In short, the Court of Appeal has found that the Government’s long-standing interpretation of the legislation is correct, and the consequent policy is lawful.

Avian Influenza is a virulent disease which can rip through populations of poultry with great speed, meaning the losses where many birds are kept on the same premises or in the same barn can be very large and progress very quickly. The claimant farmers had all had significant numbers of birds die and significant numbers culled in connection with the disease. Consistently with its long standing policy and interpretation of the legislation (Paragraph 5 of Schedule 3 of the Animal Health Act 1981), the claimant farmers had been paid compensation by the government for birds that were healthy at the time they were culled, but not for those which were healthy at the time the decision to slaughter them was taken but which became diseased before they were culled.

The poultry farmers brought a judicial review challenging the decisions on compensation made in respect of their losses, and also challenging the government’s policy on compensation in this context as a whole as being unlawful. Their essential argument was that the legislation means that compensation should be payable for birds which are healthy when the decision to slaughter them is taken but which then become diseased by the time they are culled.

Further, the Claimants had argued that the government’s interpretation of the legislation and policy was incompatible with Article 1 Protocol 1 of the European Convention on Human Rights (A1P1), which protects property rights.

In the High Court, the Claimants succeeded on the main issue of interpretation of the legislation, but the Claimant’s further argument based on A1P1 was rejected.

The Government appealed the High Court’s decision to the Court of Appeal.

On 20 December 2024, the Court of Appeal allowed the appeal and overturned the High Court’s decision, therefore finding for the Government. In a careful and detailed judgment, Lady Justice Elisabeth Laing (with whom the other members of the Court agreed) explained why the Government’s existing interpretation of the legislation is the correct one, and that the Poultry farmers’ interpretation is not. The court held that the Secretary of State is only obliged to pay compensation for birds which are healthy when they are slaughtered.

The Court relied heavily on the statutory context of the 1981 Act and the 2006 AI Order to arrive at the correct interpretation of the particular provision. It considered that given that there were certain provisions in the 1981 Act which drew a meaningful distinction between the time of ‘condemnation’ to slaughter, and actual slaughter for compensation purposes, the fact that para 5 of schedule 3 did not draw such a distinction, was significant. Essentially, the Court concluded that if Parliament had wanted to make such a distinction and attach any importance to the time of ‘condemnation’ for compensation purposes, then it could have done so, but had not in this case. The Court also set out in detail the provisions of the AI Order 2006 and all of its extensive requirements, something which also evidently pointed the court to finding that, in relation to the A1P1 argument, the condemnation to slaughter was a ‘control of use’, not a ‘deprivation’, for these purposes.

The Court of Appeal dismissed the cross-appeal brought by the poultry farmers, holding that there had been no breach of their rights under A1P1.

The result is that the Government’s decisions on compensation for the individual farmers in this case stand as lawful, and the Government’s policy on compensation is likewise lawful.

A link to the judgment can be found here.

Mark Westmoreland Smith KC and Jonathan Welch acted for the Secretary of State throughout the proceedings. They were led in the Court of Appeal by Sir James Eadie KC.