EAST LOTHIAN COUNCIL AGAINST KEVIN MARTIN
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 13
XA116/14
Lady Paton
Lord Drummond Young
Sheriff Principal Pyle
OPINION OF THE COURT
delivered by LADY PATON
in the cause
EAST LOTHIAN COUNCIL
Pursuers and respondents;
against
KEVIN MARTIN
Defender and appellant:
Pursuers and respondents: D Anderson; East Lothian Council
Defender and appellant: Party
17 February 2015
Introduction
[1] This appeal concerns a herd of pigs and a flock of hens. They were kept in a field near Haddington. The pigs frequently broke out of their enclosure, escaping into neighbouring grounds where they were uncontrolled and unprotected. The owner of the livestock appeared initially to be Shafiqul Islam, or his limited company. However the appellant is said to be the current owner, ownership having been transferred to him for convenience, as Mr Islam is often abroad in Dubai.
[2] Ultimately, on 25 February 2014, the pigs and hens were left abandoned and unfed. The appellant texted the respondents (the local authority) in the following terms:
“Just to let you know. I’ve resigned from the company that has the field and pigs. I’m now in Edinburgh as discussed. I have informed Inspector Mackay [the Community Police Inspector] of that, and now the pigs are feral. I have not had any sheriff officers at the door, so I don’t know if that means I still have to return for any court proceedings planned?”
[3] The events leading up to the abandonment included the appellant’s difficulty in complying with a bail condition imposed upon him to:
“keep the pigs and other animals under reasonable control and make diligent attempts to keep the pigs within the field known as Willow Rise [Inspector Mackay’s affidavit number 11 in the Appendices for the respondents]”
[4] The respondents then intervened, exercising their powers under the Animal Health and Welfare (Scotland) Act 2006. As noted by the Sheriff Principal in paragraph 27 of her judgment dated 30 June 2014, their reasons for doing so related to the likelihood of the pigs suffering following being abandoned; the pigs escaping due to inadequate fencing; the land being unsuitable to accommodate them; and some concerns about public safety when the pigs escaped. Accordingly on 26 February 2014, the respondents took the pigs and hens into their care in terms of section 32 of the 2006 Act. That exercise involved officers of the respondents, the police and the SSPCA. Further, on 28 February 2014, the respondents made a summary application to Haddington Sheriff Court, seeking an order under section 34 entitling them to sell the pigs and hens, and (after deduction of expenses) to remit any balance to the appellant. The appellant opposed the application, and lodged defences contending that the livestock should be returned to him.
[5] The respondents instructed a vet to examine and report on the pigs’ accommodation. The vet’s initial report dated 9 April 2014 condemned the area as “clearly unsuitable for the housing of pigs”. The appellant obtained a continuation of a diet of proof in order to make certain alterations to the field. However in further reports dated 24 April 2014 and 12 May 2014, the vet expressed continuing concerns, particularly in relation to fencing, water supply, and a pig housing area. He concluded that “the site as presented remains unsuitable for any number of pigs”.
The legislation
[6] The Animal Health and Welfare (Scotland) Act 2006 provides inter alia as follows:
“32 Taking possession of animals
(1) An inspector or a constable may, if it appears that a protected animal is suffering –
(a) take, or
(b) arrange for the taking of,
such steps as appear to be immediately necessary to alleviate the animal’s suffering …
(2) If a veterinary surgeon certifies that a protected animal is –
(a) suffering, or
(b) likely to suffer if its circumstances do not change, an inspector or a constable may take possession of the animal …
(6) Where possession is taken of an animal…an inspector or a constable may
(a) remove the animal, or arrange for it to be removed, to a place of safety,
(b) care for the animal, or arrange for it to be cared for …
34 Disposal orders where animals taken
(1) The court may, in relation to any animal taken into possession under section 32, order – …
(c) that the animal be – …
(ii) sold …
(3) An order under subsection (1) may be made on summary application by – …
(c) an inspector …
(4) A person [including the owner] is entitled to be heard in relation to an application for an order under subsection (1) …
(7) Before making an order under subsection (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.
