Agricultural law requires a broad spectrum of skills, but where is the next generation of lawyers going to come from? Grania Langdon-Down reports, and, in 'Finding the right path', looks at the ongoing 'right to roam' conflict between the public and landowners


While the recent outbreak of foot and mouth disease has not led to the burning pyres of animal carcasses that dominated the news in 2001, the damage it is causing the farming industry is raising many issues for practitioners specialising in agricultural litigation.



There is a bitter irony to the latest outbreak, which has so far been contained within a protection zone in Surrey, in that it appears it was spread from the very laboratory dedicated to researching the virus. And this has a further twist, in that case law resulting from an outbreak caused by the same laboratory more than 40 years ago may mean businesses affected by the current outbreak have little hope of suing those responsible.



William Neville is a partner in Bristol firm Burges Salmon’s agricultural department, which has 11 partners and more than 30 solicitors specialising in nine related practice areas. ‘We played a huge role in the 2001 outbreak and probably did virtually every leading case,’ he says.



He says it is basic English law that compensation for financial loss cannot be obtained unless there has also been damage to property. At this stage, he believes there would appear to be no more than a ‘faint possibility’ of general claims for financial losses, especially as the factual situation at the Pirbright laboratory remains unclear.



Stuart White, an insurance partner with City firm Reynolds Porter Chamberlain, agrees. He has been drawn into agricultural issues through the firm’s insurance client base. He points to the case of Weller v Foot and Mouth Disease Research Institute [1966] 1QB 569, where local auctioneers failed in their claim against the Pirbright laboratory because their claim was for pure economic loss only.



He says the owners of infected livestock in the current outbreak would be in the best position to claim for both their livestock and the losses consequential on the infection, as long as they can prove the causal link between the infection and the source, and that there was negligence.



‘But it is likely that businesses which lost money because of the subsequent animal movement restrictions – such as farmers, road haulage firms, abattoirs and meat processing firms – will be in the same position as the auctioneers were,’ he adds. ‘I would be really surprised if the courts moved away from the Weller proposition, so I think most claims for compensation will be stillborn.’



In the meantime, he has been contacted by an insurer keen to develop a ‘business interruption’ policy, which would be triggered by this kind of event.



However, while some practitioners take a negative view about the likely success of compensation claims, others are more positive. Clarke Willmott, which has offices in Bristol, Birmingham, Southampton and Taunton, is launching a High Court test case to seek direction on which types of businesses might be able to make claims.



Head of agriculture Tim Russ points to the case of Caparo Industries plc v Dickman [1990] 2 AC 605, which he says will be key to working out whether or not a duty of care is owed by any of the organisations carrying out work at the laboratory.



He says: ‘Weller is a first-instance decision of its time. It has clearly been superseded by a whole raft of judicial thinking and it shouldn’t daunt us too much.’



Peter Cusick, head of agricultural litigation at the newly merged Thring Townsend Lee & Pemberton, is acting for the National Farmers Union over the latest outbreak. The firm has five fee-earners working on the issues.



He also argues that ‘the world has moved on’ since the Weller case. ‘There are two areas to look at: those with direct losses – including those whose animals were infected and those whose animals were culled after coming into contact with confirmed cases – and those who suffered losses as a result of the movement ban, such as hauliers and abattoirs,’ he says. ‘We are working with our QC on identifying whether it is just, fair and reasonable for there to have been a duty of care owed to those various categories of potential claimants.’



The outbreak is particularly hard for the farming industry because it comes at a time when the outlook for agriculture is as ‘rosy’ as it has been for a decade, according to Simon Kirkup, who heads the agriculture, farming and estates team at Newcastle-based Dickinson Dees. ‘The big issue of the moment is the surge in commodity prices,’ he says. ‘Arable farmers are making a lot of money, although the situation is much harder for those with livestock.



‘Land prices have also increased dramatically over the past six to 12 months, which has meant we have had quite a lot of high-value transactional work over the summer.’



Brought up on a farm, Mr Kirkup has spent the past 17 years specialising in agricultural law. He says there are now so many laws, both domestic and European, affecting farmers and those with rural interests, that they need more and more specialist advice. ‘Fairly or unfairly, that means they have chosen not to go to their usual family solicitor, but to firms like ours which specialise in this area,’ he says.



There is certainly no shortage of work, says Mr Neville, who has specialised in the sector for 20 years. ‘A lot of people don’t think it is very exciting work, but it is pretty fundamental and it is a very big industry,’ he says. ‘Among the many issues recently has been the single payment scheme and the government’s failure to deliver on its promises.’



While several firms are building up their teams – including Thring Townsend, which recently acquired the London firm of Lee & Pemberton to add to its offices in Bath, Bristol and Swindon – there is a shortage of young lawyers seeking to specialise in agricultural law.



Nigel Davis, who set up his own eponymous agricultural law practice in Derbyshire in 2000, is chairman of the multi-disciplinary Agricultural Law Association. The association has set up a ‘next generation’ group to encourage young lawyers to specialise in this sector.



Mr Davis, whose firm is based in converted buildings on his livestock farm, now has 16 in his practice, including a trainee from Lithuania. ‘Fortunately, we have a comparatively young team,’ he says. ‘But it is difficult finding the next generation. Agriculture is seen as an area where there isn’t a great deal of money – it is not a sexy area of law. But what that ignores is that you cover virtually every discipline. Farmers get divorced, they buy, sell and develop property, they diversify their businesses. They have tax and environmental issues, as well as problems with European regulation.’



Solicitor Geoff Whittaker, consultant to the association, says: ‘Agricultural lawyers have to know what everyone else knows and then some. It is a bug that bites – you either don’t notice or it doesn’t let you go.’



Mr Kirkup points out that firms have to ‘grow their own young lawyers because there isn’t an enormous pool of newly qualified lawyers to choose from. If we didn’t do that, we would struggle’.



What is clear is that lawyers specialising in this area need to be up-to-date with European legislation. ‘Europe is pivotal to agricultural law,’ says Mr Russ.



Richard Barker, now a consultant with Ipswich firm Barker Gotelee, has built up a niche practice specialising in agriculture and Europe. One development he is concentrating on is the new set of competition guidelines relating to the advertising of agricultural products.



He also stepped in to act pro bono for Suffolk farmer Mark Horvath, who took Margaret Beckett, then Secretary of State at the Department for Environment, Food and Rural Affairs, to judicial review over the way she had implemented the single payment scheme for farmers, arguing it discriminated against English farmers because the rules were stricter than those imposed on Welsh, Scottish or Northern Irish farmers. Questions raised by the case have been referred to the European Court of Justice.



While the case was initially sparked by the maintenance of footpaths, Mr Barker says he took it on because it is of ‘fundamental importance – it goes to the heart of the way regional government operates in this country’.



Given the complexity and range of issues likely to confront agricultural lawyers, it is not surprising that practitioners need a wide-ranging knowledge of the law. However, Mr Davis takes the ‘almost radical view’ that common sense is more important than a first-class honours degree. ‘You need strong academic abilities, but in most instances your clients are looking for a practical solution to a practical problem – it is not about tanking off to court on a technical legal point.’



And while those coming into the sector do not need to conform to a green wellie-wearing, ‘huntin’, shootin’, fishin’’ stereotype, an interest in the countryside and rural pursuits is clearly important. About a quarter of Mr Kirkup’s team fish and shoot. ‘It is not vital – though you do need a genuine interest in the countryside,’ he says. ‘Farmers will know if you are trying to pull the wool over their eyes.’



Grania Langdon-Down is a freelance journalist