David Lionel Tongue v Royal Society for the Prevention of Cruelty to Animals and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Newey |
| Judgment Date | 12 October 2017 |
| Neutral Citation | [2017] EWHC 2508 (Ch) |
| Court | Chancery Division |
| Date | 12 October 2017 |
| Docket Number | Case No: 8170 of 2016 |
[2017] EWHC 2508 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
IN BANKRUPTCY
RE: DAVID LIONEL TONGUE
Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS
Lord Justice Newey
Case No: 8170 of 2016
The Applicant appeared in person
Mr Ali Tabari (instructed by Pickering & Butters LLP) for the First Respondent
Mr Amit Gupta (instructed by Harrison Clark Rickerbys) for the Second Respondent
Hearing dates: 13–16, 19–21 and 23 June 2017
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
In August 2006, the first respondent, the Royal Society for the Prevention of Cruelty to Animals ("the RSPCA"), removed cattle belonging to the applicant, Mr David Tongue ("Mr Tongue"), from a farm of his called Emmadale Farm. The issue in this litigation is whether the RSPCA has a claim against Mr Tongue for costs it subsequently incurred in relation to the cattle. The case involves, in particular, the law of bailment.
Narrative
Emmadale Farm is in Rowney Green in Worcestershire. It comprises about 70 acres of land and houses a large purpose-built livestock shed. The farm is straddled by a bridleway.
Until he became bankrupt, Mr Tongue was the sole owner of both Emmadale Farm and another farm, Lower Farm, Inkberrow, as well as land at Crumpfields Farm, Redditch. A further farm, Pumphouse Farm, Redditch, was owned by Mr Tongue, his brother Steven and their father, Mr Lionel Tongue.
In 1995–1996, Mr Tongue and his father were convicted in the Magistrates Court of offences of causing unnecessary suffering to cattle, contrary to section 1 of the Protection of Animals Act 1911 ("the 1911 Act"), and under the Welfare of Livestock Regulations 1994 ("the 1994 Regulations"). Fines were imposed.
On 10 January 2002, Mr Tongue, his brother and his father were all convicted in the Magistrates Court, on the prosecution of Worcester County Council ("the Council"), of causing unnecessary suffering to certain of their cattle. They were each fined and also disqualified under section 1 of the Protection of Animals (Amendment) Act 1954 from having custody of livestock for life. An appeal was dismissed by the Crown Court on 23 December 2003.
On 30 October 2002, the Tongues were all convicted, at the instigation of the Council, of causing unnecessary suffering to some further cattle and a disqualification order was once again made. The Tongues appealed, but again without success.
On 22 May 2003, all three Tongues were convicted, at the behest of the Council, of failing to comply with the disqualification orders of the previous year and given prison sentences (suspended in the case of Mr Lionel Tongue). Mr Tongue was imprisoned for 12 weeks.
The Council also, on 21 March 2003, issued civil proceedings in which it sought an injunction permitting it to remove animals from the care of the Tongues, together with ancillary relief. The matter came before Neuberger J, who held on 6 August that the cattle at Emmadale Farm and other farms were kept in breach of the disqualification orders, but that, while he would have jurisdiction to grant an injunction restraining the Tongues from having custody of any animals, there was no power in the Court to order the cattle to be taken into the possession of the Council or any other third party. Neuberger J further considered that a contention that an animal in the custody of a disqualified person should be treated as constructively abandoned could not be justified without statutory authority.
The Council appealed, but its appeal was dismissed. Peter Gibson LJ, giving the leading judgment, said (in paragraph 42):
"In truth what the Council is doing is to point to deficiencies in the present criminal law and to ask the court to make an order overcoming those difficulties. I do not doubt that local authorities have real problems when disqualified defendants continue to keep custody of animals and I have sympathy with the Council, but I do not accept that this court has jurisdiction to make the order which it seeks."
By the middle of January 2006, Mr Tongue had recruited a Mr Alan Sealey to work at Emmadale Farm as a tractor driver and stockman. Mr Sealey would visit the farm each day and, until 12 June, would at least sometimes provide the cattle there with hay and straw bedding.
On 24 May 2006, Mr Tongue, his brother and their father were all imprisoned for a year for non-payment of fines and costs.
