LJ Fairburn & Son Ltd & Ors, R (on the application of) v Secretary of State for Environment Food and Rural Affairs

Facts

The claimants are seven poultry farming businesses whose flocks were affected by Avian Influenza during the 2021/22 and 2022/23 outbreaks. The defendant Secretary of State, acting through the Animal and Plant Health Agency, has power under paragraph 5(1) of Schedule 3 to the Animal Health Act 1981 to condemn birds to slaughter to curb the spread of the disease, subject to a duty under paragraph 5(2) of Schedule 3 to the Animal Health Act 1981 to pay compensation for poultry other than diseased poultry. Under the policy in place before October 2022, compensation was paid only for healthy birds actually culled, assessed at the conclusion of the cull. Because the strain circulating in 2021/22 was highly virulent and culling was often delayed well beyond the two-day policy target — the first claimant described a 14 to 15 day delay in which it lost 477,111 birds — many birds healthy at condemnation were diseased or dead by slaughter, sharply reducing compensation. In October 2022 the defendant introduced a new policy compensating birds healthy at the outset of planned culling. The claimants, supported by the National Farmers' Union as interested party, brought judicial review contending that the right to compensation accrues at condemnation, challenging the old policy (Grounds 1 and 2) and the new policy (Ground 3). Lang J granted permission on Ground 3 and ordered a rolled-up hearing on Grounds 1 and 2.