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APPEAL BY KEVIN MARTIN IN THE CASE EAST LOTHIAN COUNCIL AGAINST KEVIN MARTIN

SHERIFFDOM OF LOTHIAN AND BORDERS

 

 

Case Number: B58/14

2014SCEDIN42

 

 

 

 

 

 

 

 

 

 

 

 

Judgment by

 

SHERIFF PRINCIPAL

MHAIRI M STEPHEN

 

in appeal

by

 

KEVIN MARTIN

Appellant

 

in the cause

 

EAST LOTHIAN COUNCIL

Pursuers and Respondents

 

against

 

KEVIN MARTIN

 

Defender and Appellant

Respondent

 

___________________________

 

 

Act:  Party Appellant

Alt: Richardson, Solicitor

 

 

 

EDINBURGH, 30 June 2014

The Sheriff Principal having resumed consideration of the appeal, refuses the appeal, adheres to the sheriff’s interlocutor of 15 May 2014, finds the appellant liable to the respondents in the expenses of the appeal and allows an account thereof to be given in and remits same, when lodged, to the Auditor of Court to tax and to report.

(signed) Mhairi M Stephen

 

 

NOTE:

  1. Mr Martin appeals the sheriff’s interlocutor of 15 May 2014 which grants a disposal order in terms of section 34 of the Animal Health and Welfare (Scotland) Act 2006 (hereinafter referred to as “the Act”) in relation to 24 pigs (and the offspring of these pigs) and 44 hens which have been abandoned at Magic Farm, Willow Rise Whittingehame, East Lothian formerly occupied by the appellant.Mr Martin, the appellant, appeals in his own name and in the name of his daughter who is not a party to these proceedings.She is nine years old.

     

  2. In granting the disposal order the sheriff exercises the court’s powers in summary applicationproceedings brought by the local authority in terms of the Act.The disposal order appoints the pursuers, East Lothian Council,to sell the pigs after taking advice from Lawrie & Symington, Livestock Auctioneers and Valuers,as to the best method of sale in order to achieve their value.This is in conformity with section 34(8) (a) of the Act.The sheriff’s order appoints the pursuers to sell the hens at the poultry market in Lanark.The defender is entitled to the sale proceeds after deduction of the sums due to the pursuers in terms of section 32(11) and section 34(3) of the Act.

     

  3. The appeal was lodged on 28 May 2014.The appeal hearing was fixed promptly as the pursuers are incurring daily costs in feeding and attending to the animals.These costs are met from public funds.

     

  4. On 15 May 2014 the case called before the sheriff at Haddington for proof.This was the fifth proof diet, previous diets having been discharged for a variety of reasons all as narrated in the note by the sheriff attached to the interlocutor of 15 May.One proof on 25 April could not take place due to lack of court time and a further diet was fixed for 15 May.

     

  5. On 15 May the council were represented but there was no appearance by or on behalf of the appellant.A letter had been e-mailed by the appellant’s general practitioner the terms of which are set out in the sheriff’s note.The terms of the letter are inspecific as regards firstly, the appellant’s illness and does not certify that the illness, whatever that may be, caused the appellant to be unfit to attend court.Subsequently, attached to the note of appeal the appellant provided a fuller report which states that he was unable to attend court on 15 May because he was suffering from painful thrombosed external haemorrhoids.The report is now available however as noted by the sheriff there was information available to the effect that the appellant had been seen to be busy on his landholding the weekend prior to the court hearing on 11 and 12 May.An e-mail from the appellant to the court on 15 May indicates that he had been suffering from this unspecified painful illness since Friday 9 May 2014.

     

  6. Standing the procedural history, the non appearance of the appellant and the conduct of the case by the appellant the sheriff having considered whether to assign a peremptory diet but decided not to do so.He had regard to Canmore Housing Association Limited v Scott 2003 SLT (Sh Ct) 68.

     

  7. Furthermore, having regard to Scottish Ministers v Smith 2010 SLT 1100 the sheriff was entitled to take into account the nature of the medical certificate provided and any other relevant facts and circumstances.In this case there were relevant circumstances as referred to by the sheriff in his note as presented by Ms Richardson of East Lothian Council.As in Smith the report was not conclusive evidence that the appellant was unfit to attend court.

