Guildford Borough Council v Hein

Dr Helen Hein, who is now aged 76, has lived at Amberwell, Newlands Corner, near Guildford since December 1963. Those are freehold premises of an area of about 1.9 acres, which in March 2003 were described as including a dilapidated house used to house dogs, together with some ten to twelve sheds or pens in which dogs were also kept. Since about 1965 Dr Hein has kept German Shepherd dogs on the premises. At one time she had as many as 140 and in 1999 about 100. In February 2001 there were 48 dogs on the premises. We have been told that there are now eleven adults and four puppies.

Over a period of more than 20 years Dr Hein has been in trouble, much of it serious, with Guildford Borough Council (the responsible local authority), the Royal Society for the Prevention of Cruelty to Animals (RSPCA) and the Royal College of Veterinary Surgeons (RCVS). She has been convicted on some eight occasions under the Breeding of Dogs Act 1973 (the 1973 Act) or the Protection of Animals Acts 1911-1988. It will be necessary to consider those convictions and other matters relied on by the Council in some detail. At this stage it is enough to say that in August 2003 there expired two orders disqualifying Dr Hein from having custody of dogs, the result of which was that the Council became liable to return to her some 26 dogs which they had removed from her custody in December 2001. Dr Hein has been seeking their return ever since.

Being apprehensive that the return of the dogs to Dr Hein would very likely lead to her commission of further offences, and after the rejection by her of certain proposals made by the Council in a letter before action, on 9 January 2004 they commenced proceedings in the High Court under s.222 of the Local Government Act 1972, claiming an injunction restraining her from keeping any dogs at Amberwell and a declaration that they were entitled to sell or dispose of the dogs in their possession, together with damages representing the cost of keeping the dogs since August 2003, and costs. The key allegation in the Council’s particulars of claim was that Dr Hein had:

“over the past 10 years, demonstrated a determination to avoid compliance with legislation which affects her care, ownership, possession and management of dogs. [The Council] are concerned that the Defendant’s dog breeding, and other activities at Amberwell, will not be curbed by further prosecutions and that it is in the public interest that she be restrained from keeping dogs at Amberwell.”

The proceedings having been transferred to the Guildford County Court, they came on for trial at Epsom before His Honour Michael Cook, sitting as a deputy circuit judge, in the last week of October 2004, when the Council were represented by Mr Jeffrey Widdup and Dr Hein appeared in person. The judge had before him statements by seven witnesses on behalf of the Council, their two principal witnesses being Mr P.J. Burnage, whom they had employed as a dog warden since November 1998, and Mr Jeremy Gray, whom they had employed as a nuisance investigation officer since July 2000. Three of the other witnesses were resident employees of the Manor House Hotel at Newlands Corner, a property about a hundred yards or more away, who gave evidence as to the barking and yelping of dogs at Amberwell. Miss Nicola Thompson, from Ickenham in Middlesex, who had developed an interest in German Shepherd dogs and gave Dr Hein voluntary help with her dogs between July 2002 and April 2003, also gave evidence. Finally, Mr R.J. Scott, from Eridge in Sussex, who had known Dr Hein since 1977, gave evidence as to the numbers of dogs at Amberwell between July 2003 and September 2004 and the conditions in which they lived. All these witnesses, except Mr Scott, gave oral evidence and were cross-examined, to a greater or lesser extent, by Dr Hein. She was the only witness on her side. She did not put in a witness statement, but was asked questions by the judge and then cross-examined at some length by Mr Widdup.

The judge delivered his judgment on 28 October 2004. By his order made that day he granted an injunction, to have effect from 28 January 2005, restraining Dr Hein from keeping any dogs at Amberwell, save that she should be entitled to keep no more than three dogs, if those dogs were of the same gender. That was what had been proposed in the letter before action. The judge also made a declaration that, unless Dr Hein, by the same date, provided the Council with a suitable address or addresses (other than Amberwell) to which the dogs in their keeping could be delivered, she would relinquish ownership of those dogs and the Council should be entitled as bailee to sell or dispose of ownership of them and to account to Dr Hein for the net proceeds of sale. He dismissed the Council’s claim for damages. He ordered the Council to permit and facilitate Dr Hein to visit the dogs in their custody on at least one occasion. He gave permission to either party to appeal. He ordered Dr Hein to pay the Council 80% of their costs of the action.

Both sides appealed: Dr Hein against the injunction, the declaration and the order for costs; the Council against the dismissal of their claim for damages. In this court the Council have again been represented by Mr Widdup. Dr Hein has been represented by Mr Jeffrey Jupp at the request of the Bar Pro Bono Unit, though effectively instructed by Mr Paul Grimwood of Messrs. Hart Brown, solicitors of Guildford, who, though not on the record, have provided Mr Jupp, again on a pro bono basis, with all the support that would customarily have been provided by an instructing solicitor. The court wishes to record its thanks for the invaluable assistance given to it, and indeed to Dr Hein, by Mr Jupp and by Mr Grimwood and his firm.

Before reference is made to the relevant statutory provisions and principles of law it is necessary to complete a rehearsal of the facts by enumerating the convictions and other matters on which the Council relied before the judge. The convictions, all of them in the magistrates’ court, were the following:

The other matters relied on by the Council were the following:

Finally, it is necessary to record that on 13 June 2002 Lightman J, sitting in the Administrative Court, refused an application by Dr Hein for permission to proceed with an application against the Council for judicial review, but on an undertaking by the Council:

“not to make any arrangements for the care of the German Shepherd Dogs (namely those delivered up to them by the Claimant under the order of Guildford Magistrates Court on 7 December 2001) which prevent the eventual return of the dogs to the Claimant when she is lawfully entitled to have custody of them”

That undertaking still stands and it seems clear that the arrangements made by the Council for the care of the 26 dogs have duly complied with it. We have been told that 17 are currently in kennels at the expense of the Council (see below) and that nine are in private homes free of charge, except that the Council has assisted with veterinary bills for some of them.

