Worcestershire County Council v Tongue
| Jurisdiction | England & Wales |
| Judge | Lord Justice Chadwick,Lord Justice Peter Gibson,Sir Martin Nourse |
| Judgment Date | 17 February 2004 |
| Neutral Citation | [2004] EWCA Civ 140 |
| Docket Number | Case No: A1/2003/1878 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 February 2004 |
[2004] EWCA Civ 140
Lord Justice Peter Gibson
Lord Justice Chadwick and
Sir Martin Nourse
Case No: A1/2003/1878
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Sitting in the Birmingham District Registry)
Neuberger J.
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr. Roger Henderson Q.C. and Mr. David Watson (instructed by Worcestershire County Council Legal Services) for the Appellant
Mr. Timothy Clarke (instructed by Messrs Sampson & Co of Redditch) for the 1 st Respondent
Stephen Tongue and Harold Tongue were unrepresented and appeared in person
Peter Gibson L.J.:
For some time it has been recognised that a local authority may seek the assistance of the civil courts to enforce the criminal law by way of an injunction to stop the flouting of that law. By these proceedings the Claimant, Worcestershire County Council ("the Council"), is seeking to go further than that to obtain an injunction restraining a breach of the criminal law. In circumstances in which the Defendants, Lionel Tongue and his sons David and Stephen (together "the Tongues"), have been convicted of offences of cruelty to some of their cattle and have been disqualified by the magistrates court from having custody of cattle for the rest of their lives, the Council asked the Chancery Division for an order authorising the Council to go onto the Tongues' land and remove all the cattle there. Neuberger J. at the trial of the action held, with some regret, that the court did not have jurisdiction to make such an order. With the permission of the judge the Council now appeals. The Tongues seek an extension of time in which to cross-appeal on the order made by the judge on costs, viz. that there be no order for costs. We indicated that we would deal with that after we had given judgment on the appeal.
The facts
The Tongues farm 6 farms in the Redditch area of Worcestershire. Crumpfields Farm (where they live) and Boxnott, Emmerdale, Inkberrow, Pump House and White House Farms. Save for Boxnott Farm, which is rented by Lionel Tongue, the freeholds of the farms are owned by one or more of the Tongues. A large part of the Tongues' farming activities has involved the keeping and rearing of cattle.
Cattle were kept on all the farms. The judge found that 110 were at Emmerdale Farm, 64 at Inkberrow Farm and 8 at Pump House Farm at the time of his judgment. About 60 more were at Crumpfields, Boxnott and White House Farms at the time when His Honour Judge Norris Q.C. made an interlocutory order on 27 March 2003. It was David Tongue's case before Neuberger J. that the cattle at Emmerdale, Inkberrow and Pump House Farms were owned by him until shortly before 27 November 2002 when a disqualification order against him took effect. He claimed before the judge that he had made a gift of the cattle to his girlfriend, Allison Green, as evidenced by a manuscript document dated 7 November 2002 by which he certified that he had transferred ownership of his cattle to Ms. Green, and she signed a consent to having taken custody of animals and to their transfer.
David Tongue also granted a series of tenancies to Ms. Green of each of Inkberrow and Emmerdale Farms. Each of the first two tenancies was for a term of one month and for a rent of £500. The rent was never paid. The third tenancy of each farm was for three months from 26 January 2003 and the fourth for five months from 27 April 2003. No rent was reserved by the third and fourth tenancies of each farm.
A neighbouring farmer, Graham Hughes, agreed to purchase from Ms. Green 11 of the cattle at Inkberrow Farm. Six were transferred to Mr. Hughes for £4,185. Five remained at Inkberrow Farm. The judge found no other binding agreement for the sale of cattle to Mr. Hughes.
On 10 January 2002 each of the Tongues was convicted at Bromsgrove and Redditch Magistrates Court, on the prosecution by the Council, of the offence, contrary to s. 1 of the Protection of Animals Act 1911 ("the 1911 Act"), of causing unnecessary suffering to four of their cattle. They were fined and in addition each was disqualified under s. 1 of the Protection of Animals (Amendment) Act 1954 ("the 1954 Act") from having custody of animals (other than cats and dogs) for the rest of his life, but that order was stayed pending the appeal. That appeal was dismissed by the Crown Court on 23 December 2003.
