A legal injustice
A few weeks ago in "A fair trial" I considered the foot and mouth fiasco. That included the problems which potential claimants would have about suing, referring to Weller & Co. v. Foot and Mouth Disease Research Institute [1966] 1 Q.B. 569 . Basically this arose from the well-known distinction between economic loss consequent on physical damage, and pure economic loss. Farmers up and down the country would have sustained pure economic loss as a result of the crisis, for which they would obtain no redress.(although some would have sustained physical loss acting as the gateway to a claim).
This of course has occurred against a background where the budget of the Department for Environment, Food and Rural Affairs (Defra) is under strain. This it must be said is largely due to its own ineptitude. It was subject to European commission fines for its failure/inability to distribute payments due to farmers in any acceptable timescale. Also European emergency funds which should have been available to deal with the previous foot and mouth outbreak were not available to anything like the extent they might otherwise have been, because of European concerns as to exactly how the outbreak was handled.
Defra is now having to make cuts because obviously given the fines there is less money available. Farmers were of course the victims of a failure to receive money timeously. It would therefore be absolutely outrageous were they to end up financially worse off as a result of a financial squeeze imposed because they were not paid as they should have been.
Now however it is being proposed that the costs of disease control (significantly foot and mouth, although bluetongue and bird flu are also relevant) be "shared" with the farmers. This means they are effectively to be charged for costs arising from the foot and mouth outbreak. What is unknown how much this "sharing" levy will amount to.
There are obvious reasons why the law should impose limits on the recoverability of economic loss. This is on the grounds that otherwise potential loss could end up being in an indeterminate amount to an indeterminate class which for various reasons of policy would be undesirable. That is the rationale which underlines a number of well-known cases including Weller.
However the evidence seemed pretty clear that the most recent foot and mouth outbreak came from lapses in biosecurity at a government funded laboratory at Pirbright, allowing the virus to escape. Exacerbated by officials giving the "all clear" prematurely, thus worsening the problem. Having benefited from the legal restrictions limiting government department liability, to then seek to impose a levy to recoup the costs of clearing up its own problem is to add insult to injury.
Technically speaking the limit on legal liability is of course no bar to imposing a levy in the circumstances. Nor is it the function of the legal system rather than government to make decisions as to how any levy should be implemented. However if and when it is, it is inevitable that this will be seen as a legal system failing. This is because although the government is charging a levy, the legal system did not permit widespread recovery of economic losses generally in the first place. It is be hoped that disadvantage to the farmers, and any fallout as regards the reputation of the legal system, are both avoided.