Section 222 of the Local Government Act 1972, so far as material, provides:

“(1)

Where a local authority consider it expedient for the promotion or protection of the interests of the inhabitants of their area –

a)

they may prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings, may institute them in their own name …”

It was established by the decision of the House of Lords in Stoke-on-Trent City Council v B&Q (Retail)Ltd [1984] AC 754 that s.222(1) confers on a local authority power to institute and maintain proceedings to enforce obedience to the criminal law within their district, being a power additional to the power at common law enabling the Attorney-General to proceed in such matters either ex officio or by relator action. In that case the defendants had been trading on Sundays in breach of s.47 of the Shops Act 1950, which, by s.71(1) imposed on every local authority the duty to enforce within their district the provisions of that Act. It was held that, in proceedings commenced by the responsible local authority under s.222(1), the court had jurisdiction to restrain the commission of further breaches of s.47 by the grant of an injunction. At the time the injunction was granted by the High Court the maximum fine was £50 for the first offence and £200 for every subsequent offence, amounts which, as Lord Templeman said, at p.776, were substantially less than the profits which could be made from illegal Sunday trading.

Since that decision the circumstances in which an injunction can and ought to be granted at the suit of a local authority have been explored in a number of decisions of this court, including City of London Corporation v Bovis Construction Ltd (18 April 1988) [1992] 3 All ER 697, where, at p.714, Bingham LJ, in considering the earlier authorities, stated the guiding principles to be:

“(1)

that the jurisdiction is to be invoked and exercised exceptionally and with great caution …

(2)

that there must certainly be something more than mere infringement of the criminal law before the assistance of civil proceedings can be invoked and accorded for the protection or promotion of the interests of the inhabitants of the area…

(3)

that the essential foundation for the exercise of the court’s discretion to grant an injunction is not that the offender is deliberately and flagrantly flouting the law but the need to draw the inference that the defendant’s unlawful operations will continue unless and until effectively restrained by the law and that nothing short of an injunction will be effective to restrain them. …”

The manner in which the third of those principles was expressed took account of the view adopted in the Stoke-on-Trent case, that the “something more” that was required was a deliberate flagrant and flouting of the criminal law.

In applying the principles to the present case, it is important to emphasise that the majority of Dr Hein’s convictions were under the 1973 Act and did not involve offences of cruelty. Her only convictions for such offences (para 7(5) above) were on 19 March 1996, and Mr Widdup accepted in argument that the cruelty involved in them may have been inadvertent. Certainly, there has been no suggestion of any further offences of cruelty, and it would be wrong to posit a real possibility of any further convictions under the Protection of Animals Acts. Moreover, Dr Hein’s last conviction under the 1973 Act was on 5 November 2001, and the judge made a finding that there had been no complaints about, or proceedings against, her since that date. Accordingly, whatever might be said about the period prior to that date, there has been no subsequent flouting of the law, and it must at the least be questionable whether it ought to be inferred that Dr Hein will continue to commit offences under the 1973 Act unless restrained by injunction.

The judge recorded that in cross-examination Dr Hein was adamant that she would not recommence her dog breeding business without a licence. She referred in evidence to a stroke she had suffered in July 2003, the effect of which on her ability to run such a business was still uncertain. The judge thought it most unlikely that she would be granted a licence, if she applied for one. So if the 26 dogs were now to be returned to her, she would have to make arrangements for all of them (37 adults and four puppies) which ensured that she could not again be prosecuted for keeping an unlicensed breeding establishment. If she did offend again, she could hardly expect to be treated leniently by the magistrates. While her answers in cross-examination appear to have been variable and at times contradictory, it seems that her 100 hours community service and the two months’ imprisonment, suspended only on appeal, may have had, and may continue to have, a deterrent effect.

In the circumstances, and bearing in mind that the jurisdiction is to be invoked and exercised exceptionally and with great caution, I would hold that the judge ought not to have granted an injunction in this case. Although Dr Hein has a bad record of convictions under the 1973 Act, it has not been satisfactorily demonstrated either that she is likely to re-offend or, more significantly, that if she did the sanctions available under that Act (which include imprisonment for a term not exceeding three months) would be inadequate. But the matter does not rest there. There is another ground on which the judge’s exercise of his discretion was flawed.

Unlike the Protection of Animals Act 1911 (s.3), the 1973 Act does not give the court power to deprive an offender of the ownership of dogs. The nearest it gets is in s.3 (5) and (6), which make provision for orders ancillary to a disqualification order under subsection (3)(c). Subsections (5) and (6) provide:

“(5)

Where a court makes an order under subsection (3)(c) of this section in relation to a description of dogs it may also make such order as it thinks fit in respect of any dog of that description which –

a)

was in the offender’s custody at the time when the offence was committed; or

b)

has been in his custody at any time since that time.

(6)

An order under subsection (5) of this section may (in particular)-

a)

require any person who has custody of a dog to deliver it up to a specified person; and

b)

(if it does) also require the offender to pay specified amounts to specified persons for the care of the dog from the time when it is delivered up in pursuance of the order until permanent arrangements are made for its care or disposal.”

Despite an argument by Mr Jupp to the contrary, it is clear that those provisions do not empower the court to make permanent arrangements for care or disposal, far less to deprive the offender of the ownership, of any dogs. The judge recognised that state of affairs. He also observed that the 1973 Act does not indicate what the “permanent arrangements” referred to in s.3(6)(b) might be. Having recorded a concession by the Council that there was a lacuna in the 1973 Act and after comparing it with the Protection of Animals Act 1911, the judge said:

“It is in these circumstances that the claimant seeks from this court the redress it has been unable to obtain from the criminal courts.”

Later, after referring to the Stoke-on-Trent case, he said:

“As I have said, the Breeding of Dogs Act is flawed and its remedies are inadequate because of the absence of any provision for the disposal of dogs removed under it or for the transfer of their ownership.

I have to consider whether in all the circumstances at today’s date the risk of the law being flouted, without an adequate remedy, is so serious that the equitable and discretionary remedy of an injunction should be granted to the claimant.

