged or the labour units at the end of plan. To complete these particulars Mr. Buckley would have had to complete forms FM2 and FM1B, in addition to the form FM3B, which was the form he signed and dated 4th December, 1985. Subsequently, Mr. O'Regan submitted an application for flexi milk to Ballyclough Co-operative, which was dated 24th January, 1986. With that application he submitted the 1985 plan and also a certificate dated 21st January, 1986 signed by Mr. Buckley. The certificate was on the letter heading of ACOT and was a pro-forma certificate, the purpose of which was to certify a named producer as being eligible for flexi milk allocation under one of the categories of producers set out. Each category related to producers with quotas of less than 25,000 gallons. Category (a) related to producers following a development or improvement plan under the Farm Modernisation Scheme. Category (b) related to producers following a development plan drawn up in consultation with ACOT. Category (c) related to producers who were developing their dairy enterprise. Mr. Buckley ticked Category (c) as being applicable in the case of Mr. O'Regan. Mr. Buckley testified that the reason he ticked Category (c) was that the plan which was submitted to Ballyclough Co-operative was not the Farm Modernisation Scheme plan which was on the file. The document he submitted was a document which he wrote out which he hoped would get the O'Regans extra flexi milk.

17. Mr. O'Regan acknowledged that the only reason Mr. Buckley was required to draw up another farm plan in December 1985 was to support his application for flexi milk. Mrs. O'Regan, while acknowledging that she knew the letter from Ballyclough referred to flexi milk, testified that she assumed that "down along the line" they were going to get permanent quota out of the 1985 plan.

18. Evidence adduced by the Minister disclosed the following matters in relation to the departmental regulations governing the administration of the Farm Modernisation Scheme:-

19. It is absolutely clear on the evidence that Mr. Buckley had no authority after 30th September, 1985 to draw up a new development plan or a supplementary or revised plan or an investment proposal for a farmer in the "other (high)" category. This was not just a matter of internal regulation within the Minister's department and within ACOT. The Farm Modernisation Scheme had come to an end. Its termination had been effectively forecast and Mr. Buckley was aware that its benefits had ceased.

20. On the evidence, I am satisfied that on 4th December, 1985, Mr. Buckley did not purport to draw or hold himself out as drawing a revised plan which would operate as and carry the benefits of a plan or investment proposal under the Farm Modernisation Scheme. The document he drew up was merely a device to secure the optimum amount of flexi milk for the O'Regans from Ballyclough Co-operative. It is true that the heading of the document suggested that it was a revised plan under the Farm Modernisation Scheme and carrying the ACOT stamp, as it did, it had a semblance of authenticity. However, I believe that these features were intended to impress Ballyclough Co-operative, not the O'Regans.

21. I find on the facts that Mr. Buckley did not represent the 1985 Plan as being a genuine revision of the 1983 Plan. Moreover, having regard to the evidence, in my view, the O'Regans could not have reasonably assumed at the time that a genuine revision of the 1983 Plan was being put in place. I accept Mrs. O'Regan's evidence that she hoped that the document would in due course lead to permanent quota. Even allowing for the fact that Mrs. O'Regan may not have understood the intricacies of the superlevy regime in December 1985, nonetheless, I do not think that Mr. Buckley's actions could have reasonably given rise to such hopes.

22. Having regard to the factual situation, I think it highly improbable that had the Minister made provision for the investment category in 1984/85, he would have entertained a submission that quota should be allocated to Mr. O'Regan by reference to the targeted production in the 1985 plan. However, sympathetic the Minister and his officials might have been to Mr. O'Regan, they could not have ignored the fact that the 1985 plan flagrantly contravened the Department's own regulations and, in truth, was not a genuine plan at all.

23. There was considerable debate in the course of the hearing as to whether a plan or investment proposal generated after 1st March, 1984 could bring a producer within the ambit of sub-article (1) of Article 3 of the Council Regulation. I do not find it necessary to express a definitive view on that point because I have come to the conclusion, on the facts, that the 1985 Plan was not a genuine plan or revision of a plan or investment proposal.

