𝗝𝘂𝘀𝘁𝗶𝗰𝗲 𝘂𝗻𝗹𝗲𝗮𝘀𝗵𝗲𝗱!

Charlotte Davies (2007) has recently succeeded for two clients in disputes relating to what should happen to the family dog post breakdown of relationships. Both claims were brought under the Torts (Interference with Goods) Act 1977. In both cases, Charlotte acted for the Defendants who were both successful in keeping their pets (in the first case, successful on appeal).

GH v CG

The first case related to a border collie which had stayed with the Defendant post-breakdown of the relationship:

𝗙𝗶𝗿𝘀𝘁 𝗶𝗻𝘀𝘁𝗮𝗻𝗰𝗲: the D claim for a “pet sharing arrangement” – something that the court has no jurisdiction to order. At trial it was quickly established that the only remedies open to the court were those under s.3 Torts (Interference with Goods)Act 1977. The Claimant argued that he had paid 50% of the purchase price but the judge found as a fact that this was not the case. The judge further found that the Defendant had paid “the lion’s share” of all of the dog’s needs and “there was nothing to suggest a 50/50 split of expenses”. Any “occasional contribution” made by the Claimant was because “the parties were in a relationship”. Despite these findings, the judge went on to find that the dog was jointly owned by the parties, primarily because “the parties were in a couple”. He then ordered a payment in damages, assessed as being half of the dog’s full market value, by the Defendant to the Claimant to reflect the wrongful interference of keeping the dog from the Claimant to date. The judge then told the parties that they would need to mediate to come to a suitable sharing arrangement.

The Defendant appealed the decision. Permission was granted on paper.

𝗔𝗽𝗽𝗲𝗮𝗹: the Defendant(now Appellant) argued that the judge had erred in law in finding co-ownership, having found that the dog was purchased solely by the Appellant. In law the dog is a chattel and the Appellant argued that the judge had conflated the parties’ relationship with co-ownership. Alternatively, the Appellant argued that when addressing remedy, the judge had entirely failed to consider s.5 of the 1977Act which acted to automatically extinguish ownership (upon payment) where a party had been ordered to pay the full market value of the share of the chattel determined to be owned by the receiving party. In apparently refusing to extinguish the Respondent’s half-share, he had left the dispute unresolved(telling the parties to mediate), risking a perpetual state of interference. In so far as it was necessary to consider an improper exercise of discretion under s.5(5), the Appellant relied on the Court of Appeal case of Sharmav Plumridge [1991] 5 WLUK 257.

𝗢𝘂𝘁𝗰𝗼𝗺𝗲: the appeal succeeded on all grounds. The matter was not remitted but the order was substituted for one dismissing the claim on the basis that it was an error of law to find co-ownership in the first instance. The other grounds succeeded for good measure.

EK v MH

The second case involved a black Labrador which the Claimant argued had been a gift to her but which had stayed with the Defendant post breakdown of the relationship.

Facts: the Claimant brought proceedings against the Defendant claiming interference under the Torts (Interference with Goods Act) 1977 in that the Defendant had possession of the dog which she said was purchased by the Defendant as a gift for her. The Claimant argued that a handwritten”gift voucher” the Defendant had given her over a year prior to the purchase of the dog was evidence of the parties’ intention that the dog would belong to the Claimant. The Defendant argued that the “gift voucher “was insufficient to establish the later gift because the terms on the face oft he “voucher” were too uncertain and did not extend to a £2,000.00puppy, and further that the passage of time between the “voucher” and the purchase broke the connection between the two events. There was no dispute that the Defendant had paid the full purchase price for the puppy and the Defendant argued that the puppy was bought for himself and that he was the sole owner. The parties had separated almost 18 months prior to the hearing, and the dog had remained living with the Defendant.

Submissions: The Claimant argued that if the court found that the puppy had been a gift to the Claimant then that is the end of the matter and delivery up should be ordered. The Defendant argued that even if gift was found proven, the remedies available under the Torts (Interference with Good) Act 1977 were discretionary and given the dog had lived with the Defendant its entire life, and solely for the past 18-months, the court should exercise that discretion to extinguish the Claimant’s legal ownership and vest it in the Defendant, with an award of damages if appropriate, such award of damages being entirely adequate given the law considers pets to be chattels. Charlotte again relied on the Court of Appeal case of Sharma v Plumridge [1991] 5 WLUK 257 given that the length of time the dogs in that case had been with their new” owners” was considered a relevant factor. The Claimant argued that the Defendant should not be able to benefit from the time he had deprived the Claimant of the dog and rely on that as a reason as to why it should not now be returned.

Decision: The court found as a fact that the puppy had been a gift for the Claimant, being satisfied on the evidence that this was the intention of the parties. As such, the judge found legal ownership vested in the Claimant. However, in applying remedy under s.3 of the Act, the judge exercised her discretion and refused to order delivery up to the Claimant and agreed with the Defendant that the dog should stay with him, ordering that he pay the Claimant the sum of £2,000.00 in damages (that being the only evidence of value before the court). The reasons the judge gave in exercising her discretion in such away was that the dog’s ‘primary residence’ its whole life had been with the Defendant and there was no suggestion that it was not well looked after and happy. Dogs are chattels in law and therefore damages were an adequate remedy. Permission to appeal was refused by the first instance judge.

Conclusion

Both cases demonstrate the complexities in the application of the law to cases involving pets following the breakdown of relationships. Even where legal ownership is established, it is far from certain that this will result in return of the animal. The discretion afforded to judges under the1977 Act is wide and it appears that where a pet has been living with the other party for some considerable time this is very much a compelling factor for refusing delivery up.

With the Pet Abduction Act 2024 which came into force last year recognising pets as ‘sentient beings’ rather than ‘property’ (theft of a pet was previously dealt with like any other property under the Theft Act 1968) and other jurisdictions now changing their law (Canada amended its Family Law Act last year to recognise pets as family members rather than possessions, and when deciding who should keep the pet, the focus is now on who has provided the care for the animal and the relationship of the animal with the family members), it may be that the way our law deals with pets when relationships break down needs to be reappraised.

Charlotte has a busy civil practice, with specialist areas that include property and contractual matters. If you wish to discuss anything in this article or you want to instruct Charlotte you can contact her clerk on jamie@kbgchambers.co.uk.