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Five legal cases related to area-based schemes, which ended up contested by way of a judicial review, had associated legal costs of well over £500,000 the Irish Farmers Journal can confirm.
The information has been obtained by Strangford MP Jim Shannon, working on behalf of his constituent, Barnwell Farms. The Greyabbey farm business recently won an active farmer case against DAERA (see page 7 of edition dated 14 November 2020).
Three of the other four cases were taken by the Ulster Farmers Union (UFU), with the first two being judicial reviews brought on behalf of its former president, Ian Marshall, and related to a pollution incident on his Markethill farm.
The third judicial review was a legal challenge by the UFU into a decision by DAERA to change its review of decisions process for area based schemes. That leaves an “active farmer” case taken by a Fermanagh business that was settled before getting to a substantive hearing.
“The costs of a judicial review are totally outrageous. These five cases have cost the taxpayer over £300,000, the UFU over £230,000 and my constituent, Barnwell Farms over £22,000,” Jim Shannon told the Irish Farmers Journal.
He questions whether any of these cases should have ended up in the High Court. In the Ian Marshall and Barnwell Farms cases, in both instances an independent panel at Stage 2 review had ruled in favour of the claimant. Despite that, the Department did not accept that advice, and stuck to its original decision. Ian Marshall had significant penalties applied to his Single Farm Payment. In the Barnwell Farms case, it was excluded from the Basic Payment Scheme from 2015 under active farmer rules.
Both won their case in the High Court, although Marshall had to go back a second time before the Department agreed to accept the view of the independent panel.
“As the DAERA Permanent Secretary, Dr Denis McMahon knows from my previous correspondence, I firmly believe that on receipt of the Barnwell Farms pre-action protocol letter in April 2019, he should not have proceeded with that case,” said Shannon.
However, he also maintains that McMahon’s predecessor, Noel Lavery, left him with a “poisoned chalice” by way of the second judicial review into the Marshall case, and the third legal action taken by the UFU on the review of decisions process.
That third judicial review challenged a decision by DAERA to remove the Stage 2 independent panel from the review of decisions process. The Department and the UFU settled outside court, agreeing that the independent panel would be retained, but the final decision in any dispute rested with DAERA.
However, Shannon maintains that DAERA was wrong to have made the initial change to the review of decisions process given that it was at a time when the Assembly was dissolved. In addition, farm lobby groups responding to a consultation in 2017 opposed the change.
On that basis, he questions why officials apparently allowed the matter to proceed to the steps of the High Court.
In the end, both sides agreed to cover their own legal costs. However, Shannon has now established that DAERA legal costs came to just over £10,000, but the UFU managed to run up a legal bill of around £108,000. He has called on McMahon to make an ex gratia payment to the UFU of £99,950 for what he believes was an “unlawful elimination of the independent panel” and a “wholly unnecessary challenge”.
Paid out
Across the three cases taken by the UFU, it paid out £371,000 of legal costs, compared to an equivalent figure of just under £71,000 for DAERA.
Despite the UFU effectively winning the Marshall cases, the Department only covered a proportion of opposition costs, disputing the amount the union spent on specialist barristers.
To date, the UFU has managed to recover around £140,000 of its costs from DAERA in the Marshall cases.
That leaves an overall deficit across all three judicial reviews of £231,000. It is understood that the UFU is pursuing an appeal of the costs awarded in the first judicial review case, where arrears of around £70,000 remain.
In the two other judicial reviews, Shannon has established that DAERA legal costs in the Fermanagh case were £3,663, and in that brought by Barnwell Farms, the costs came to £19,320. However, the total legal fees for the Calvert family (Barnwell Farms) came to £85,125. Of this, DAERA has reimbursed £62,664, leaving a deficit of around £22,000, which is still in dispute.
“The legal profession are the only winners in a judicial review,” said Shannon.
Question marks over historic cases
In most instances where DAERA has not accepted the view of the independent panel at Stage 2, claimants are understandably reluctant to pursue a legal battle by way of judicial review.
However, Jim Shannon believes that the Marshall and Barnwell Farms cases set a precedent, both for similar appeals going forward and potentially for historic cases.
Notably in the Assembly chamber earlier this month, Agriculture Minister Edwin Poots said that he would not be overturning future recommendations made by this panel.
“While Dr McMahon is not obliged to do so retrospectively I would hope, indeed expect, that he will sympathetically consider retrospective cases. Or at the very least, be prepared to promptly discuss an ‘historic cases’ policy with Minister Poots, the DAERA Assembly and us,” said Shannon.
Independent panel
In the meantime, it is not clear how many cases there are where the independent panel ruled in favour of the claimant only for DAERA to stick to its original decision, and whether these people want their case looked at again.
NIAPA
Welcoming the statement made by Minister Poots, Jim Carmichael from the NI Agricultural Producers’ Association (NIAPA) said that his organisation has always held the view that the decision of the independent panel should be final. “If someone feels hard done by and would like their case looked at again, they can get in touch with us and we will talk to them,” he said.
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