     

  8. The sheriff then considered the legislation, the documentary evidence and submissions.Before granting the disposal order the sheriff had regard to the terms of section 34(8) of the Act.

     

  9. Summary application proceedings are by their very nature summary in character and procedure.Clearly one of the important objects of the legislation is to ensure animal welfare and to reduce suffering and to minimise any continuing expense of maintaining animals.On the other hand Mr Martin in his note of appeal emphasises another principle of the Act and that is to protect the value of any animal to which the order applies.The court order permitting sale of the animals is ostensibly designed to protect their value hence the requirement to obtain the advice of Lawrie and Symington with regard to the pigs, thus maximising the prospects of the animals achieving their true value whatever that may be.

     

    Appeal hearing – 19 June 2014

  10. When the appeal called at 10.30am on 19 June the appellant was not present.Around the same time information was received that the appellant had attended at Haddington Sheriff Court in error.The appellant was aware of the date of the hearing as he had been in e-mail communication with the solicitor for the council.The letter from my appeals clerk advising of the date time and place of the hearing had been sent to his correct address both by recorded delivery and first class post that being his address at Northfield Drive, Edinburgh, EH8 7RW as given in the note of appeal.The recorded delivery letter had been returned by the Royal Mail with the information “no answer”.

     

  11. Mr Martin apologised for delaying the court when the appeal commenced just before mid-day.However Mr Martin immediately sought an adjournment of the appeal hearing.He indicated that he had approached every solicitor that did civil work and none would take his case.When pressed for information about that there appeared to be a degree of conflation of these proceedings with other proceedings in Haddington Sheriff Court in respect of an ASBO.Nevertheless, the appellant, who has been unrepresented throughout these proceedings stated that he wished an adjournment to obtain assistance from an individual who was not a solicitor but could assist him as a lay representative and whose name was “Tricia”.Mr Martin was unable to provide any further information about his proposed lay representative apart from giving her first name “Tricia” and stating that she was “a very, very clever person”.Mr Martin was unable to provide a full name or any other information apart from the fact that she lived in Kirkliston and that they had spoken by Skype.Unfortunately, Mr Martin became aggressive and challenging when I enquired further about the identity of this individual.His attitude was belligerent and he immediately declared that he didn’t like my tone and that matters had been prejudged.I invited Mr Martin to conclude his motion to adjournment.He indicated that he was now the owner of the animals and that he had a common law right to have them returned and that a tort had been perpetrated.The motion to adjourn was opposed by the council who referred to the sheriff’s note attached to the interlocutor of 15 May particularly that part dealing with the procedural history and Mr Martin’s conduct of the case.Decree had been granted at the fifth proof diet.The council were opposed to any further continuation as expenses were accruing daily and having to be met currently from the public purse.

     

  12. Having considered the motion I took the view that the appellant who had conducted his own defence throughout these proceedings ought to have been ready for the appeal having already considered his grounds of appeal which were lodged on 28 May.I had to balance the need for expedition in these proceedings with any potential prejudice to the appellant.I took the view that the appeal should proceed.There had been no attempt to contact the court to seek an adjournment prior to the morning of the hearing.The information given by the appellant about his proposed lay representative was vague.The appellant had represented his own interests throughout and had lodged grounds of appeal some three weeks earlier.These are summary proceedings and accordingly, I refused the appellant’s motion.

     

  13. When I refused his motion the appellant became even more intemperate and challenging.I asked the appellant if he required a short adjournment and I allowed a short adjournment of 10 minutes to compose himself following his outburst.His intemperate outburst was to the effect that he didn’t like my tone and that I was biased against him.

