Farms court disaster

AS THE FOOT-AND-MOUTH EPIDEMIC INTENSIFIES, GRANIA LANGDON-DOWN QUIZZES lawyers ON THE LIKELY LEGAL COST OF THIS RURAL CATASTROPHE AND EXPLORES FARMERS AVENUES for COMPENSATION As...AS THE FOOT-AND-MOUTH EPIDEMIC INTENSIFIES, GRANIA LANGDON-DOWN QUIZZES lawyers ON THE LIKELY LEGAL COST OF THIS RURAL CATASTROPHE AND EXPLORES FARMERS AVENUES for COMPENSATION As the smoking pyres of slaughtered animals mount around the country, the legal fall-out from the foot- and-mouth epidemic is likely to be far-reaching.

However, solicitors working for the farming communities say many of those affected are too swamped by the immediate crisis to have yet considered their legal options.Andrew Tobey, partner in Exeter solicitors Bond Pearce, one of nine firms on the National Farmers Union (NFU) legal panel, says: A lot of potential legal issues havent yet bubbled to the surface, and wont until the firefighting has died down and people can assess their real financial losses.For Douglas Horner, of Brachers in Maidstone, Kent, also on the NFU panel, it is almost ghoulish to be talking about going to law when the prospects for farmers are so terrible.

It will take a little time before the requirements for legal advice and action come to the fore.

All sorts of people are suffering consequential losses and there are going to be questions about whether or not these should have been incurred.Some farmers in Cumbria, the worst affected area, have already turned to their lawyers.

The legal ramifications of the disease will also be felt in France and the Netherlands, where the authorities have reportedly decided to vaccinate animals.

But in Britain, farmers are acutely aware that vaccination removes animals disease-free status, meaning they cannot be sold for five years.William Neville, partner in Burges Salmon in Bristol, is working on an application for a judicial review of the governments planned cull of unaffected animals.

He is also immersed in claims by farmers who want compensation for losses from what they argue was the unlawful and unjustified slaughter of their animals.William Green, agricultural specialist with Burnetts in Carlisle, says: The tension in the atmosphere is palpable, and made worse in this part of the world because the only other main industry is tourism.

We have had some queries about the outbreak, including one about the possibility of waterways being contaminated by slaughtered livestock, but in other areas work is tailing off as auctions and spring grass lettings are cancelled.

More and more matters are being put on hold until we see what is going to happen.John Woosnam is a partner in Napthen Houghton Craven in Preston, Lancashire, which is on the NFU panel covering Cumbria.

He says the majority of their queries centre on the valuation of livestock set to be slaughtered.

The valuation is based on the value of the animal before it was diagnosed with the disease.

One of the problems is that when the crisis is over, there is going to be a shortage of all animals and particularly of the rare breeds many farmers have in Cumbria.

How do you value an animal which you cannot replace?For Mr Tobey, the main area of contention is going to be compensation.

At the moment, the Ministry of Agriculture is simply offering compensation for animals slaughtered.

But the question for farmers then is: My source of income is gone, how do I earn any money? Some farmers have spent years building up breeding-lines, then there are issues such as wasted milk from condemned herds, loss of sales, lower meat prices.

Who is going to pay for those losses? There will also be the question of compensation for farmers on adjoining properties, whose livelihoods have been affected even though their animals did not get the disease, according to Mr Tobey.

He adds: We have had some queries from farmers asking whether they would have a case against other farmers if those farmers failed to take adequate precautions to stop the spread of the disease.For Richard Jones, partner with Knight & Sons in Newcastle-under-Lyme in Staffordshire, also one of the NFU panel firms, the most unusual case it is investigating involves indirect consequences of the outbreak.A farmer sent his cattle to an abattoir to be killed and dressed, but the meat was later said to be so contaminated by the smell of the disinfectant that the lorry had to go through on its way to the abattoir, the meat could not be sold.

The meat was worth 20,000.

My gut feeling is he will have a potential claim against the abattoir but it is by no means cut and dried, he says.Professor Chris Rodgers, consultant with Margraves in Llandrindod Wells, Powys, and professor of law at the University of Wales, says: We have had few immediate queries but long term, there is likely to be a further downshift in agricultural rents.

A lot of marginal livestock farmers in Wales and the north of England could well be pushed out of business, and then we are likely to see an intensification of the amalgamations of holdings into larger units.The epidemic has also had an impact on the work of in-house legal departments, mostly of the NFU, but also of organisations hit by movement restrictions.

At the NFUs London headquarters, chief legal adviser Richard Vidal leads a team of three solicitors and a legal researcher.

We are one short but we are coping with all the additional pressures at the moment, he says.

In the first few weeks of the outbreak, the main issues his team dealt with concerned rights of way, access to farms by feed lorries or for collections of milk, grain and other produce, and whether or not contracts were being frustrated.Since then, queries have been about obtaining requisite licences to take animals to abattoirs to keep the food chain going, and the fair allocation of risk if a slaughtering plant is then closed down by an infected animal being sent to it.

Should the farmer who sent it be responsible for the losses of closure, which could run into millions? Mr Vidal adds: Our view is the abattoirs are acting unreasonably if they impose strict liability on the suppliers, if they have exercised due diligence in inspecting animals for signs of disease before sending them off.

We have written letters to some abattoirs to explain the difficulties one alternative is to get the government to accept some responsibility for the additional costs of any plant closures.More recently, Mr Vidal, who is joining MAFF after Easter as a legal adviser following 14 years with the NFU, has been looking at the general duty of care owed to farmers and other rural businesses as a result of delays in diagnosing the disease and delays in slaughtering and disposing of the carcasses.There have also been rumours about judicial review challenges over extending the cull to healthy animals and over whether it is appropriate to introduce a vaccination programme at this stage.

But judicial reviews may not be an appropriate challenge where the court doesnt look at the merits of the decision, but whether there is irrationality or procedural irregularity.

The minister is given extremely wide powers to eradicate the disease and the courts will be reluctant to interfere with decisions reached by the minister on advice from his chief vet, so long as he has properly considered the options.My personal view is the time to consider the rights and wrongs of decisions taken in the heat of the moment on best veterinary advice is through the parliamentary commissioner once the crisis is over.

Recommendations by the commissioner for ministries to make ex gratia payments have been heeded in the past, for instance in 1982 after the salmonella in eggs crisis.

Charles Crabtree, a solicitor with the National Trusts legal department, says the trust has been significantly affected by the outbreak, with many properties closed.

Most immediate problems are being dealt with by the trusts agricultural specialists, but Mr Crabtree has advised on a private contractual matter when the trust stopped a contractor using a right of way over its land.

We managed to negotiate a solution because everyone understands this wretched disease must be brought under control.

David Essery, general counsel to the British Tourist Authority, says the authority has received a large number of calls from concerned travellers, particularly from Europe and overwhelmingly from Germany.

We cannot give third-party advice but, as it is a crisis, we have given general guidance, for instance on cancellations.As Mr Tobey says: There are likely to be many legal claims some way up the line but they arent likely to come to the surface until the immediate fire has been doused.

Grania Langdon-Down is a freelance journalist