Mr Andrew Newitt, a veterinary surgeon who was contracted to work for the State Veterinary Service, visited Emmadale Farm a number of times in the period between Mr Tongue's imprisonment and the end of July 2006. He first went there on 31 May. He found that there was "no grass in the fields", that certain of the cattle were "emaciated", that the cattle "were streaming around the farm unable to find adequate pasture" and that "[n]o attempt had been made to provide [the cattle] with supplementary nutrition, mineral licks, or fodder". When Mr Newitt returned on 2 June, "[b]ecause of starvation, the cattle were increasingly breaking down boundary fences all around the farm to break out", and 12 of the cattle were shot on welfare and/or health and safety grounds. Another 15 cattle, of whom 13 were emaciated, were slaughtered when Mr Newitt went back to the farm on 21 June. On that occasion, the stream "was no longer flowing", the ground "was bare except for bennets and thistles", the young bulls "were continuously fighting" and many of the cattle "were scouring". By 30 June, when Mr Newitt was next at the farm, "[t]here was no grazing and the pasture was browning" and the stream "had largely dried up". Further cattle were slaughtered on 6 July. 24 unidentified animals were shot under the powers set out in European Regulation EC 494/98 and 17 animals were shot because they "were deemed to be emaciated and [to] have suffered long-term organ damage from their treatment with little hope of recovery". At this point, "[n]one of the water troughs contained water", the stream "was dry except for the thin overflow stream running at the far end of the farm", the cattle "were drinking filthy water from stagnant ponds which bred biting flies" and they "were desperate for food and starving". Three more cattle were shot on 26 July, despite the opening of a small paddock. Mr Newitt observed that it was clear that the water in the tank there "had been flowing for less than 48 hours".
In all, 91 of the cattle at Emmadale Farm had been shot on the instructions of Worcestershire Trading Standards – Animal Health ("Trading Standards"), many of them since Mr Tongue had been imprisoned. The person who slaughtered the animals was a Mr Philip Smith-Maxwell, who had worked with Trading Standards for several years. He had a herd of cattle of his own at Phepson Manor, Droitwich, and Trading Standards had sometimes boarded livestock there, where it had registered a holding of its own. Mr Smith-Maxwell also operates a horse ambulance service.
On 20 July 2006, when feeding the cattle at Emmadale Farm, Mr Smith-Maxwell was attacked by a cow. He was able to escape injury only by retreating into his vehicle, which, however, was damaged by the cow's horns. Shortly afterwards, the bridleway across Emmadale Farm was closed by the Council.
By this stage, Mr Sealey had ceased to be the stockman. On 12 June 2006, Mr Andy Williams, animal health officer with Trading Standards, had warned Mr Sealey that, if he remained as stockman, he risked becoming responsible for matters such as food, vets' bills, tagging and any accidents caused by the cattle. As a result, Mr Sealey said that he would stop being the stockman. He explained in evidence that he continued to visit Emmadale Farm as tractor driver, but that he stopped feeding the cattle when he ceased to be the stockman.
By the end of July 2006, stories about Emmadale Farm were appearing in the press. The BBC, for example, reported:
"Up to 90 cows at a farm in Alvechurch, in Worcestershire, have been killed after being abandoned by their owners who have been jailed."
The article went on to state that "a further 30 [cattle] are starving to death" and that Mr Williams had said:
"There is very little we can do.
To take the animals off the farm we need a court order which would take so long it's a non starter and if we start caring for them the authority would become liable which we want to avoid.
We are monitoring the situation daily and where necessary the state veterinary service is used to humanely destroy the animals."
Having made inquiries of Mr Williams, the RSPCA decided to step in where Trading Standards feared to tread. As Chief Inspector (now Superintendent) Lee Hopgood of the RSPCA recorded in a witness statement he made in September 2006, "[d]ue to the number of cattle shot at Emmadale Farm in a 'suffering state', the fact that Trading Standards had stated no one was tending to the cattle on a daily basis and the fact that the owner, David Tongue was in prison", he "took the view that on the face of it [he] had reasonable grounds to suspect that the cattle had been abandoned, this being an offence under the Abandonment of Animals Act 1960". He accordingly told Mr Williams that he was intending to have the cattle seized.
At 7.50 am on Tuesday 1 August 2006, Chief Inspector Hopgood went to Emmadale Farm. At 8.45 am, he met PC Andrew Wright, whom he had asked to come to the property (although PC Wright said in cross-examination that he had not gone...
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