     

  14. On his return to court the appellant, despite my ruling on his motion for an adjournment proceeded once more to seek an adjournment again indicating that this was in the interests of justice and that a tort had been perpetrated.Again, he indicated that he had a common law right to the pigs and chickens which were his property.He indicated that two of the pigs and the chickens were actually pets belonging to his nine year old daughter.If he was not allowed an adjournment he would seek an injunction and commence judicial review proceedings.He was prejudiced because of lack of legal advice.When I reminded Mr Martin that I had ruled on his adjournment he became very agitated.When he requested a short adjournment until 2pm I agreed that the appeal could be adjourned until after lunch-time to enable him to consult with “Tricia”.

     

    Appellant’s Case

  15. Mr Martin addressed me on the four points of law in his note of appeal.Points two, three and four tended to overlap.

     

  16. The first point relates to the manner in which the sheriff exercised his discretion with regard to his failure to attend on 15 May 2014 and the medical report communicated to the court by the appellant’s general practitioner the evening prior to the hearing of 15 May 2014.Mr Martin explained that he suffered from a condition which caused him severe pain for a few days several times a year.At its most acute he required to lie on his stomach and he was unable to sit or stand.The condition starts gradually and gets worse and can be unpredictable.He was unable to attend his GP who is in East Linton and who would not do a home visit at Northfield in Edinburgh.He had done all that he could.He also contacted the court by e-mail as the sheriff refers to in his note.The sheriff should not have challenged or questioned the medical report and indeed, Mr Martin suggested that I should not look behind either the report provided to the court on 15 May or indeed the further report of 27 May provided by Dr McIntosh.In these circumstances the sheriff erred in failing to grant an adjournment.

     

  17. The second point relates to a report by Peter McLaren of Ballencrieff Pork who is an expert in free range pigs.The sheriff had a duty to follow section 34(8)(a) of the Act which requires him to have regard to the desirability of protecting the value of any animal to which an order applies.The report by Peter McLaren assisted the court with regard to the value of the animals and the sheriff failed to take Mr McLaren’s report into account.I indicated to the appellant that Mr McLaren’s report had not been lodged in process.Although Mr Martin asserted that the report had been lodged no report had been intimated to the solicitor for the council.Mr Martin was unable to produce a copy of the report.Nevertheless Mr Martin considered that the respondents’ valuation from Lawrie & Symington was ridiculously low and had the sheriff evaluated both reports he ought to have preferred the report from Mr McLaren, albeit, this does not appear in process.

     

  18. The third point related to a letter from Jonathan Crombie of Crombie’s Butchers which gives an estimate of the number of hotdogs which can be produced from one pig.Although it does not give a valuation, according to the appellant, the costs of producing the hotdogs and butchering the pig would be minimal probably in the region of £100 or so.Mr Martin submitted that the letter from Crombie’s indicated therefore that the value of each pig was £2,500 or thereby being the number of hotdogs per pig multiplied by the retail price of a hotdog.

     

  19. Finally, having regard to the documents lodged by the appellant (Inventory 13A) on 11 April 2014 the sheriff ought not to have granted decree without further enquiry, having regard to the terms of section 34(8)(a) of the Act.

     

  20. I was asked to allow the appeal and in particular differentiate between the pigs which were bred for commercial purposes and two pigs which were family pets.I was asked to grant an order allowing Mr Martin and presumably his daughter to visit or view the pigs.

     

    Respondents’ Case

  21. The respondents urged me to refuse the appeal and adhere to the sheriff’s interlocutor.The sheriff had carefully considered all matters relating to the case in the context of the appellant’s failure to appear at the fifth proof and had come to the correct decision.His reasoning could not be criticised.

     

  22. Ms Richardson, for the respondents, provided further information with regard to the proof which called on 15 May 2014 at Haddington.Eight witnesses had been cited on behalf of the council to attend court.Most attended for 10am and some were called for noon.By the time the case concluded all witnesses had attended court.No witnesses had been cited or attended on behalf of the appellant.The appellant did not inform the court or the council of his illness prior to the morning of the hearing.There was no opportunity to countermand witnesses or consider whether to fix another proof.The e-mailed report from the appellant’s GP was inspecific and not evidence that Mr Martin was unfit for work.I was referred to Scottish Ministers v Smith 2010 SLT 1100.The appellant delayed until 9am on the morning of the proof before e-mailing the court.The council did provide the sheriff with information relating to the observations of the appellant working on his land and out driving on 11 and 12 May respectively.This is not disputed and the witnesses who spoke to seeing the appellant at that stage had no reason to know of his illness.I was also referred to the case of Y v Y [2013] CSIH at 27.