In the, what I am told are unique, and certainly difficult circumstances of this case, I am persuaded that not only in the interests of the dogs in the care of the defendant, but in order not to undermine the maintenance of the statutory high standards required for breeding establishments throughout the Borough, an injunction is the only effective remedy and, therefore, would be an appropriate and proportionate response.”

It is clear from those passages that the judge’s purpose, or principal purpose, in granting the injunction and the declaration (para 5 above) was to achieve that which could not have been achieved under the 1973 Act, namely to deprive Dr Hein of the ownership of all but three of her dogs and to make permanent arrangements for their care or disposal. In other words, he sought to grant relief, not in aid of the criminal law, but, as Neuberger J has put it, to make good gaps in that law. That was something he could not do; see the decision of this court (affirming Neuberger J) in Worcestershire County Council v Tongue [2004] Ch.236, a decision not cited to the judge.

On these two grounds I would discharge the injunction. On the latter ground the declaration is even more objectionable, seeking as it does, to deprive Dr Hein of the ownership of all but three of her dogs and to make permanent arrangements for their care or disposal. Mr Widdup accepted that, if the injunction cannot stand, neither can the declaration. I would discharge the declaration.

Before discussion of the Council’s appeal on damages, two further points must be briefly mentioned. First, the judge referred to evidence of one litter having been born at Amberwell in March 2003, with the puppies being sold for £300 each. Later he said that there was insufficient evidence to find that that amounted to carrying on a business of breeding dogs for sale contrary to the 1973 Act. We have been told that a further litter has been born more recently, which no doubt accounts for the four puppies now on the premises. Secondly, by their particulars of claim the Council also sought an injunction pursuant to s.81(5) of the 1990 Act on the ground of noise amounting to a statutory nuisance. However, the judge recorded an acceptance by the Council at trial that, on the evidence, the noise was not at a level high enough to constitute a statutory nuisance; that route was not therefore pursued.

The Council’s particulars of claim contained an allegation that Dr Hein was obliged to pay for the care of her dogs after the expiry of the disqualification orders on 8 August 2003. No legal basis for the allegation was pleaded. The matter is of importance to the Council and their council tax payers, because Mr Burnage said in evidence that the total amount of kennel and veterinary fees for the fifteen month period between August 2003 and October 2004 (the amount for the last of those months being an estimate) was £60,181.83. For each of the last five months the amount was in excess of £4,000.

When the magistrates made the disqualification order under the 1973 Act on 19 March 1996 (para 7(4) above), they had an ancillary power under s.3(6)(b) of that Act (para 16 above) to require Dr Hein to pay specified amounts to specified persons for the care of the dogs from the time when they were delivered up until permanent arrangements were made for their care or disposal. The Council applied for an order under that provision, but the application was refused. No appeal was brought against the refusal. It is important to emphasise that the Council do not make any claim in respect of the period prior to the expiry of the disqualification orders.

The judge dealt briefly with the Council’s claim for reimbursement. He said:

“The Council obtained and retained possession of the defendant’s dogs by virtue of an order of the magistrates who, as I have said, could have, but refused to order the defendant to contribute to the cost of the dogs’ upkeep. The Council did not appeal against that refusal. They still rely on that order to justify their continued retention of the dogs and they cannot cherry pick which parts of the order they accept and which they do not. I regard it as specious for the Council to now seek to keep the benefit, but evade the burden, of the magistrates’ order by invoking the law of bailment in an attempt to recoup their losses. This is a collateral attack on the magistrates’ decision. The claimant’s entitlement to possession of the dogs is not as bailees, but is founded solely on the order that they sought and obtained from the court and by which they must now abide. The bailment is merely incidental to and not the reason for their possession of the dogs. I therefore dismiss the claim for damages.”

Mr Widdup attacked the basis of the judge’s decision. He appears to have assumed that an order made under s.3(6)(b) could have extended beyond the period of the disqualification order. I do not think that that can be correct. The true view is that once a disqualification order has come to an end the dogs must be returned to the offender. If the Council’s application for injunctive and declaratory relief fails, it will be clear that that is what ought to have happened in this case. Whilst I fully understand the stance adopted by the Council, I cannot see on what principle they are entitled to be reimbursed for the costs of caring for dogs which ought to have been returned to Dr Hein, especially when, as the judge found, she has been seeking their return since August 2003. I would therefore affirm the judge’s decision on this question.

The position is highly unsatisfactory. In his reply Mr Jupp described Dr Hein as “looking down the barrel of a gun”. That is an accurate description of her plight. But if she is not prepared to make arrangements which ensure that she cannot again be prosecuted for keeping an unlicensed breeding establishment, she will have no one to blame but herself.

I would allow Dr Hein’s appeal and dismiss the Council’s appeal.

I have read the judgments of both Sir Martin Nourse and Waller LJ in draft and, like them, I have found this a very troublesome case. I add a few words of my own, partly for that reason, but partly because I do not entirely agree with the principles identified by Sir Martin Nourse as applicable to the granting of injunctions in this class of case and I have ultimately reached the conclusion that, while part of the judge’s order cannot stand, it would be wrong to set aside the injunction which he granted.

The order made by the judge was intended to deal with three different problems. The first was what was to be done about the dogs in the Council’s possession pursuant to the earlier court orders identified by Sir Martin, the second was to regulate the number of dogs that Dr Hein was to be permitted to keep in the future and the third was to resolve the Council’s claim to recover the costs of keeping the dogs since the orders preventing Dr Hein from having custody of dogs expired in August 2003.

The judge resolved the first problem by making the declaration in paragraph 2 of the order, which reads:

“It is declared that unless the Defendant provides by 28^th January 2005 the Claimants with a suitable address or addresses (other than Amberwell) to which the dogs now in the Claimants keeping can be delivered to she relinquishes ownership of those dogs and the Claimants shall be entitled as bailees to sell or dispose of ownership of the dogs and to account to the Defendant for the net proceeds of sale.”

