Court rules that compensation for poultry farmers must be calculated at the time of condemnation, not slaughter, in landmark case on Avian Influenza control and property rights.

Citation: [2024] EWHC 65 (Admin)
Judgment on


In the case of LJ Fairburn & Son Ltd & Ors v Secretary of State for Environment Food and Rural Affairs, the High Court considered a judicial review claim relating to the statutory interpretation of compensation for poultry slaughtered under the Animal Health Act 1981 due to Avian Influenza. This judgment provides clarity on when the right to compensation arises for poultry farmers under the Act and discusses the compatibility of domestic law with the European Convention on Human Rights (ECHR), specifically Article 1 of Protocol 1 (A1P1), which protects property rights.

Key Facts

Poultry farmers, supported by the National Farmers’ Union, challenged the compensation policy for healthy birds culled to prevent the spread of Avian Influenza. Previously, compensation was paid only for healthy birds slaughtered, not those condemned to be culled. The claimants argued this delayed compensation, as birds often died before slaughter due to disease virulence, which reduced their compensation significantly.

The claimants contended that the right to compensation should accrue at the time of condemnation, not slaughter. The court examined whether the Act’s statutory obligation was being fulfilled and whether the failure to compensate for the condemned birds was compatible with A1P1 rights.

The court applied several legal principles in its judgment, including:

  • Statutory Interpretation: The court considered the natural and ordinary meaning of the text in the context of the statute, the law’s purpose, and its consequences.
  • Disease Definition: The court determined that “fowl plague” and “avian influenza” were synonymous under the 1981 Act, classifying Avian Influenza as a “disease” and thus, diseased birds were not eligible for compensation under paragraph 5(2).
  • Accrual of Compensation Rights: The court held that the right to compensation under paragraph 5(2) accrues at the point of condemnation, due to provisions within the wider statutory context and the purpose of encouraging early reporting of disease.
  • Article 1 of Protocol 1 (A1P1): The court categorized condemnation as a control of use, not deprivation, under A1P1. The measure was seen as proportionate and within the margin of appreciation afforded to the state by the European Court of Human Rights, despite the lack of compensation for birds deceased from disease post-condemnation.
  • Deprivation vs. Control of Use: The claimant argued that condemnation is a deprivation of property, invoking A1P1 protection, but the court found it equated to a control of use.
  • Proportionality: The proportionality under A1P1 required fair balance. The court determined that the failure to pay compensation for condemned healthy birds was proportionate, given the state’s wide margin of appreciation.


The judgment found two key outcomes:

  1. The policy before and after October 2022 was unlawful, and the Secretary of State’s approach failed to comply with the Animal Health Act 1981. Compensation for birds should be calculated at the time of condemnation, not slaughter.
  2. Grounds 1 and 3 succeed on conventional principles of statutory interpretation. However, Ground 2, concerning A1P1, did not succeed due to condemnation being categorized as a control of use, not deprivation.


This judgment reaffirms the importance of proper statutory interpretation and the court’s approach to human rights protection concerning property rights under the ECHR. It highlighted the need for domestic law to be compatible with human rights obligations while considering the state’s interests against individual rights. Poultry farmers affected by government policy on combating Avian Influenza gain substantial clarification on compensation rights, ensuring they are not unfairly burdened by nationwide disease control efforts.

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