     

  23. In any event the sheriff had other material available to him upon which to make his decision as to the absence of the appellant.He was entitled, if not obliged, to consider the procedural history of the case.This was the fifth proof.It was summary application procedure and the sheriff had a statutory obligation to avoid continuing expense in terms of section 34(8) of the Act.I was informed the costs of looking after and feeding the animals had reached £12,549.79.Community wardens also required to feed the chickens and they required to be paid overtime for doing so at weekends.Accordingly, having regard to the lack of a substantial medical reason for the appellant’s non-attendance and the other circumstances of the case the sheriff correctly proceeded in absence of the appellant and was entitled to grant decree.

     

  24. With regard to the second point of law Ms Richardson pointed out that there was no expert report by Mr McLaren in process.Nor had Mr McLaren been cited.The appellant had not intimated any list of witnesses at all and therefore could not have led evidence in support of any such report.No witnesses had been cited and no witnesses appeared at court for the appellant.The appellant had been given specific advice at earlier hearings as to what he required to do with regard to productions, witnesses and preparation for proof.By contrast the respondents had lodged a number of reports by Dr Brown the Veterinary Surgeon together with affidavits and a valuation by Messrs Lawrie & Symington.I was reminded that the appellant had been given an opportunity to put right the deficiencies in the land where the pigs had been kept.The proof had been adjourned for two weeks from 11 April to 25 April for that purpose.A site inspection had been set for 23 April to allow the appellant an opportunity to rectify the fencing etc.The site inspection arranged for 23 April was delayed for 24 hours at the appellant’s request and a site inspection took place on 24 April which is the subject of Dr Brown’s supplementary report of 24 April.The report confirms that the area remains unsuitable for keeping any number of pigs.Accordingly, the appellant had the opportunity to lodge reports but did not do so.The sheriff cannot be criticised for failing to take account of reports that were not available to him.

     

  25. With regard to the third point relating to valuation, I was reminded that the appellant had lodged no valuation.The letter from Crombies was not a valuation, it was not signed and was undated.There were no witnesses cited and available to speak to the letter which referred to the number of hotdogs that could be produced from a particular weight of pig.Accordingly, the appellant had an opportunity to lodge reports but did not do so.Without a list of witnesses the appellant could not lead evidence from the authors of any reports.The statutory requirement was to give the owner of the animal an opportunity to make representations before making an order.The appellant had had both fair and ample opportunity to make representation.The appellant had not assisted the progress of the case.His initial position was to the effect that he was not the owner of the animals but that he was a volunteer who fed the animals.He then indicated that the true owner was either Mr Islam or a limited company however by the time of the proof on 11 April the appellant accepted that he was the owner of the animals.Although the proof was unable to proceed on 25 April the presiding sheriff, noting that no list of witnesses and no productions had been lodged, gave advice to the appellant as to preparation for the proof which was continued until 15 May.The appellant has frustrated the expeditious progress of the application in a procedural sense.He has not prepared for proof.His absence on 15 May was not properly vouched and there were circumstances which called into doubt the veracity of his medical reasons.Having regard to the decision in Canmore Housing Association the sheriff was correct to grant decree.Accordingly the appeal should be refused and if refused expenses should be awarded in favour of the respondents.

     

    DECISION/

     

     

    DECISION

  26. This is a summary application brought by the local authority under section 34 of the Animal Health and Welfare (Scotland) Act 2006 for an order that the pigs and hens taken into possession under section 32 of that Act be sold.