The judge resolved the second problem by the injunction granted in paragraph 1 of the order, which restrained Dr Hein from keeping more than three dogs of the same gender at Amberwell with the effect from 28 January 2005. As to the third issue, the judge dismissed the Council’s claim for ‘damages’.

I agree with Waller LJ that logically the first question for consideration is what the rights and duties of the Council were when the bailment created by the orders of the court came to an end in August 2003. On the face of it, the position was clear. The Council thereafter had no right to retain possession of the dogs and were in principle obliged to return them to Dr Hein. There are only three possible bases upon which the Council could lawfully refuse to deliver the dogs to Dr Hein, at any rate if she requested them, which she did. They are by statute, at common law or by order of a court.

Nobody has suggested any statutory basis upon which the Council might have been entitled to retain possession of the dogs. So far as I can see, the only basis upon which the Council might have been entitled to refuse to redeliver the dogs to Dr Hein at common law, in the absence of an order to the court, is if the Council could show that, if they redelivered the dogs to Dr Hein they would be aiding and abetting a criminal offence.

As Waller LJ observes, in Worcestershire CC v Tongue [2004] EWCA 140 [2004] Ch 236, at first instance Neuberger J refused to order the return of cattle which the claimants had removed in accordance with an interlocutory order of a judge. He refused to order the return because, as Peter Gibson LJ said at paragraph 12, that would mean that the court would be sanctioning an offence while an earlier order disqualifying the defendant from having custody of cattle stood. That refusal was not the subject of the appeal but nor was it doubted in the judgments of this court.

Moreover, it appears to me that in those circumstances the Council could probably say that thereafter they retained possession of the dogs as a matter of necessity and that, since they owed a duty to take reasonable care of the dogs and had incurred reasonable expenses in doing so, they had a correlative right to be paid reasonable expenses or even reasonable remuneration for doing so, by the application of the principles in cases like China Pacific SA v Food Corporation of India (The Winson) [1982] AC 939, Cargo ex Argos (1873) LR 5 PC 134 and Great Northern Railway Co v Swaffield (1874) LR 9 Ex 132. However, even in such a case, I can see no basis upon which the Council could have been entitled to sell the dogs except on the authority of Dr Hein.

The Council did not put their case in quite that way on the facts of this case. That is understandable for two reasons. The first is that they may have had in mind the difficulties adverted to by Waller LJ arising out of the provisions of the Protection of Animals Act 1911 as amended. The second reason is that, to my mind, the evidence did not go so far as to establish that to return the dogs in August 2003 would be to aid and abet a criminal offence, whether cruelty to animals or breeding dogs without a licence or otherwise. The judge’s findings did not go so far. It follows, as I see it, that tested as at August 2003 when Dr Hein’s disqualification came to an end, the Council were not entitled to refuse to return the dogs, unless they obtained an order from the court which justified such a refusal. That was indeed one of the purposes of the proceedings. They did not, however, seek only an injunction to restrain Dr Hein from breeding dogs without a licence. Both the application and the order went much further. The declaration in paragraph 2 is a key part of the order.

As I read his judgment, the judge was concerned that if the 26 dogs in the possession of the Council were returned to Dr Hein she would not be able to look after them properly with the consequence that they would breed and that she would then be breeding dogs without a licence. I share the concern expressed by Waller LJ that, if the 26 dogs are returned to Dr Hein to join those she already has, the dogs will be in a perilous position and that there will be a serious risk, as he puts it, of the dogs being subjected to unnecessary suffering and a serious possibility that Dr Hein, however inadvertently, will once again be committing the offence for which she was convicted on 19 March 1996. To my mind that risk exists, even though, as Sir Martin Nourse observes in paragraph 13 of his judgment, Dr Hein’s last conviction was on 5 November 2001. The crucial difference between the position as it is at present and the position as it will be if the dogs are returned to her is that, instead of the 11 dogs and four puppies referred to by Sir Martin that she already has, she will have a further 26 dogs making 37 dogs and four puppies in all.

As the judge held, even without the 26 dogs, a litter of puppies was born and sold, although he also said, no doubt correctly, that that was insufficient evidence to amount to the “carrying on of business of breeding dogs for sale”. Some of Dr Hein’s evidence, of which we have seen a transcript, does not inspire confidence that she will not breed dogs once she has more than 37 dogs. She said that she would like to continue to breed dogs, recognised that she had flouted the law in the past and said that, if any puppies came along, she would sell them for not less than £300 each. It is plain from the judge’s judgment that he took the view that there was a risk of the law being flouted and that:

“not only in the interests of the dogs in the care of the defendant, but in order not to undermine the maintenance of the statutory high standards required for breeding establishments throughout the Borough, an injunction is the only appropriate remedy.”

The judge was, however, faced with the difficulty that the mere granting of an injunction would not determine what was to be done with the dogs in the possession of the Council. A negative injunction by itself would not enable the Council to keep the dogs, let alone to sell them. The judge resolved the problem by the declaration but recognised that the juridical basis for such a declaration was not easy to identify. He correctly rejected section 12 of the Torts Interference with Goods Act 1977 as of no assistance because that section gives a power of sale to the bailee in respect of uncollected goods, whereas here Dr Hein wishes to collect her goods but the Council, who is the bailee, has refused to hand them over.

The only reason that the judge was able to give for the granting of the declaration was expressed in this way:

“The only way that I can make sense of the situation is to take the view that by conduct, which has resulted in an injunction precluding the defendant from taking delivery of the dogs, she is in effect in breach of her bailment. In those circumstances what I propose doing is making a declaration that unless within, say, three months, the defendant provides a suitable address for the dogs to be delivered to, or she herself sells or otherwise disposes of the dogs, or she relinquishes ownership of them, the claimant be entitled to sell or dispose of the dogs in its care belonging to the defendant.”

Thus the declaration was granted in aid of the injunction and depends upon the conclusion that, if Dr Hein did not take one of the identified steps, she would be in breach of the bailment, which would entitle the Council to sell the dogs.

