Compensation for Culled Poultry Runs from Slaughter, Not Condemnation: Court of Appeal clarifies Animal Health Act 1981 Sch 3 para 5(2) and upholds A1P1 compatibility

Introduction

This appeal arises from the devastating avian influenza outbreaks in 2021–2023 and the Government’s contingent culling operations. The respondents, several poultry farmers, challenged the Secretary of State’s compensation policies under the Animal Health Act 1981 (the Act), contending that they were entitled to be compensated for birds that were healthy at the time they were “condemned” to be slaughtered (i.e., when the slaughter decision was taken), rather than only for birds that were healthy at the moment of actual slaughter.

Hill J in the Administrative Court agreed with the farmers on two grounds and declared the Secretary of State’s policies unlawful. The Secretary of State appealed. The core issues before the Court of Appeal were:

Statutory construction: What does paragraph 5(2) of Schedule 3 to the Animal Health Act 1981 require regarding compensation for slaughtered poultry?
Human rights: If the statutory construction does not favor compensation from condemnation, do the farmers’ rights under Article 1 of Protocol 1 to the ECHR (A1P1) require an interpretation or outcome to that effect?

Lady Justice Elisabeth Laing (with whom Moylan and Nugee LJJ agreed) allowed the appeal and dismissed the cross-appeal on A1P1, laying down a clear, text- and context-driven reading of the Act and providing an important restatement of how A1P1 operates in the disease-control context.

Summary of the Judgment

The Court reframed the issue: The question is not when the “right to compensation accrues,” but in what circumstances and in what amount the Secretary of State must pay compensation under paragraph 5(2) of Schedule 3.
Clear statutory meaning: Paragraph 5(2) “could not be clearer.” Compensation is payable only for poultry (other than diseased poultry) “slaughtered under this paragraph,” and the amount is “the value of the bird immediately before it was slaughtered.” The duty attaches to birds actually slaughtered and healthy immediately before slaughter, not to birds merely “caused to be slaughtered” (i.e., condemned).
No reading-in of “caused to be slaughtered”: The statutory text distinguishes between “caused to be slaughtered” and “slaughtered” in multiple places in the Act. Parliament has elsewhere expressly legislated for different valuation points (e.g., pre-disease or at condemnation) but did not do so for poultry under paragraph 5(2). The Court refused to read words into para 5(2) that Parliament chose not to include.
Horner principle inapplicable: The presumption against interference with property rights without compensation (the “Horner principle”) does not apply where the statutory text is clear; in any event, its application is doubtful in the context of animal disease control and perishable property.
A1P1: Condemnation and associated measures are a “control of use,” not a “deprivation,” and the compensation scheme is within the State’s margin of appreciation and is not “manifestly without reasonable foundation.” No breach of A1P1 was made out.
Result: Appeal allowed; High Court declaration quashed; cross-appeal dismissed.

Factual and Legal Background

The outbreak of highly pathogenic avian influenza (HPAI) caused extraordinary mortality and practical difficulties in culling operations. Under the pre-October 2022 policy, compensation was based on the number of healthy birds actually slaughtered (capped by the health assessment form EXD188). Farmers argued that delays—despite the “without delay” obligation in article 20 of the 2006 (No. 2) Order—meant many birds condemned while healthy became diseased and died before slaughter, reducing compensation.

In October 2022, the Secretary of State announced a new policy to pay “from the outset of the planned culling.” Farmers considered this still insufficient because they contended compensation should be fixed at condemnation, the point at which their control over the flock is effectively removed and stringent restrictions bite.

Hill J accepted the farmers’ case on construction and A1P1 (in part). The Court of Appeal decisively disagreed on both fronts.

Detailed Analysis

1) Precedents Cited and Their Influence

Attorney General v Horner (1884) 14 QBD 245

Horner is a landmark statement of the principle that statutes are not normally construed to interfere with property rights without clear authority and compensation. The High Court relied on this “principle of legality” line to give the farmers the “benefit of the doubt.”

The Court of Appeal held that Horner is neither necessary nor apt where the statute is unambiguous. Paragraph 5(2) states exactly when and for which birds compensation is payable. Moreover, Horner arose in a land use context; its transposition to perishable, disease-susceptible livestock in the midst of a public health emergency is doubtful.

Westminster Bank Ltd v Beverley Borough Council [1971] AC 508

Westminster Bank affirms the general presumption against uncompensated takings but also emphasizes that Parliament may limit compensation in certain statutory regimes, particularly planning. The Court of Appeal used it to underscore that the absence of a compensation right cannot be invented by interpretation contrary to the statute’s clear words.

Chagnon et Fournier v France (ECtHR, 2010)

Preventive slaughter to combat foot-and-mouth was treated as a “control of use,” not a deprivation, and the compensation regime (not necessarily full indemnity) was within the margin of appreciation. The Court of Appeal considered this a highly persuasive and contextually apt authority in animal disease control.

SA Bio d’Ardennes v Belgium (ECtHR, 2019)

Again the ECtHR classified measures leading to slaughter as a “control of use.” Even where the authorities refused compensation due to the farmer’s regulatory breaches, the ECtHR upheld the overall balance struck, recognizing the strong public interest and national margin of appreciation in combating animal diseases.