(8) In determining whether or how to make an order under subsection (1), the court must have regard to the desirability of –
(a) protecting the value of any animal to which the order applies, and
(b) avoiding increasing any expenses which a person may be required to reimburse …”
Proceedings in the sheriff court
[7] The case came before the sheriff on several occasions. As recorded by Sheriff Braid at pages 3-4 of the note to his interlocutor of 15 May 2014:
“The first diet on 19 March 2014 had been unable to proceed because Mr Martin claimed that the pigs were owned by a limited company. The Council then sought to serve papers on that company and its director, Mr Islam, but were unable to do so. At the second diet on 4 April, Mr Martin purported to be a lay representative for Mr Islam, who was not present. It was pointed out to him by the presiding sheriff that that was not competent in the absence of Mr Islam. A firm of solicitors, Johnson Legal, confirmed that day that they acted for Mr Islam and would accept service of any papers. A fresh proof was fixed for 11 April. On 10 April, Mr Martin lodged among other things a letter from Johnson Legal stating:
‘[Mr] Islam has instructed me by email dated 9.4.2014 that he has transferred ownership to you of all the pigs he owned [at] Willow Farm’
The proof on 11 April did not take place because Mr Martin intimated that he wanted the pigs back and was willing to carry out certain works to make his premises suitable for the pigs to return to. A fresh proof was fixed for 25 April. Mr Martin did not attend a planned site visit on 23 April, saying he needed more time. On 24 April a joint site visit did take place, at which Mr Martin (allegedly) was aggressive and agitated. On 25 April, the proof could not take place due to lack of court time, and today’s diet was fixed. Mr Martin was told by the presiding sheriff that he should lodge any documents upon which he wished to rely and ensure that any witnesses he wished to call were present. In terms of court procedure, Mr Martin has done nothing since 25 April.”
The appellant’s position is that most of the postponements were not attributable to him or his actions.
[8] The diet fixed for Thursday 15 May 2014 was thus the fifth proof diet. In preparation for the diet, the respondents cited eight witnesses (all of whom attended on the day of the proof), and also lodged numerous productions including affidavits and a valuation by Lawrie & Symington. On the information available to this court, it appears that the appellant cited no witnesses although he lodged some productions, for example, a letter (undated and unsigned) from Crombies butchers in Edinburgh, and a document entitled “Guidance on the keeping of wild boar”.
[9] The day before the hearing, the appellant telephoned the sheriff court to say that he would be unable to attend court on 15 May 2014. The appellant’s GP e-mailed a letter to the court, stating inter alia:
“Mr Martin has asked me to contact you to advise that he is unable to attend court tomorrow on medical grounds.
I can confirm that he is suffering from a medical condition that prevents him from sitting or standing for any period of time.”
The letter was not given on soul and conscience, and, as was pointed out by the sheriff at page 6 of his note,
“In addition to failing to specify the nature of Mr Martin’s condition, how long he has suffered from it, and when he is likely to recover from it, the doctor signally fails to say that Mr Martin is unable to attend court today. She simply states that he is unable to sit or to stand for any period of time, which is not the same thing. Doubtless, had Mr Martin attended, his discomfort in sitting or standing for any period of time could have been accommodated (for example, by allowing him to stand and sit alternately, or by frequent adjournments).”
[10] At 9 am on Thursday 15 May 2014 the appellant sent a personal e-mail to the court, apologising for his non-attendance and explaining that he had been suffering “since Friday past” (i.e. Friday 9 May 2014) from a recurring medical illness, as a result of which he could not stand upright, let alone walk. He confirmed that his GP had been unable to visit his home in order to examine him. During the hearing the sheriff was advised (page 4 of his note) that, although the appellant claimed to have been ill since Friday, he had been seen on the evening of Sunday 11 May 2014 on the roof of the pig enclosure at the site, and a neighbour had also seen him driving on Monday 12 May 2014. (In the appeal before us, the appellant did not deny being seen as described, but pointed out that his condition varied in severity from one period to another.)