I agree with Sir Martin Nourse that the court had no power to grant a declaration in the terms he did. For the reasons given above, there is no statute or principle of the common law which would justify such a declaration. It does not, however, to my mind follow that the court had no jurisdiction to grant an injunction in the terms of paragraph 1 of the order. It is in this regard that I take a somewhat different view from that expressed by Sir Martin Nourse.

I agree with Sir Martin that, by section 222 of the Local Government Act 1972 (“the Act”) and in the light of the decision of the House of Lords in Stoke-on-Trent City Council v B&Q (Retail) Ltd [1984] AC 754, a local authority has power to institute and maintain proceedings to enforce obedience to the criminal law within their district. I also agree that the guiding principles are those stated by Bingham LJ in City of London Corporation v BovisConstruction Ltd (18 April 1988) [1992] 3 All ER 697 at 714 as follows:

“(1)

that the jurisdiction is to be invoked and exercised exceptionally and with great caution: …;

(2)

that there must certainly be something more than mere infringement of the criminal law before the assistance of civil proceedings can be invoked and accorded for the protection or promotion of the interests of the inhabitants in the area: …. ; and

(3)

that the essential foundation for the exercise of the court’s discretion is not that the offender is deliberately and flagrantly flouting the law but the need to draw the inference that the defendant’s unlawful operations will continue unless and until effectively restrained by the law and that nothing short of an injunction will be effective to restrain them: ….”

It is, in my opinion, important to note that it is not necessary for a claimant to establish that there has been a deliberate and flagrant flouting of the criminal law. This can be seen from the judgments in the Bovis case. In that case the defendant contractors were alleged to be causing a noise nuisance at night and at weekends. The council served a notice which required the contractors to restrict their operations at night and at weekends. The contractors were alleged to have continued to carry out works in breach of the notice and the council laid 18 informations against them alleging breaches of the notice without reasonable excuse. Each breach was a criminal offence for which they were liable to a maximum fine of £2,000 and a further fine of £50 for each day the offence continued. The hearing of the informations was adjourned a number of times and the council ultimately sought an injunction under section 222 of the Act to restrain the contractors from causing a noise nuisance outside the permitted hours.

One of the issues determined by the court was whether it was bound by the decision of the House of Lords in the Stoke-on-Trent case to hold that before an injunction could be granted it must be established that the contractors had committed a criminal offence or offences, that the criminal law provided an inadequate remedy and that they were deliberately and flagrantly flouting the time limits in the notice: see per O’Connor LJ at p 706j. In the Stoke-on-Trent case Lord Fraser said at [184] AC 754 at p 767:

“I have had the advantage of reading in draft the speech of my noble and learned friend Lord Templeman, and I agree with it. I wish particularly to associate myself with his view that something more than infringement of the criminal law must be shown before the assistance of civil proceedings by way of injunction can be invoked by the local authority. That something more is required in order to establish that the offender is not merely infringing the law but that he is “deliberately and flagrantly flouting it”: see Stafford BC v Elkenford Ltd [1977] 1 WLR 324 at 330 per Bridge LJ.”

In the Bovis case this court followed the approach of Purchas LJ in Kent CC v Bachelor [1979] 1 WLR 213 at 219 and upheld the grant of an injunction. It also expressly agreed with the opinion of Sir Roger Ormrod in that case that, despite what was said by Lord Fraser in the Stoke-on-Trent case in the passage just quoted, the striking phrase ‘deliberately and flagrantly flouting the law’ was not part of the ratio of Lord Templeman’s speech: see per O’Connor LJ at p 709d-e. To my mind that same approach is reflected in the third of the principles identified by Bingham LJ and quoted above. Just before summarising those principles Bingham LJ had observed (at page 714f) that in Runnymede BC v Ball [1986] 1 WLR 353 the Court of Appeal regarded cases of flagrant and deliberate flouting as only one category of case, albeit a very important category.

As I see it, all depends on the facts of the particular case. If a defendant is deliberately and flagrantly flouting the law, that is plainly an important factor but it is not a necessary condition for the granting of an injunction. Waller LJ has demonstrated, by reference to the principles stated by Kerr LJ in Portsmouth City Council v Richards [1989] 1 CMLR 673 and Millett J in Wychaven District Council v Midland Enterprises (Special Events) Limited 397, the principles are, if anything, somewhat broader than those stated by Bingham LJ. Thus, the broad questions to be asked are, as Kerr LJ put it, whether in the particular circumstances criminal proceedings are likely to prove ineffective to achieve the public interest purposes for which the legislation in question was enacted or, as Millett J put it, there are good grounds for thinking that compliance with the law will not be secured by prosecution.

On the other hand, I fully accept that an injunction should only be granted in an exceptional case and that the court should have in mind the approach suggested by Hoffmann J in Chief Constable of Leicestershire v M [1989] 1 WLR 20 at p 23, which was quoted by Peter Gibson LJ in Tongue at paragraph 29 and which has been quoted by Waller LJ:

“The recent and detailed interventions of Parliament in this field suggest that the court should not indulge in parallel creativity by the extension of general common law principle.”

It is for that reason that the declaration granted by the judge cannot stand.

The question is whether the injunction granted in paragraph 1 of the order can stand by the application of the principles identified by Bingham LJ in Bovis and in the other cases to which I have referred above. I have reached the conclusion that it can. I have set out the judge’s conclusions above and they are also referred to in some detail by Sir Martin Nourse. The key points are that Dr Hein flouted the law for many years. On the findings of the judge it is almost inevitable that if 26 dogs are returned to her they will breed. She may not be able to prevent it. The judge was also concerned about noise and the condition in which the dogs will be kept. As stated above, I agree with Waller LJ that the reality of our decision, if we were to set aside the injunction, would be that the dogs returned would be in a perilous position. As he puts it, Dr Hein is elderly and has had a stroke and she appears to be unwilling to arrange for the dogs to go to proper homes. I agree with him that one feels instinctively that there must be a serious risk of the dogs being subjected to unnecessary suffering and a serious possibility that Dr Hein will once again commit the offence for which she has been convicted on 19 March 1996 and, indeed, many times before.