     

  27. Sections 32 to 35 fall under that part of the Act which deals with “Animals in Distress”.The animals with which this application is concerned had been taken into possession by the local authority in exercise of powers under section 32 of the Act on 26 February 2014.The reasons for so doing related to the likelihood of them suffering following the appellant abandoning them;the animals escaping due to inadequate fencing and that the land was not suitable to accommodate them.There were concerns also for public safety when the pigs escaped.The process of taking the animals into care involved significant resources of the local authority;officers of the police and SSPCA.A vet has inspected the land used to accommodate the animals at Willow Farm on several occasions.He also examined the animals.This is designed to be an interim measure to secure the animals welfare.During this period the local authority required to meet the costs of feeding the animals and ensuring they are properly cared for.This application now seeks a disposal order requiring that the animals are sold.The summary application was lodged at Haddington Sheriff Court on 28 February immediately following the animals being taken into care.

     

  28. Summary application procedure is designed to be simple, expeditious and inexpensive.The procedure is flexible and the sheriff has a wide discretion as to procedure and the manner in which he exercises his summary civil powers.The sheriff’s powers are, of course, subject to the statutory provisions under which the application is brought to court.Thus the procedure to be adopted is for the sheriff to determine subject to the provisions of section 34 which state:-

    Sub-section 7

    “(7)      Before making an order under sub-section (1), the court must give the owner of the animal an opportunity to make representations unless it is not practicable for it to do so.”

     

    This is an appeal by the defender against the sheriff’s interlocutor granting the disposal order for the animals to be sold which was pronounced by default due to the appellant’s failure to appear or be represented at the fifth diet of proof.

     

  29. In contrast to the sheriff in the case of Canmore Housing Association Limited v Scott 2003 SLT (Sh Ct) 68 the sheriff was aware of the reason put forward by the appellant for his absence.Again, in contrast with that case the sheriff in this case had a significant catalogue of information about the procedural history of the case and the merits of the case.The pursuers and applicants had lodged reports by the Veterinary Surgeon;affidavits from police officers, SSPCA officers and officers from the pursuers’ safer communities team.The pursuer’s inventory of productions contains a report by Andrew Barrie of Lawrie and Symington, Livestock Auctioneers Valuers and Estate Agents giving a valuation of the pigs.

     

  30. The sheriff also had two recent e-mails from the appellant and the appellant’s general practitioner with regard to his failure to attend court.The sheriff clearly had regard to the explanation tendered by the appellant and on his behalf.The sheriff also had regard to the submissions made by the council and the case of Scottish Ministers v Smith 2010 CSIH 44.The sheriff was entitled to come to the view that the report by the appellant’s GP sent by e-mail on the evening prior to the court hearing was not conclusive evidence that the appellant was unfit to attend court.It is clear from the terms of the GP’s e-mail that there had been no examination.The appellant had asked his doctor to contact the court to advise that he is unable to attend.The medical grounds are inspecific and vague and as the sheriff observes the report is not given on soul and conscience.The second report dated 27 May 2014 tendered along with the note of appeal is likewise not evidence of his state of health on 15 May.There is, again, no indication that the GP who has provided the report, examined the appellant with regard to his fitness on or around 15 May.The first paragraph of the report is informative and it states:-

    “Mr Martin has approached me for a soul and conscience letter to support his appeal against the decision made following his non-attendance at court on 15 May 2014.”

     

    Also, the medical report does not answer the question of why the appellant was not represented at the fifth proof in these proceedings.  It does not explain why the appellant did not contact the court at Haddington in advance of the hearing on 15 May if there was doubt that he was well enough to attend court.  If the appellant was seeking to rely on the evidence of witnesses such as Mr McLaren whose report was mentioned in submissions then it would be necessary for Mr McLaren to have attended at court on 15 May together with any other witnesses for the appellant.  No witnesses attended on behalf of the appellant.

     

  31. The sheriff had ample and sufficient material upon which to exercise his discretion and come to a decision as to the consequences of the appellant’s failure to appear and also the merits of the application.It is clear from the note attached to the sheriff’s interlocutor that he considered carefully the matter of appellant’s default, the explanation given and the medical report.The sheriff took into account the history of the case, the information provided by the council both with regard to the appellant’s failure to inform them of his illness or that he would be unable to come to court.The local authority had no opportunity to countermand witnesses.The sheriff was entitled to take into account information passed by the council’s solicitor from witnesses who had attended or were due to attend court that day as to their observation of the appellant’s activities on 11 and 12 May 2014 during the period when he claimed to be incapacitated.In other words it is clear to me that the sheriff has been careful to take account of all relevant factors including prejudice to both parties.