24. Accordingly, the formula must be applied by reference to the 1983 Plan and the amount of additional quota to which Mr. O'Regan is entitled on the basis of the formula is 5,625 gallons.

25. The heads of claim on this claim largely overlap with the heads of claim I considered in the judgment which I delivered on 3rd June, 1999 in relation to the claim of the second named Defendant, Mr. Finlay. They are as follows:-

26. I do not propose reiterating in this judgment matters which I dealt with in the Finlay judgment.

27. It is common case that even if the O'Regans had the additional 5,625 gallons of quota in the quota years 1984/85 and 1985/86, their level of production would not have been any greater than the level they achieved in fact. Therefore, the analysis of the additional production forgone by reason of the absence of that quota commences in the quota year 1986/87.

28. In determining the additional production which Mr. O'Regan would have achieved in the quota year 1986/87 and in subsequent quota years had the additional quota of 5,625 gallons been allocated to him, in my view, the most telling evidence is the evidence of the production Mr. O'Regan actually achieved in those years and the manner in which he built up his quota to permit that level of production. He started out from a very low base: an allocation of 4,207 gallons of new entrant quota. Subsequently, he was the beneficiary of three allocations from the national reserve, which aggregated 1,090 gallons, under provisions which benefited the generality of farmers. He was also the beneficiary of two allocations by the Milk Quota Appeals Tribunal: 1,982 gallons in the quota year 1992/93 and 1,000 gallons in the quota year 1993/94. It is acknowledged that these allocations would not have been made if the lost additional quota of 5,625 gallons had been allocated to Mr. O'Regan and that this factor must be taken into account in assessing the lost additional production. In total, Mr. O'Regan was allocated 8,279 gallons from the national reserve over the years and, in common with the generality of producers, he suffered deductions from that quantity over the years.

29. The increase in Mr. O'Regan's permanent quota from 4,207 gallons in the quota year 1986/87 to 22,906 gallons in the quota year 1998/99 is primarily attributable to purchases of quota by Mr. O'Regan. In the four quota years between 1993/94 and 1996/97 he acquired the maximum amounts of restructured quota available under the relevant restructuring schemes in the Dairygold Co-operative area and these acquisitions aggregated 2,260 gallons. It is noteworthy that in the second year in which the restructuring scheme was in force, 1989/90, he applied to participate but he was unsuccessful in the ballot necessitated by the very small pool available for distribution under the restructuring scheme in that year. The major fillip to the increase in Mr. O'Regan's milk production was the acquisition of the 12,827 gallons of quota with the Rosscarbery lands.

30. Prior to the purchase of the quota attached to the Rosscarbery lands, Mr. O'Regan leased quota. In 1986/87 and the eight subsequent years, Mr. O'Regan leased in excess of 4,000 gallons of quota with land at a keen rent. In addition, in the same period, he participated in the temporary leasing schemes in force in three quota years. In the year following the loss of the lease of quota with land, 1995/96, he leased 6,214 gallons under the temporary leasing scheme then in force.

31. Having regard to the O'Regans' record in acquiring quota in difficult circumstances over the years, I have no difficulty in accepting Mrs. O'Regan's evidence that had the additional quota of 5,625 gallons been available to them, they would have acquired by purchase more quota; as she put it, as much as they could handle. The historical record shows that the O'Regans were very careful in avoiding a superlevy fine and did not rely on flexi-milk to any great extent. I think it is improbable that, even if they had the additional allocation of 5,625 gallons, in general the pattern would have been any different. Therefore, on the evidence, I consider that the additional production they would have achieved in any year would have been commensurate with the amount of the additional quota available in that year as a result of the application of the formula, together with the amount of any additional permanent quota they had acquired under the restructuring schemes. On the evidence I do not think it probable that they would have leased any more quota than they historically leased.

