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DM V SK

Updated: Jan 22



This case was about a break up and a subsequent dispute over the ownership of a dog that was rescued during the relationship. Advocates for Animals (AfA) represented the Defendant (who later became the Appellant), SK, in the appeal proceedings.


AfA would not normally act in a pure “property” dispute. However, the case had unusual features and presented an opportunity to question the legal principle that, as chattels, animals are subject to the same rules of property law as inanimate objects. AfA believes the interest of the animal should be taken into account. 



The Facts


The Claimant (DM) and The Defendant (SK) planned to adopt a dog in late 2020/early 2021. This dog would be a companion for SK’s other dog


The rescue charity required the new home to have a resident dog to keep the rescued pup company, this was satisfied by SK’s other dog. 


A home check took place on 9 February, which was signed and dated by SK as ‘the person being home checked’.


On 19 March 2021 the contract was sent to DM’s email address and transferred the adoption fee, with SK claiming to have paid more household bills that month. SK took the first week off work so that she could help the dog settle in and continued to work from home thereafter.  DM did not work from home. 


SK set up the dogs pet insurance with PetPlan and registered the dog at the vets soon after he arrived and took him to his first ‘puppy health check’ on 25 May 2021. SK also organised his first flea and worm treatment at this appointment. SK covered all the vet treatment. 


SK ended the relationship with DM in April 2021, but they remained living together on amicable terms until 31 August 2021. When SK and DM moved into separate properties on 31 August 2021, the dogs stayed with SK, with DM taking occasional custody of the dogs.

   

This arrangement was suddenly called into question when on 8 January 2022, after taking the dogs for the night, DM sent a message to SK stating that having a dog share doesn’t work long term.  DM later returned the dogs to SK. 


Despite the previous event, on 18 January 2022, DM asked to see the dogs. SK went for a walk with him.  The walk quickly became tense and when SK went back to her car, DM took the dog from the boot and started running to his car with him. Some strangers helped get the dog back, the police were called and the matter was reported. 


On 8 February 2022, SK received a letter of claim for the possession of the dog. 



First instance hearing


Apart from DM having initial legal counsel, both parties were litigants in person in the case of first instance. 

      

Deputy District Judge Jabbour, on 3 February 2023, found in favour of DM, primarily on the basis that he signed the adoption contract and transferred the adoption fee. The judge stated the following:


I made clear to the parties at the beginning of the hearing, and I should state I explained that this was very much a binary process, that [the dog], or indeed any other dog or pet, is treated as property in the eyes of the law, these are civil proceedings as the parties were not married. Whilst the parties may have, and do have, strong attachments to[the dog], in the eyes of the law [the dog] is property and as the claim is effectively pleaded as such, the Court approaches the matter on that basis, notwithstanding the strong feelings of attachment that both parties may have for [the dog]. 


Therefore, for all of those reasons I find that on the balance of probabilities the intention was that [DM] would be the sole owner and adopter of [the dog], and that is the adoption contract that was signed. Of course there is no doubt that [SK] did look after [the dog] very well. [DM] is not suggesting otherwise. The fact that she is an experienced dog owner and handler and trainer is noted, but unfortunately those are not relevant to the issue of legal ownership and intent. Again, I reconfirm that the payment of the adoption fee is again consistent and supports my finding that [DM] was intended to be the sole owner.


SK came to Advocates for Animals to appeal the decision. 


The decision as to who is the owner was decided on a question of fact, as such the appeal focused on the point of law that after finding that DM was the owner, the judge should have used their discretion to decide the most suitable remedy. Permission was granted on this basis. 



The Appeal


Relevant law


The Torts (Interference with Goods) Act 1977

 

Subsection 3(1) 


In proceedings for wrongful interference against a person who is in possession of in control of goods relief may be given in accordance with this section, as far as appropriate. 


Section 3(2) 


The relief is –

  1. an order for delivery of the goods, and for payment of consequential damages, or

  2. an order for delivery of the goods, but giving the defendant the alternative of paying damages by reference to the value of the goods, together in either alternative with payment of any consequential damages, or

  3. damages.”


Section 3(3)


(a)relief shall be given under only one of paragraphs (a), (b) and (c) of subsection (2)          

(b)relief under paragraph (a) of subsection (2) is at the discretion of the court, and the claimant may choose between the others.


Sharma & Sharma v Pumridge, Roper & McNeil 1991 WL11780401 


This case concerned two dogs. There was a judgment in the County Court ordering delivery up of the dogs to the plaintiffs by two of the Defendants. These dogs had bred and then been sold and delivered to the plaintiffs. The plaintiffs lived in comfortable premises and had a run and shed for the dogs which escaped on 05.12.87 and were found running loose and delivered to after seven days under the Dogs Act 1906 to an organisation called Collie Rescue which placed the dogs with two of the Defendants where they remained.