[11] The sheriff took into account the appellant’s e-mail; the GP’s letter; the history of the case; and the submissions made to him. For the reasons given in his note (page 7), he decided not to appoint a peremptory diet but to proceed with the application in the absence of the appellant. He then considered the merits of the respondents’ application. As the Sheriff Principal notes at paragraph 29 of her judgment:
“… the sheriff in this case had a significant catalogue of information about … 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 pursuers’ inventory of productions contains a report by Andrew Barrie of Lawrie & Symington, Livestock Auctioneers Valuers and Estate Agents, giving a valuation of the pigs.”
[12] The sheriff ultimately granted the respondents a disposal order under section 34, appointing the respondents:
“(a) to sell the pigs, after taking advice from Lawrie & Symington as to the best method of sale in order to achieve their value on the open market; (b) to sell the hens at the Poultry Market in Lanark; and (c) to pay the resultant sale proceeds to the defender under deduction of any reasonable sums due to the pursuers under section 32(11) and section 34(3) of the Act.”
[13] The appellant appealed to the Sheriff Principal. An appeal hearing took place on 19 June 2014. In preparation for the hearing the appellant lodged a letter from his GP dated 27 May 2014, stating:
“Mr Martin has approached me for a soul and conscience letter to support his appeal against a decision made following his non-attendance at court on 15th May 2014.”
The doctor then explained that Mr Martin was suffering from a fairly common but painful local condition, details of which she gave.
[14] For the reasons given in her opinion dated 30 June 2014, the Sheriff Principal refused the appeal. The appellant then appealed to the Court of Session.
Proceedings in the Court of Session
[15] The appeal hearing took place on 8 January 2015.
The appellant’s note of argument
[16] The appellant contends that the sheriff “erred in law in unreasonably exercising his discretion by granting various orders under section 34” of the 2006 Act. In particular:
- The medical letter was sufficient.The sheriff ought to have discharged the proof on 15 May 2014 and assigned a fresh date.
- The sheriff gave no weight to a letter from Crombies butchers, Edinburgh.That letter demonstrated that 2,500 hot dogs could be obtained from each pig (i.e. 2,500 @ £2.50 each), resulting in a valuation of the herd of pigs much in excess of that given by Lawrie & Symington (viz £1,050).
- The issue of valuation was important in the context of section 34(8)(a) and (b).
In the result, the sheriff’s decision should be overturned, and the matter remitted back to the sheriff court for an evidential hearing on the merits of the application.
The respondents’ note of argument
[17] The respondents contend that an appellate court may not interfere with the decision of the inferior court unless it is satisfied either that the judge exercised his discretion upon a wrong principle, or that, his decision being so plainly wrong, the judge must have exercised his discretion wrongly. The sheriff had not erred in the exercise of his discretion (a) to consider the case in the appellant’s absence; or (b) to grant the order sought by the respondents under section 34 of the 2006 Act. The appeal should be refused.
Discussion
The terms of the legislation
[18] Section 34(7) of the 2006 Act provides:
“Before making an order under subsection (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.”
We agree with counsel for the respondents that the owner of the pigs and hens is entitled to be given the opportunity to make representations, but that does not mean that he has an inviolable right to make such representations before an order is granted. Indeed there may be circumstances where it is not practicable to offer the owner an opportunity to make representations. We also agree with counsel for the respondents that the obligation contained in section 34(7) has been fulfilled in the present case. The appellant lodged written defences; addressed the court at several hearings; and was aware that the fifth proof diet was to take place on 15 May 2014.
The summary nature of the proceedings
[19] The present proceedings are a summary application under the 2006 Act. In terms of section 50 of the Sheriff Courts (Scotland) Act 1907, the sheriff is obliged inter alia summarily to dispose of matters raised in this way. In terms of rule 2.31 of the Summary Applications Statutory Applications and Appeals etc Rules 1999, the sheriff is entitled to make such order as he thinks fit for the progress of a summary application insofar as it is not inconsistent with section 50 of the 1907 Act. The sheriff has a wide discretion so far as procedure is concerned (Jamieson, Summary Applications and Suspensions, paragraphs 2-19, 30.20 to 30.21). In this case we consider that the sheriff, having taken into account Canmore Housing Association Limited v Scott 2003 SLT (Sh Ct) 68 (pages 5 to 7 of his note), was entitled to decide, in the circumstances of this case, not to appoint a peremptory diet, but to proceed with the application in the absence of the appellant.