32. In determining how much, if any, additional quota they would have acquired under the restructuring schemes, I must have regard to the following constraints which would have inhibited the O'Regans in sating their hunger for quota:-

33. I have come to the conclusion that it is probable that the O'Regans would have acquired 2,000 gallons of quota under the restructuring scheme in 1988/89, the first year in which there was a restructuring scheme, and a further 2,000 gallons in 1991/92. 1990/91 would have been the only other year in which they did not apply, but might have applied, for restructured quota. However, historically, the maximum amount available to small producers under the scheme in that year was 1,000 gallons and the price per gallon (£1.60) was relatively high. Having regard to all of the relevant factors I think it is improbable that the O'Regans would have acquired any additional restructured quota in that year.

34. The probable additional quota which would have been available to Mr. O'Regan in each year from and including 1986/87 to and including 1998/99, if the Minister had not made the mistake of law, and his additional production derived therefrom is tabulated in Appendix A attached to this judgment in column (4).

35. In quantifying the loss attributable to the lost additional production in this case I am adopting the same approach as I adopted in the Finlay judgment.

36. In Appendix A the additional gross income which the additional production would have yielded in each year is tabulated.

37. In Appendix B the various amounts which must be offset against the additional gross income in each relevant year are tabulated. In relation to those amounts I would make the following comments:-

38. The net income before tax which the additional production would have yielded in each year is tabulated in Appendix B in column (6) and it represents the net loss before tax by reason of the additional quota not being available to Mr. O'Regan. The aggregate loss over the years in question is £17,828.

39. The same methodology is to be used in calculating the interest which Mr. O'Regan would have saved on his indebtedness to his bank, if he had been in receipt of the additional income from the additional production attributable to the additional quota, as was used in the Finlay case. The calculation will have to be redone on the basis of the figures set out in column (6) of the table in Appendix B.

40. Because of the difficulty of acquiring restructured quota in the circumstances which prevail in the Dairygold Co-operative catchment area, the Minister has indicated that he is prepared to allocate to Mr. O'Regan in the current quota year an amount of quota equivalent to the Court's finding as to the additional quota which Mr. O'Regan would now enjoy had the Minister not made the mistake of law. On that basis the Minister must allocate 6,177 gallons of quota to Mr. O'Regan in the current year. In addition, the Minister has indicated that he will remove any restrictions which affect the allocations made to Mr. O'Regan out of the national reserve in 1992/93 and in 1993/94. Subject to the Minister's commitment being fulfilled, Mr. O'Regan will incur not future loss.

41. It is part of Mr. O'Regan's case that he incurred a loss for which he is entitled to be compensated in connection with the sale of the Kinsale land and the acquisition of the Rosscarbery land, on the basis that, by reason of the non-availability of the additional quota because of the Minister's mistake of law, the Kinsale land had to be sold to fund the acquisition of land to which there was quota attached. Two elements of loss were advanced on behalf of the Plaintiff. First, it was contended that, because of its propinquity of the Kinsale land to the town of Kinsale, since 1996 the Kinsale land has appreciated in value more than the Rosscarbery land. Secondly, it was contended that the transaction costs in relation to the sale and acquisition are recoverable losses.

42. The Minister countered this claim on a number of grounds. First, it was contended that there is no causal link between the alleged losses and the Minister's wrong. Secondly, it was denied that the Kinsale land is worth significantly more today than the Rosscarbery land. Thirdly, it was contended that, if there has been a loss, it is not the loss of the Plaintiff, Mr. O'Regan, who never had an interest in the Kinsale land, the rental income from which was Mrs. O'Regan's sole property and was not included in the profits of the farming enterprise at Dunmanway. Fourthly, the Minister contended that, in any event, the damage was not foreseeable and is too remote.