Lithgow v United Kingdom (1986) 8 EHRR 329

Establishes the “manifestly without reasonable foundation” (MWRF) standard for reviewing legislative judgments in socio-economic policy domains under A1P1. The Court of Appeal applied this deferential standard when assessing the fairness of the compensation framework in disease control.

Newcastle Breweries v The King [1920] 1 KB 854

Referenced to illustrate limits on inferring compensation from secondary legislation where primary legislation does not authorize it—reinforcing caution against reading-in rights not expressed by Parliament.

Manchester City Council v Pinnock [2011] 2 AC 104

Cited by respondents to argue that ECtHR cases are not “binding” where not a clear, constant line of authority. The Court of Appeal accepted the formal proposition but regarded Chagnon and Bio d’Ardennes as highly persuasive and squarely applicable given their factual and policy proximity.

2) The Court’s Legal Reasoning

a) Reframing the Question

The Court emphasized that paragraph 5(2) answers two questions: (i) in what circumstances must compensation be paid; and (ii) how is it to be calculated. It does not specify a moment when a free-standing “right to compensation accrues.” Concentrating on “accrual” misdirected the analysis. Once the provision is read as written, its meaning is “not even arguably ambiguous.”

b) Text and Statutory Context

Paragraph 5(2) requires the Secretary of State to pay compensation “for poultry, other than diseased poultry, slaughtered under this paragraph” and sets the quantum as “the value of the bird immediately before it was slaughtered.” The Court drew several tightly reasoned inferences:

“Slaughtered” is a distinct statutory event from being “caused to be slaughtered.” Parliament uses that distinction across Schedule 3 and section 16A.
Where Parliament intended valuation by reference to a time other than immediate pre-slaughter (e.g., pre-disease), it said so expressly (e.g., cattle plague, pleuro-pneumonia, foot-and-mouth, and section 16A cases).
Section 34(1) shows that Parliament could—and did elsewhere—provide compensation “as in case of actual slaughter” for animals kept for observation instead of being slaughtered, underscoring that different triggers are used when intended.
The 1959 Order on ascertainment of compensation values operates procedurally once compensation under the Act is due; it does not alter the primary trigger for liability or the valuation moment under para 5(2).

In short, the Act’s architecture deliberately distinguishes the decision to cull (“cause to be slaughtered”) from the fact of slaughter; and distinguishes “liability to slaughter” from “slaughtered.” Paragraph 5(2) pegs both liability and valuation to actual slaughter and to the bird’s health status at that moment.

c) Rejecting Purposive Rewriting

Arguments about incentives—e.g., that tying compensation to slaughter might tempt the State to delay—cannot justify reading words into the statute that Parliament did not use. The regime already compels prompt slaughter (“without delay” under the 2006 (No. 2) Order) and imposes a criminal duty to report suspected disease; those are real incentives aligned with public health imperatives. The Court would not allow policy concerns to trump clear legislative text.

d) The “Horner principle” and property presumptions

Even if two readings were plausible (they were not), the Court doubted the transposability of Horner to the disease-control context involving perishable chattels. The larger public interest and the statutory scheme’s specificity make the land-based presumption an ill-fit. In any event, clarity in paragraph 5(2) leaves no room for the presumption.

e) A1P1: Classification and Proportionality

Classification: The Court agreed with Hill J that condemnation and associated measures are a “control of use” (not a deprivation), relying on Chagnon and Bio d’Ardennes. In disease control, animals remain property (though heavily restricted) until slaughter; measures aim at controlling and eradicating disease, a domain of strong general interest with a wide margin of appreciation for the State.

Fair balance: Applying the MWRF standard, the compensation framework—paying only for birds healthy immediately before slaughter—is within the margin of appreciation and not arbitrary or manifestly unsupported by rational policy. The statutory scheme balances private losses against urgent public health needs, and the absence of compensation for birds diseased by slaughter does not, in this context, impose a “special and excessive burden.”

3) Impact and Forward-Looking Significance

a) The new rule, in practical terms

Trigger and quantum: Compensation is statutorily due only for birds that are (i) actually slaughtered and (ii) healthy immediately before slaughter. The valuation point is immediately pre-slaughter.
No condemnation entitlement: A decision to cull (“caused to be slaughtered”) does not itself fix compensation.
Health status matters: Birds that become diseased before slaughter are not compensable under paragraph 5(2).

b) Implications for government policy and practice

Old vs October 2022 policy: The Court decided the statutory obligation; it did not purport to prohibit more generous policy choices. The pre-October 2022 approach (paying for healthy birds actually slaughtered) sits squarely with para 5(2). The October 2022 policy (paying from the “outset of planned culling”) reflects a policy choice potentially more generous than the statutory floor. The Court’s judgment overturns the High Court’s declaration of unlawfulness; it does not prevent ex gratia or discretionary enhancements where lawfully made.
Administrative records: The use of EXD188 (health assessment) as a practical tool remains important, but statutory entitlement ultimately turns on actual slaughter and health status at that time. Operational protocols should ensure the assessment aligns with what is legally compensable.
Operational urgency: Article 20’s “without delay” obligation remains critical. While delays were not litigated as actionable in this case, failure to act promptly could be vulnerable to separate public law challenge depending on the facts.