The court’s discretion when deciding whether to adjourn
[20] While the court was fully entitled to proceed (see paragraphs [18] and [19] above), the court had a discretion whether or not to adjourn the case in the light of the e-mailed correspondence from the appellant and his GP. The decision was one for the sheriff. In the present case, previous proof diets had been unable to proceed. By the time of the fifth proof diet on 15 May 2014, the pigs and hens had been in the care of the respondents since 26 February 2014. The sheriff was advised that the cost of their upkeep was about £500 per week, with total costs to the date of the fifth proof diet being over £4,000 (sheriff’s note page 4). The GP’s letter was not “on soul and conscience”. The GP did not state that it was her professional opinion that the appellant was unable to attend, but simply passed on a message from the appellant that he was unable to attend. The appellant’s own e-mail of 15 May 2014 did not state that he was medically unfit to attend, and in fact made it clear that he had not been examined by a doctor as at 15 May 2014. The sheriff was advised (page 4 of his note) that, although the appellant said in his e‑mail that he had been ill since the previous Friday, he had been seen on the evening of Sunday 11 May 2014 on the roof of the pig enclosure at the site, and a neighbour had also seen him driving on Monday 12 May 2014. Having considered all the circumstances, the sheriff ultimately reached the view that the hearing should proceed. Bearing in mind the guidance given as to the exercise of such discretion in Britton v Central Regional Council 1986 SLT 207; Bellenden v Satterthwaite [1948] 1 All ER 343 at page 345B; Macphail, Sheriff Court Practice (3rd ed) paragraphs 18.111-18.112; and The Scottish Ministers v Smith 2010 SLT 1100, paragraphs [5] – [7], the sheriff’s conclusion cannot, in our view, be criticised. The subsequent letter dated 27 May 2014 from the GP is arguably irrelevant to the question of the sheriff’s discretion as exercised on 15 May 2014. But even if its contents are taken into account, we are not persuaded that the sheriff could be said to have erred, for the reasons given by the Sheriff Principal in paragraph 30 of her judgment dated 30 June 2014 (with one qualification, namely that the appellant, as we understood him, advised us that his GP had examined him in order to write the letter of 27 May 2014).
The merits of the summary application
[21] In our view the sheriff was, on the basis of the material before him, entitled to be satisfied that the terms of section 32 of the 2006 Act had been complied with, and that he had power to make a disposal order in terms of section 34. In making the order, the sheriff expressly had regard to the desirability of (a) protecting the value of the pigs, and (b) avoiding increasing any expenses which might require to be reimbursed. As for the letter from Crombies butchers, Edinburgh, we agree with all the observations made by the Sheriff Principal in her judgment at paragraph 35. A further letter mentioned by the appellant, from Peter McLaren of Ballencrieff Pork, had not been lodged in process and could not, therefore, be taken into account by the sheriff. In any event, the obligation in section 34(8) – “to have regard to the desirability of … protecting the value of [the pigs]” – seems to us not to be restricted to ascertaining their actual value at any particular time (as the sale price achieved at auction should prima facie be the most accurate method of ascertaining their current market value), but rather to be directed to making an order whereby the pigs would (a) be properly cared for such that their general condition (and thus their value) would not deteriorate; and (b) be sold in such a way that the animals’ proper market value would be realised. In granting the orders he did, the sheriff clearly fulfilled the terms of section 34(8): see page 8 of the sheriff’s note. The fact that a letter from Crombies arguably contained a different valuation from that of Lawrie & Symington is, in our view, irrelevant.
Conclusion
[22] In the result, for the reasons given above, we are not persuaded that there is any merit in this appeal.
Decision
[23] We refuse the appeal and continue any question relating to expenses.