43. As to whether the non-availability of the additional quota caused the sale of the Kinsale land, the evidence is clear. Mrs. O'Regan testified that, if they were entitled to and had been allocated additional quota by reference to the 1985 plan, which would have given them 13,125 extra gallons, she would not have had to sell the Kinsale land. On the other hand, she acknowledged that if they were only entitled to and had been allocated additional quota on the basis of the 1983 plan, she would probably have had to sell the Kinsale land because an additional allocation of 5,625 gallons would not have been sufficient to make the Dunmanway dairy enterprise viable. Historically, by 1995/96 the O'Regans had only succeeded in accumulating 9,490 gallons of permanent quota. The additional permanent quota which I have found that, as a matter of probability, they would have held in 1995/96 if the additional 5,625 gallons had been allocated to them from the outset, 6,177 gallons, would have brought their permanent quota to only 15,667 gallons. Viewed objectively, Mrs. O'Regan's subjective assessment of the situation which would then have prevailed appears to be correct: to develop and maintain a viable dairy enterprise on the Dunmanway farm the O'Regans would have required more than 15,667 gallons of permanent quota. Accordingly, on the basis of my finding that Mr. O'Regan's only entitlement to additional quota was by reference to the 1983 Plan, this part of the claim fails on the causation ground.

44. If I had any misgivings as to the correctness of the conclusion I have come to in relation to the 1985 plan, I would analyse in depth and set out my views on the other grounds advanced by the Minister, but as I do not, I consider it unnecessary to do so. However, I consider it necessary to comment that I cannot see how, as a matter of principle, damage, in the form of diminution of assets, alleged to have been incurred as a result of a decision made by the O'Regans twelve years after the Minister's breach of duty to substitute one asset (the Rosscarbery land) for another asset which became available to them nine years after the Minister's breach of duty (the Kinsale land), could be regarded as reasonably foreseeable at the date of the Minister's wrong so as to come within the scope of the protection afforded by the law. The proposition advanced on behalf of Mr. O'Regan in relation to capital loss seems to me to be analogous to the proposition which was rejected by Geoghegan J. in Doran -v- Delaney (1999) 1 I.L.R.M. 223 at page 236 on the ground of remoteness. On the same ground, in my view, the proposition advanced on behalf of Mr. O'Regan is not tenable.

45. Having heard both Mrs. O'Regan and Mr. O'Regan, I have no doubt that they had a life of extreme hardship throughout the mid to late 1980's and into the early 1990's, which resulted from their very limited income. I have no doubt that an additional 5,625 gallons of quota from the start of the superlevy regime would have alleviated their financial position and would have reduced, if not eliminated, the stress and anxiety and unhappiness in the household which their very difficult financial circumstances gave rise to. As I have already indicated, Mrs. O'Regan is a superb manager. It was only Mr. O'Regan's hard physical work and Mrs. O'Regan's ingenuity and resilience which kept them from going under. The additional 5,625 gallons, which represented 134% of their new entrant quota, under Mrs. O'Regan's management would, I believe, have enabled them to avoid some of the worst consequences of their impecuniosity.

46. A factor which adds weight to the claim to general damages in this case is the effect of Mr. O'Regan's financial difficulties on his relationship with his aunt, who had transferred the farm to him, and how that impacted on the whole family. On the transfer of the farm at Dunmanway, Mr. O'Regan had agreed to give financial assistance to his aunt. However, he was unable to do so because of his financial circumstances which were at least partly attributable to the Minister's wrong. His aunt did not understand his difficulties, unfortunately, and this resulted in solicitors letters and even a threat that Mr. O'Regan would be imprisoned. Although the parties were reconciled before Mr. O'Regan's aunt died, I have no doubt that this factor imposed an additional burden of upset and distress on Mr. O'Regan and on his family, in addition to all the usual consequences of insufficient financial resources which they had to bear: living from day to day in impoverished conditions and worrying about the future because of the burden of debt which had to be serviced.

47. On the basis of the evidence, I think the appropriate level of general damages is £15,000.

48. The Order in favour of Mr. O'Regan will recite the Minister's undertaking to allocate 6,177 gallons of quota to Mr. O'Regan in the current quota year and to remove the restrictions attached to the quota allocated to him from the national reserve in the years 1992/93 and 1993/94. In addition, there will be a monetary award in favour of Mr. O'Regan, the amount of which will be the aggregate of the following sums:-