In short, this seems to me to be an exceptional case. There is here something more than the risk of a mere infringement of the criminal law. It is a reasonable inference that, unless restrained, the unlawful operations carried on by Dr Hein in the past will continue, if only because she will not be able to cope with 37 dogs and four puppies. The judge expressed his concerns in some detail and ultimately said this:

“I have to consider whether in all the circumstances at today’s date the risk of the law being flouted, without an adequate remedy, is so serious that the equitable and discretionary remedy of an injunction should be granted to the claimant.

In the, what I am told are unique, and certainly difficult circumstances of this case, I am persuaded that not only in the interests of the dogs in the care of the defendant, but in order not to undermine the maintenance of the statutory high standards for breeding establishments throughout the Borough, an injunction is the only effective remedy and, therefore would be an appropriate and proportionate response.”

The judge was in my opinion entitled to have regard to the role of the Council and indeed to the protection of others in the area. It seems to me that, in all the circumstances, the principles identified by Bingham LJ (as developed in the later cases) were satisfied here. It follows that I would uphold the grant of an injunction. I should add that I can see that there is scope for argument that the judge should not have restricted the number of dogs to be kept at Amberwell to three and, for my part, I would be willing to consider submissions on this question when the judgments are handed down.

For these reasons, I would allow Dr Hein’s appeal to the extent of setting aside the declaration but would uphold the injunction, subject perhaps to an application to increase the number of dogs to more than three.

I would dismiss the cross-appeal. Although the Council claimed damages, I have never understood on what basis they could be entitled to damages. If the Council have any claim for the reasonable costs of looking after the dogs, it can only be on the basis of the principles in cases like The Winson. I do not think that it is suggested that the Council are entitled to recover the cost of looking after the dogs up to August 2003, when the bailment pursuant to the order of the court came to an end, because the magistrates refused to make an order to that effect. As to the period after that, the principles in The Winson do not assist the Council because, for the reasons given above, in the absence of an order of the court, they were not entitled to retain the dogs but were obliged to return them to Dr Hein, who wanted their return.

I would only add this. It seems to me that, if the injunction is maintained in the form of paragraph 1 of the order made by the judge, the Council will be entitled to refuse to redeliver the dogs to Dr Hein except pursuant to arrangements which will not involve a breach by Dr Hein of the terms of the injunction. If she makes sensible arrangements for their delivery to others, the Council will of course be bound to comply with them. However, if she refuses to do so, with the result that the Council have to incur expense in looking after them pursuant to their duty to take reasonable care of them, as I see it, the Council will have a correlative right to the reasonable cost of looking after them in the future and, perhaps, to reasonable remuneration for doing so.

The judgment of Sir Martin Nourse, which I have read in draft, gives a logical and compelling basis for allowing this appeal, but its implications concern me. If this appeal had to be allowed and twenty-six dogs simply returned to Dr Hein to await the possibility of a criminal prosecution in the future, that is a result which I find it hard to countenance.

Sir Martin Nourse describes the position as most unsatisfactory and how Dr Hein is in a perilous position. He, I believe, has in mind the risk of her committing a further offence relating to the breeding of dogs. That is no doubt true, and it is a matter for anxiety. But the fear I have is, (contrary I accept to some of the evidence which has led Sir Martin to express the view in para 13 that “it would be wrong to posit a real possibility of any further convictions under the Protection of Animals Act”), that the reality of any decision that would involve the dogs being returned would place those dogs, together with those already in Dr Hein’s possession, in a perilous position. Twenty-six dogs are to be returned to Dr Hein to add to the eleven adults and four puppies that she already has. She is elderly and has had a stroke, and she appears unwilling to arrange for those dogs to go to proper homes prior to their return to her. One feels instinctively that there must be a serious risk of the dogs being subjected to unnecessary suffering and a serious possibility that Dr Hein, however inadvertently, will once again be committing the offence for which she was convicted on the 19^th March 1996. The judge in his judgment reflected the same concerns in these words:-

“However the claimant is convinced that with the defendant’s track record (and she is now aged 76 and has had a stroke) that if the dogs were returned to her as sure as night follows day she would continue to breed dogs without a licence and, the addition of another twenty-seven dogs to those on the premises, would give rise to a public nuisance by noise, smell and infestation by vermin. The risk of the dogs being neglected, or ill-treated, would be greatly increased. On the evidence that I have heard I find that those concerns are understandable.”

By s.1 of the Protection of Animals Act 1911 a person is guilty of an offence of cruelty if by an act or omission he or she causes any unnecessary suffering to any animal. By s.1(2) it is provided that an owner should be deemed to permit cruelty within the meaning of the Act if he or she shall has failed to exercise reasonable care and supervision in respect of the protection of the animal therefrom. That subsection also provides that if the owner is convicted of permitting cruelty through failing to exercise care and supervision, the owner will not be liable to imprisonment without the option of a fine.

By s.3 of the same Act, the court is given the power to deprive a person convicted of cruelty of the ownership of an animal, provided that:-

“No order shall be made . . . unless it is shown by evidence as to a previous conviction, or as to the character of the owner or otherwise, that the animal, if left with the owner, is likely to be exposed to further cruelty.”

By amendments to the 1911 Act by the Protection of Animals (Amendment) Act 1954 as further amended by the 1988 Act, the court was given power to disqualify for such period as it thought fit an owner from having the custody of any animal or any animal of a specified kind upon a conviction for cruelty.

It was under the aforesaid Acts that Dr Hein was convicted in 1996. The magistrates exercised their powers to deprive Dr Hein of the ownership of certain dogs. Then they disqualified her for seven years from having custody of dogs. Those proceedings had been brought by the RSPCA. She appealed to the Guildford Crown Court who dismissed her appeal on the 9^th August 1996 and it is from that date that the seven year ban ran, until 9^th August 2003.