In the Court of Appeal, the court’s discretion under subsections 3(2)(a) and 3(3)(b) of the 1977 Act was considered. Lord Justice Dillon stated in his judgment:


Thus an order for delivery up of the goods without any option in the defendant of of paying damages is an order to be made at the discretion of the court. This is in line with long-established law…….[LJ Dillon then quotes from the case of Whitely Limited v Hilt [1918] 2KB 808]…. 


But, in my judgment, as the matter is in the discretion of the court and indeed on the authorities the order for delivery up of a specific chattel is an exception rather than the general rule, factors such as the time the animals had been with Miss Roper and Mrs McNeil, and the fact that for the last year or thereabouts Mr and Mr Sharma had acquired two more collie dogs, are matters which the judge was fully entitled to take into account when considering whether or not to exercise the discretion under section 3(2) of the 1977 Act. He was persuaded to the contrary, but wrongly, in my judgment, so persuaded. Therefore the position is that he has not exercised any judicial discretion under that section as expressly required by the words of that section.  


…….. One cannot consider the one factor as a reason why an order for specific delivery up should be made without also taking into account the other factors…….


Bearing the lapse of time in mind and the other matters I have just mentioned, I frankly regard it as silly that these dogs should be taken now, more than a year after the judge’s order, when even then there has been the long lapse of time since the dogs were last with the plaintiffs, and be delivered back to the plaintiffs who already have their two other collie dogs. I take the view that this is, and indeed was at the time it was tried by the judge, emphatically as case where an award of damages is sufficient compensation.            

                    

Lord Just Stocker agreed stating: 


…..it seems to me that only harm could be done to either of the protagonists or indeed the dogs were they now to be uprooted and returned to their original owners, the Sharmas….In my view, the exercise of discretion which my Lord has proposed and with which I wholly agree accords not only with the proper exercise of discretion but with the application of common sense. 


Orton, Clarke & Jamieson v Lane, Case Number E00HF536


The county court case of Orton v Lane involved the possession of a rescue dog called Sylvie, and also concerned the court’s discretion under section 3 of the 1977 Act and the failure of a District Judge to exercise her discretion or consider any options available to her. You can read that case summary here.

 

The Learned Judge considered the relief under section 3 and referred (at paragraph 23) to the discretion available to the court which the District Judge in that case, as here, had failed to recognise. There were options available to the District Judge which she had failed to consider. The Learned Judge said that|:- in failing to decide what remedy was available, she failed to exercise her discretion and it is now for me to exercise my discretion in her place.


The Judge allowed the appeal against an order for delivery up of the dog and described Sylvie as “unique” and “a sentient being” and that “she had a relatively small market value but clearly a substantial emotional one”. The Learned Judge stated there were “two sides to be balanced”.


The Judge found that damages were an adequate remedy for the deprivation of Sylvie and allowed the appeal, ordering a payment by way of damages instead of delivery up of Sylvie and order that, on payment of the damages, the ownership of Sylvie would be transferred to Ms Lane, the Appellant.



The Judgment


On 8 December 2023, District Judge Simpkiss found in favour of the Appellant and allowed the dog to stay with SK, setting aside Judge Jabbour’s order. The Judge also ordered that DM’s ownership of the dog be extinguished and instead have it vested in SK. 


SK was ordered to pay nominal damages, a deemed necessary measure when exercising the discretion, which was set off against the cost of maintenance for the dog; bringing the sum payable to DM to zero. In addition SK was awarded her fixed costs in the proceedings. 


In reaching his decision, Judge Simpkiss found that Judge Jabbour, after finding DM was the owner of the dog,  had not exercised her discretion under the 1977 Act as to the most appropriate remedy. 


Judge Simpkiss then went on to consider the most appropriate remedy, the factors he considered included: 


  1. The dog was purchased jointly 

  2. When they broke up they had a shared custody arrangement, but the dog primarily resided with SK

  3. Ownership by DM was technical

  4. SK looked after the dog well

  5. The dog was bonded with the other dog that lived with SK



Commentary 


The first instance judge found DM was the owner on a question of fact, this being that DM signed the agreement and paid the fee. SK disputes that it was ever the intention that DM owned the dog.


The appeal was confined to a question of law, this being the the lack of discretion exercised by the first judge. When arguing on discretion, SK was able to make representations that the best interest of the dog should be taken into account above their property status. In doing so she was able to overturn the previous decision. 


Our clients are often outraged that nonhuman animals under their care are considered mere property, or “things”, under law, and they believe that this does not reflect the status or value they deserve. We will continue to represent clients when animals are treated as mere property, without their real value and interests taken into account.



Advocates for Animals was instructed as the solicitors for the Appellant, who were represented at trial by Edmund Walters of 42 Bedford Row Barristers. 


Brighton County Court: 8 December 2023 



Getting advice


This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws please contact info@advocates-for-animals.com.

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