1 July 2020, David Thomas
This case was about Sylvie, a blind cross collie rescued from a ‘killing’ shelter in Romania and sent to a UK rescue charity. Advocates for Animals (AfA) represented the defendant, June Lane, in the appeal proceedings.
AfA would not normally act against an animal charity. However, the case had unusual features and presented an opportunity to chip away at the legal principle that, as chattels, animals are subject to the same rules of property law as inanimate objects.
The charity fostered Sylvie to Ms Lane, an experienced fosterer, while they sought a suitable permanent home. The parties entered into a fostering agreement, which was silent about when the charity could demand Sylvie’s return, save if they thought she was not getting proper care (the charity acknowledged in fact that Ms Lane had given Sylvie ‘wonderful care’).
One adoption had already failed and Sylvie was in a distressed state before she came to Ms Lane. Her confidence improved but unfortunately in time her health deteriorated. A veterinary neurologist later suggested that she had a canine form of dementia and that it would be better not to move her.
In June 2018, the charity asked for Sylvie back but Ms Lane declined. She was concerned that, given Sylvie’s combination of conditions, moving her at this time would exacerbate the distress and disorientation she was exhibiting. She offered to adopt Sylvie but the charity refused.
The charity brought proceedings for Sylvie’s return and were successful before the district judge. The judge said that, in law, Sylvie was ‘essentially the same as a car or something else’ and that therefore she could not take her welfare into account. Ms Lane was eventually given permission to appeal.
There were really two issues on the appeal. First, although a fostering agreement is by its nature temporary, should a term be implied here that the charity could not demand Sylvie’s return if that would be significantly detrimental to her welfare? The whole point of the agreement was to safeguard her welfare. (Whether there would in fact be significant detriment would depend on all the evidence, including veterinary evidence, in the normal way).
Second, if there was no such implied term and the charity was entitled to demand Sylvie’s return whenever they wanted, should the court in the exercise of its discretion instead order Ms Lane to pay damages to the charity? Whenever an owner brings proceedings for the return of their chattel, the court can order damages instead if that would compensate the owner adequately.
Judge Godsmark indicated that the fostering agreement was an example of what the law calls a bailment. This is where someone temporarily transfers possession but not ownership of a chattel to someone else. He said the agreement had some features of a bailment at will, which arises where there is no agreed endpoint for the arrangement. With such a bailment, the owner – the bailor – can demand return of the chattel at any time.
Could an implied term save Ms Lane? There are a number of hurdles which must be overcome before a court will imply a term into a contract. The leading decision is now that of the Supreme Court in Marks & Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd & Another  UKSC 72. The crucial issue in the present case was whether the suggested implied term would have been obvious to a reasonable observer when the agreement was entered into. The test is a stringent one: the starting-point, and usually the finishing-point, is what the parties have expressly agreed.
The judge decided that the implied term did not reach the obviousness threshold. The charity was entitled to call for Sylvie’s return without regard to her welfare. Indeed, the trustees would be within their rights to put her to sleep ‘at a whim’ (it was not suggested that they intended to do that).
However, he found for Ms Lane on the second issue. The district judge had wrongly failed to exercise her discretion and he could therefore exercise his, under section 3 Torts (Interference with Goods) Act 1977. He decided that Ms Lane should be ordered to pay damages rather than return Sylvie. He was influenced by the fact Sylvie was not the trustees’ pet – they simply wished to place her elsewhere. She therefore had no particular value to the charity.
Damages could compensate. The most the charity could expect to get for Sylvie was their standard adoption fee of £255. However, Ms Lane had made an open offer of £2,500 – evidence of her commitment to Sylvie – and the judge decided that that should be the measure of damages.
The judge recognised that, in law, Sylvie was a chattel, subject to the same incidences of ownership as, say, a book. That clearly influenced him in applying the obviousness test. That test is largely a matter of impression: it would not be surprising were people to disagree on what is obvious with any given contract.
However, the judge made an interesting comment about animals’ status as property. He said that perhaps animals should not be regarded as such: ‘they play a large part in our emotions and our lives, they breathe, they feel pleasure and pain. Maybe the law should recognise this, but it does not’. In other words, perhaps time for reform of the law.
Moreover, he recognised that Sylvie was both unique and sentient. Her market value was relatively small but she had ‘substantial emotional value’. Ms Lane was invested in her welfare. It would be surprising if Sylvie’s welfare needs did not influence the way the judge exercised his discretion.
County Court judgments are not legal precedents and this judgment does not represent revolution. But it is important in showing that what happens to an animal does not have to follow property rights. Sentiency and the animal’s best interests have an important role to play too.
Legislative reform is always the gold standard. But cases can have an important, if incremental, role in moving the law in a more enlightened direction. It is hoped that future cases will build on Judge Godsmark’s approach in this case.
Chesterfield County Court: 30 June 2020
Orton and others v Lane: E00HF536
Judge Godsmark QC