The above powers are important because they have an impact on both the first point I shall seek to explore, and indeed on the proper approach to granting an injunction in reliance on s.222(1) of the 1972 Act, which I will consider secondly.

The council have sought an injunction and declaration relying on s.222 of the 1972 Act. They have based the remedy they sought on the recognition by the courts of circumstances in which local authorities may use the civil court to enforce the criminal law. Because of my anxieties I have considered whether there may not a different basis for the council’s claim to relief.

The council could be said to have sought an injunction in order to provide themselves with a right to hold on to the dogs, and a right to dispose of the dogs following establishment of that right. If that is correct, the first question is whether they were obliged by law to return Dr Hein’s dogs once the ban ran out. To answer the question whether the council had some right to possession involves consideration of criminal statutes but in a context slightly different from that in which the court is considering whether to exercise its powers to grant an injunction in aid of the criminal law. It might also supply the proper context in which to consider whether or not the council will have a claim to remuneration for keeping the dogs. If they had no right to keep the dogs they cannot, as it seems to me, have any claim to reasonable remuneration or damages for so doing. If on the other hand there was some right to do so, depending on how that right is defined, that might provide a basis for claiming remuneration.

If the first relevant question is whether the council had a right not to hand the dogs back to Dr Hein, the correct moment in time to commence consideration of that question is as at 9^th August 2003, when the ban to Dr Hein having custody of any dogs came to an end. It is, as I would see it, at that moment that the council were either bound to hand back the dogs, or had to provide an answer to Dr Hein’s claim to their return.

What answer could there be to the return of Dr Hein’s dogs as at 9^th August 2003? The only possible answer which could be suggested is that, if the dogs were returned, Dr Hein would be bound to commit a criminal offence, either by running a breeding establishment without a licence or, and in my view more seriously, because she was bound however inadvertently within a short time to become guilty of the offence of cruelty to the dogs.

We are clearly in not very dissimilar circumstances from those that arose in Worcestershire County Council v Tongue [2004] EWCA Civ 140 [2004] CH2 36. That was a case where the council were going well beyond seeking an injunction to enforce the criminal law under s.222(1) of the 1972 Act. The case was one concerned with cruelty to animals and was one in which the local authority were seeking orders that would allow them to enter the land of the Tongues in order to rescue certain animals, which the council were asserting were at risk of being cruelly treated. The ultimate decision was that there was no power to fill gaps in the criminal law but it is of interest that Neuberger J, at first instance, had refused to make an order returning cattle to the Tongues, which by the order of Judge Norris had been removed. The reasoning of Neuberger J was that if the return of the cattle were ordered “the court would be sanctioning the commission of an offence while the disqualification order stood”. Whether Neuberger J was right or wrong to refuse that order was not a question raised on the appeal (see para 43 of Peter Gibson LJ’s judgment.)

The case of Dr Hein raises even more directly whether it could be an answer in law to her request to the return of her dogs that she would be committing a criminal offence if they were returned. If that were an answer to her request to have the dogs returned, the next question would be what obligation would the council owe in relation to the dogs. The suggestion might be that the obligation of the council would be to do everything in its power to recognise ownership, short of allowing a criminal offence to be committed. Thus, it could be said, it should seek a direction from Dr Hein as to the disposal of her dogs, which would not involve the commission of a criminal offence. If she refused to give that direction, then it could be argued that the council were entitled to make a reasonable charge for caring for her dogs pending her giving that direction. Ultimately if she continued to refuse to give directions, then it could be argued that the court should have the power to order the dogs to be sold on her behalf.

There may be a principle which Neuberger J’s view would support which provides an answer to restoring property to its rightful owner if the restoration will result in the commission of a criminal offence. I am not simply talking about examples where restoration is made a criminal offence where the answer would be obvious. I would suggest, to take an extreme example, that if an owner of a gun asked for it back on the basis that they wished to commit murder, the law would hold that it was an answer to the claim for restoration that a criminal offence was to be committed. The common law would not however simply allow confiscation of the gun. It would require the possessor to act as consistently with ownership as possible short of aiding a criminal offence. I confess to finding no authority to support the above, but in principle it ought to be so and that seems to accord with Neuberger J’s view.

But in the context of cruelty to animals the difficulty is that the criminal law statutes lay down in detail the power to protect those animals. As Hoffmann J said Chief Constable of Leicestershire v M [1989] 1WLR 20 at 23 as quoted by Peter Gibson LJ in Tongue at para 29:-

“The recent and detailed interventions of parliament in this field suggest that the court should not indulge in parallel creativity by the extension of general common law principles.”

Prior to the passing of the Acts for the protection of animals it is doubtful whether it would have been the answer to the restoration of an animal to its rightful owner that the person in possession of the animal feared that by some act of inadvertence the animal would suffer unnecessarily. The right, if any, to resist restoration in this case flows from the criminal statute making it an offence to act in a way which permits an animal to suffer unnecessarily. In that context the criminal statutes lay down detailed provisions relating to the protection of animals and the remedies available from the courts. They would seem not to have always been satisfactory and it could be said that they are still not quite satisfactory. Under the 1911 Act the power was to deprive of ownership but only in limited circumstances. It took the 1954 and 1988 Amendment Acts to give further powers relating to disqualifying a person from having custody for periods of time. It was under that power that Dr Hein was prevented from having custody for a period of seven years. She in fact disobeyed that ban and was convicted of disobedience in 1997 and 2000. Furthermore, the odd feature of her conviction in November 2001 was that it related only to an offence of keeping a breeding establishment, when one would have thought she was also committing a further offence of having custody of dogs when banned. But it seems no action was taken against her on that basis.

What may be said to be an unsatisfactory feature of the power to ban is that, so far as I can see, even if the ban is broken and even if it is possible that there remains an anxiety over whether a person should continue to have custody of animals, there is no power to extend the ban. The only power appears to be to shorten the ban on the application of the person banned, that person having a right to apply after the imposition of the ban after twelve months for the removal of that disqualification and to apply each twelve months thereafter. Following a ban the Acts could be said to contemplate a further act of cruelty and a prosecution therefore before a more draconian remedy was available, e.g. a ban for life and/or a sentence of imprisonment.

