News & Events

Barry Hayes

Posted 14 March 2014
by Barry Hayes

Harbour Law newsflash 2014

Need to take legal advice should always be at the forefront

The issue of moving livestock through ports has over the last decade or so resulted in sundry litigation.

The latest example which went for trial on liability only reached The Chancery Division of The High Court in December last year. Judgment on liability has now been pronounced.

The case involved the export in 2012 of livestock to another EU Member State through a Local Authority run Port in Kent. For about a month in that year, the export of livestock was suspended by the Port. The decision to suspend was made the day after very unfortunate problems with one particular shipment that was unloaded at the Harbour and saw the deaths of just over 40 animals.

The Port’s view was that the imposition of a temporary suspension due to the lack of necessary animal welfare facilities constituted a proper exercise of the its statutory powers under Section 40 of Harbours Act 1964 (power to impose conditions regarding use of the port) and therefore did not contravene the general duty to operate the Port as an open port pursuant to Section 33 of the Harbours, Docks and Piers Clauses Act 1847. Moreover, the Port took the view that a temporary suspension did not amount to arbitrary discrimination or a disguised restriction on trade.

Although the suspension was lifted the exporters contended they had suffered a significant financial loss & pursued litigation. The Court has ruled on liability in favour of the exporters so a claim for damages against the Port will now continue. That damages’ loss is reported to be claimed at £1.5 million.

On the particular facts, the Court has ruled that the suspension in fact amounted to a ban the real objective of which was simply to stop the shipment of livestock through the Port, effectively on a permanent basis. In the view of the Court, this was an unjustifiable breach of a fundamental element of the rules governing free trade in the EU. The Port did not have the power to use section 40 in a manner inconsistent with EU Law. In the Judge’s view, it was a disproportionate decision reached in haste without separate legal advice. Whilst legal advice had previously been taken about the Port’s position on the export of livestock, advice had not been taken regarding the appropriate reaction to the very unfortunate events that saw loss of life.

Decisions often have to be made promptly by ports but this case underlines the need to involve lawyers should always be at the forefront of the decision making process on matters involving use of the harbour. At Tozers we are here to assist you with those decisions (plus on the thorny issue of the interrelation between EU & National law) and to save you from what can often be significant damages and costs awards.

Find out more

Please contact our specialists Stephen Jennings or Barry Hayes at

Broadwalk House, Southernhay West, Exeter EX1 1UA.

Call 01392 207020 or email enquiries@tozers.co.uk

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About the author

Barry Hayes

Barry Hayes

Partner

Partner and solicitor in the Litigation department with substantial experience in High Court litigation