On 30 October 2002, again on the prosecution of the Council, each of the Tongues was convicted at the same court of the offence of causing unnecessary suffering to between six and nine further cattle, and each received a disqualification order for life. That order was suspended but the suspension expired on 27 November 2002. Again the Tongues appealed. Again the Crown Court dismissed the appeal on 23 December 2003.
Officers of the Council's Trading Standards Services have visited the Tongues' farms on a number of occasions since 27 November 2002. As a result of what they saw the Council commenced two sets of proceedings. By the first, the Tongues were brought back before the Magistrates Court for failing to comply with the disqualification orders. On 30 April 2003 each of the Tongues was convicted. David Tongue was imprisoned for 12 weeks, Stephen Tongue for six weeks and Lionel Tongue was given a suspended prison sentence of 12 weeks. By the second, the Council on 21 March 2003 commenced civil proceedings in the Chancery Division, Birmingham District Registry. The Council pleaded that it was responsible for maintaining the welfare of animals in Worcestershire, and it pleaded the convictions obtained on 10 January and 30 October 2002 and the disqualification orders. It also averred that the Tongues continued to keep animals and had refused to give up any of them and that many of the animals in the keeping of the Tongues were in such condition that they were suffering unnecessarily. The relief sought was an injunction to permit the Council to remove the animals from the care of the Tongues, together with such ancillary orders as might be necessary for that purpose.
The Council applied for interlocutory relief until the disposal of the action. That without notice application came before Judge Norris on 27 March 2003. He made an order until 31 March 2003 which included that
(1) the Council was permitted to enter onto the land of the Tongues for the purpose of removing livestock;
(2) the Council was permitted to remove livestock from the land of the Tongues and to place that livestock with a competent owner;
(3) the Tongues were forbidden from obstructing the removal of the livestock; and
(4) the Tongues were forbidden from interfering with the keeping at a different location of livestock removed from their premises.
There was a with notice hearing of the application on 31 March. The Tongues in effect conceded that the cattle at Crumpfields, White House and Boxnott Farms were in their custody in breach of the disqualification orders. There was produced to Judge Norris what Neuberger J. was to describe as cogent evidence that the cattle were in a sorry state. However the Tongues did not accept that the cattle at Emmerdale, Pump House and Inkberrow Farms were in their custody or ownership and so Judge Norris directed that the Council's claim in respect of those cattle should be heard at the trial. He made an order limited to those cattle in form similar to the order made on 27 March save that he included an injunction forbidding the Tongues from keeping or being involved in the keeping of any livestock at Inkberrow, Emmerdale or Pump House Farms.
The action was tried by Neuberger J. with witnesses giving oral evidence. On 6 August 2003 he gave judgment. He held that the cattle at Emmerdale, Pump House and Inkberrow Farms were kept in breach of the disqualification orders, one or more of the Tongues having custody of the cattle. He also held that none of the cattle was truly transferred to Ms. Green and that the purported transfer was "a put-up job". But on the question whether the court had jurisdiction to make the order sought by the Council, the judge, after reviewing the authorities, held that the court had no jurisdiction. He said that he would have jurisdiction to grant an injunction restraining the Tongues from having custody of any animals and in particular the cattle the subject of the action. However, he continued (in para. 71 of his judgment) :
"Nevertheless, in this case the Council is seeking more than an order enjoining the defendants from having custody of animals. It is seeking an order entitling agents of the Council to go onto the defendants' land and remove their cattle. The fact that although the defendants may be committing an offence in that they are in breach of the order forbidding them to have custody of any animals, it remains the fact that the cattle are on the defendants' land and are the property of the defendants. In my view, in the absence of the Council having some sort of right in respect of the cattle, whether under the Animals Acts, the order of the Magistrates Court, or on some other basis, there is simply no power in this court to order the cattle, which are the property of the defendants and on their land, to be taken into possession of a third party, even if it is the Council."
The judge also considered the Council's argument that as a result of general powers and duties as a local authority with regard to animals and in the light of the disqualification orders it had sufficient power and duty in...
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