The Court of Appeal has dismissed Carlow Foods Limited’s appeal over a refusal to cross-examine two veterinary inspectors in its judicial review challenge to the Minister for Agriculture, Food and the Marine’s decisions during an avian influenza response in December 2020.
The appeal concerned a procedural application, not the merits of the company’s challenge to the cull. The court upheld the High Court’s refusal to order the inspectors’ attendance for questioning. It said the central disputes were about what the law and departmental contingency plan required, rather than conflicting evidence about what had happened. Those issues remain for the substantive judicial review proceedings.
The dispute arose after turkeys from a third-party farmer were brought directly to Carlow Foods’ adjoining slaughterhouse at Kilkea, Fenagh, County Carlow, on 9 December 2020. Samples from those birds tested positive for highly pathogenic avian influenza. The Minister issued notices restricting the premises and, by letter on 16 December, directed the killing and disposal of the company’s poultry flock. The cull took place on 21 and 22 December. Samples from Carlow Foods’ chickens and turkeys were reported negative, according to the judgment.
In the judicial review, Carlow Foods argues that the cull decisions were unreasonable or disproportionate and that the Minister failed to comply with legal requirements for risk assessment and epidemiological inquiry. The Minister’s evidence was that officials assessed the risks, including the proximity of the flocks, the integrated nature of the production site and the potential for further spread. The company’s challenge also raises whether assessments had to be documented in writing and whether the response complied with the Department’s contingency plan. The Court of Appeal did not decide those issues.
The cross-examination application followed discovery of a risk assessment report prepared in March 2021, which the Minister’s witness said accurately reflected an earlier assessment conducted through discussions. The witness also said there had been no formal written risk assessment at the time and no epidemiological inquiry into the company’s flock before the depopulation decision. The Court of Appeal said those matters were common ground; whether the process was legally sufficient was a matter for legal argument.
Delivering judgment on 24 September 2024, Mr Justice Allen said the company had not identified a material conflict of fact between the inspectors’ evidence and other evidence that needed to be resolved by questioning them. The court dismissed the appeal and said the company should pay the Minister’s appeal costs. It allowed 14 days for the company to submit a short argument for a different costs order, with a further 14 days for the Minister to reply.