c) Litigation environment for farmers

Constructing claims: Arguments for compensation at condemnation are foreclosed by this judgment. Future disputes will likely focus on evidence of (i) the bird count actually slaughtered, (ii) contemporaneous health status immediately before slaughter, and (iii) whether the valuation correctly reflects the statutory point in time.
A1P1 claims: Claims reframed as A1P1 challenges face an uphill struggle: controls of use in epidemic control contexts attract a wide margin, and compensation regimes need not be full indemnities to be convention-compliant. Exceptional facts would be needed to dislodge the fair balance assessment.

d) Wider doctrinal ripples

Statutory interpretation: The judgment is a firm reminder to start with the text and the internal statutory architecture. Where Parliament uses different triggers or valuation points in adjacent provisions, courts should respect those distinctions.
Limits of the “principle of legality”: The presumption against uncompensated interference has limited traction where Parliament has spoken clearly and the subject-matter is dynamic, perishable property entwined with urgent public health interests.
HRA section 3: Strong statutory clarity narrows the scope for “reading down.” Compatibility was also affirmed on a conventional A1P1 analysis.

Complex Concepts Simplified

“Caused to be slaughtered” vs “slaughtered”: The first is the decision to cull (condemnation). The second is the physical killing. Paragraph 5(2) ties compensation to the second, not the first.
“Immediately before it was slaughtered”: This is the valuation time. The market value of the bird is assessed at the moment just before slaughter; if the bird is diseased then, it is outside the compensable class.
“Liable to be slaughtered”: A status used elsewhere in the Act (e.g., s.34) to anchor compensation under particular regimes. Parliament did not use this concept in para 5(2).
“Control of use” vs “Deprivation” (A1P1): Controls of use limit how you use your property; deprivation removes it altogether. Disease-control measures leading up to slaughter have been treated by the ECtHR as controls of use, assessed with a wide margin of appreciation for states.
“Manifestly without reasonable foundation” (MWRF): A deferential review standard for socio-economic judgments. Under A1P1, courts will uphold a regime unless it is plainly irrational or arbitrary in context.
Key operational forms:
- EXD188: Health assessment—records percentages healthy/diseased before cull begins.
- EXD64: Post-slaughter record—numbers slaughtered, deaths prior to slaughter, methods.
- EXD33/EXD34: Compensation calculation records.
Article 20 (2006 (No. 2) Order): Requires killing on infected premises “without delay.” It is a public law duty distinct from compensation rules.

Why the High Court’s Approach Was Rejected

Hill J’s approach turned on the idea that the “right to compensation accrues at condemnation.” The Court of Appeal considered that the wrong starting point. Once the provision is read on its own terms—pinning both the duty and the valuation to actual slaughter—the competing construction collapses. The “Horner principle” cannot be used to create ambiguity where the text and the wider statutory pattern are clear.

Practical Guidance for Stakeholders

For poultry keepers:
- Ensure meticulous contemporaneous records of bird numbers and health status; the statutory entitlement depends on the number healthy immediately before slaughter.
- Engage with health assessments (EXD188) but understand that it does not displace the statutory test, which is pegged to actual slaughter.
- Report suspected disease immediately (a legal duty), and cooperate fully; the regime’s incentives and duties work together, not in tension.
For the Secretary of State and operational teams:
- Maintain systems and resourcing to meet the “without delay” culling obligation; delays risk separate legal challenge and exacerbate losses on all sides.
- Align compensation calculations with the statutory trigger to minimize dispute; where policy offers more generous terms, ensure legal authority (e.g., ex gratia power) is properly documented.
For advisors and litigators:
- Construction arguments anchored in condemnation are now foreclosed.
- A1P1 challenges must confront Chagnon/Bio d’Ardennes and the MWRF standard; success is likely to be fact-sensitive and exceptional.
- If challenging delay, frame it as a public law duty to act “without delay” or as a specific operational failure, supported by robust evidence.

Conclusion

This judgment sets a clear precedent: under paragraph 5(2) of Schedule 3 to the Animal Health Act 1981, compensation is payable only for birds actually slaughtered and healthy immediately before slaughter, valued at that pre-slaughter moment. The Court firmly declined to transmute condemnation into a compensation trigger, holding that Parliament’s drafting choices across the Act foreclose such an interpretation.

On human rights, the Court endorsed the approach of the European Court of Human Rights in closely analogous disease-control contexts: measures culminating in slaughter are controls of use; the compensation framework lies within the State’s margin of appreciation and is not manifestly without reasonable foundation.

In systemic terms, the decision reinforces a disciplined, text-first approach to statutory construction, limits the reach of land-based property presumptions in fast-moving public health emergencies, and provides stability for future outbreak responses. While the State may choose to be more generous as a matter of policy, the statutory floor is now settled: condemnation does not create an entitlement; slaughter (and health status at that time) does.