     

  32. Therefore the sheriff had regard to the medical certificate, the circumstances of the both the appellant and the local authority, the procedural history and indeed the attempts to secure resolution of the problems relating to the care of the pigs.The difficulties pertaining to the environment in which the pigs were kept had been identified by independent veterinary opinion all as stated in Articles of Condescendence 8, 18 and 21.In particular, the proof on 11 April had been discharged to allow the appellant to carry out the works necessary to make the land at Willow Rise suitable and safe for keeping pigs.Following a site inspection, postponed at the appellant’s request, the conclusion of Dr Brown the Veterinary Surgeon, was that the land remained unsuitable to accommodate any number of pigs.(Report 5/14 of process).

     

  33. Accordingly, the sheriff was entitled to grant decree in the absence of the appellant.Indeed, it was proper for the sheriff to consider all relevant circumstances including the expeditious progress of this summary application.The principal considerations for the sheriff are set out in section 38(8) of the Act and these are:-
    1. Protecting the value of any animal and
    2. Avoiding increasing any expenses which a person may be required to reimburse.

      The sheriff exercised his discretion in a proper and measured fashion.  His decision in the note attached to the interlocutor of 15 May 2014 discloses a careful assessment of the case and the substantial amount of material available to him.  It cannot be said that the appellant has demonstrated that the sheriff took into account a irrelevant factor or ignored relevant or material factors.  The sheriff has given a clear assessment of the law which he must apply and has given detailed reasons for his decision.  There can be no suggestion that his decision is perverse or plainly wrong.  The additional material available to me – such as the medical report of 27 May 2014 does not advance matters for the appellant for the reasons I have given.  I can find no fault with the sheriff’s reasoning and therefore the first ground of appeal falls to be refused.

       

  34. The remaining grounds of appeal may be dealt with together.In essence the appellant argues that the sheriff failed to have regard to section 34(8)(a) of the Act – protecting the value of the animals – and that the sheriff failed to have sufficient regard to the reports lodged by the appellant including in particular a report by Peter McLaren of Ballencrieff Pork.

     

  35. The absence of any report by Mr McLaren in process undermines entirely the second point of law for the appellant.Apart from there being no report in process, none was intimated to the respondents, East Lothian Council, nor was Mr McLaren called as a witness for the appellant on 15 May 2014.Accordingly, it goes without saying that the sheriff could not have taken Mr McLaren’s view into account as it was simply not available to him.

     

  36. Certain productions have been lodged by the appellant including a letter (undated and unsigned) from Mr Jonathan Crombie of Crombies Butchers giving an indication of the number of hotdogs that might be produced from one animal.The letter however, is of little value as it is unsigned and gives no indication of the slaughter; production and retail costs.Furthermore, the letter focusses its conclusions on one animal which had in the past generated a dead weight of around 125 kilos.There is no indication as to whether this is average or unusual.The letter is not evidence of the value of a dead pig.The appellant in his answers gives a value of £140 for a live pig, somewhat greater than that given by Messrs Lawrie & Symington who distinguish between sows; weaners and adult pigs.

     

  37. In any event, the sheriff did have regard to the statutory provisions of section 38(8) of the Act and balanced both the need to avoid further expenses with the matter of the value of the animals.The ongoing cost of looking after the animals is most likely to dwarf the value of the pigs at market even on the appellant’s valuation.Sale at Mart under the advice and guidance of established livestock auctioneers protects the market value of the animals.If the appellant considered that the dead value of the animals was the more appropriate value then a form of disposal other than sale might have been considered.However, that is not the appellant’s case and the appellant did not argue to that effect before me nor does he suggest so in his answers.

     

  38. There is, in my view, no merit in these remaining grounds of appeal for the reasons I have given.I will accordingly, refuse the appeal and make a finding that the appellant will be liable to the respondents in the expenses of the appeal.

(signed) Mhairi M Stephen