What then was the position of the council on this case on the 9^th August 2003 on termination of the ban of seven years imposed by the court? Having regard to the number of times that Dr Hein had broken the ban in the intervening period, and of the natural anxiety of the council as to what would happen to the twenty-six dogs if they were returned, could the council rely on the principle that return would so clearly involve Dr Hein in the commission of a criminal offence that they should not be obliged to return the dogs?

With some reluctance I would hold that the council did not have that power. It is the criminal statutes that have given powers to the court so far as taking custody of animals is concerned and so far as the imposition of disqualification or taking of ownership or whatever. It seems to me that it would be impermissible to hold that although the criminal statutes imposed on prosecuting authorities certain matters which they had to prove before they could obtain an order affecting an owner’s right to possession, at common law there was a right in such authority to deny possession or provide its own remedy on its own view, as to whether criminal conduct was likely to take place. In those circumstances it is unnecessary to go further and consider what the position might be if the council had that power. It would have been necessary to consider whether the council have ever put their case on a basis which would allow the power to be recognised as indicated. It would also be necessary to go into the question as to what steps were taken by the council to obtain directions from Dr Hein in considering whether some form of remuneration is due from Dr Hein.

Having concluded, as I have under the first question, that the council have no right to possession of the dogs, I must come back to consider whether the council are entitled to an injunction by use of s.222 of the 1972 Act. On this aspect I have had the advantage of reading the judgment of Clarke LJ and agree with its conclusions. In this instance the council are not seeking to establish any right to possession and if and in so far as they were seeking to do so I agree entirely with the judgment of Sir Martin Nourse in so far as he makes clear that s.222 cannot be used to fill gaps in the criminal law. Thus, as he says, if the principal purpose of seeking the injunction and the declaration was to achieve that which could not have been achieved under the legislation, it is not for the civil court to provide a remedy. That, as it seems to me, is a clear answer to the claim to the declaration which the council sought.

However, in seeking an injunction pursuant to s.222 the council were performing their public duty to prevent the dogs being subjected to suffering and/or their public duty to prevent a breeding establishment being run without a licence. As I see it the real question is whether the civil court should approach the matter on the basis that in this type of case it must leave the matter to the criminal law, i.e. wait until an offence has been committed, or whether, where it is obvious that a criminal offence will be committed which will involve suffering or serious disadvantage to those which the criminal law was designed to protect, the civil court should grant relief, preventing the criminal offence taking place.

Sir Martin Nourse sets out the guiding principles identified by Bingham LJ in City of London Corporation v Bovis Construction Ltd [1992] 3 All ER 697 at 714. The jurisdiction must be exercised exceptionally and with great caution; there must be something more than mere infringement of the criminal law before the assistance of civil proceedings can be invoked; and the essential foundation for the exercise of the court’s discretion to grant an injunction is not that the offender is deliberately and flagrantly flouting the law, but the need to draw the inference that the defendant’s unlawful operations will continue unless and until effectively restrained by the law.

Thus, the ‘something more’ required was recognised by Bingham LJ as not being “a deliberate flagrant and flouting of the criminal law”.

In addition, it would seem to me that the Court of Appeal in Portsmouth City Council v Richards [1989] 1 C.M.L.R. 673 slightly broadened the basis, as expressed in that third principle. In Kerr LJ’s judgment at 683 he put the position in this way:-

“45.

The cases in which such injunctions have been granted by the courts have so far fallen into two broad categories. First, there are those where the scale of the criminal penalties available, and the past or threatened course of conduct of the defendants and others in a similar position, were such that it was apparent that attempts to enforce the legislation merely by means of prosecutions would not achieve the public interest purpose for which it has been enacted, because prosecution would not provide a sufficient deterrent. In the main these were cases of breaches of the Shops Act 1950, dealing with prohibitions against trading on Sundays.

46.

The second category comprises emergency situations in which it was essential for the courts to intervene at once to prevent the continuation of an unlawful state of affairs or conduct which might result in irreversible unlawfulness unless an injunction were granted forthwith.

47.

However, both these categories are no more than illustrations, albeit in different contexts, of the broad test to which I have already referred. It would obviously be difficult to contend – and I certainly do not consider – that the present case can be claimed to fall into the second category. The question is therefore whether, in the circumstances, it falls into the first category or whether it is otherwise within the general test laid down by Lord Templeman, albeit in a novel context. In my view the answer to both is in the affirmative. However, in order to see how far this jurisprudence has developed since Gouriet, I must shortly refer to some of the decided cases which fell into one or other of the original categories.”

The broad test to which Kerr LJ referred was, as I understand it, identified in paragraph 38 of his judgment where he said this:-

“I must now refer to the main authorities to which we are referred. These deal with the circumstances in which it may be permissible to enforce breaches or threatened breaches [my emphasis] of the criminal law by means of injunctions restraining conduct which is persisted in, would involve the commission of offences or further offences. That is the field in which the present appeal lies. In effect, the broad test is that injunctions are only permissible if, in the particular circumstances, criminal proceedings are likely to prove ineffective to achieve the public interest purposes for which the legislation in question had been enacted.”

Kerr LJ in his judgment also cites with approval a passage from the judgment of Millett J in Wychaven District Council v Midlands Enterprises (Special Events) Ltd [1988] 1 CMLR 397 in which Millett J commended a local authority for moving for a quia timet injunction. He said:-

“If they have good grounds for thinking that in any given case compliance with the law will not be secured by prosecution, they are entitled to apply for an injunction. Counsel for the defendants criticised the council for threatening to seek a quia timet injunction even before any threatened breach of the law had occurred and when therefore no prosecution was possible. In a proper case I do not consider that that is a ground for criticism but for commendation. It must be an eminently sensible and convenient manner of proceeding.”

I come back to the question I posed – does the council have to hand back the dogs and wait for a criminal offence to be committed before they can take any action? In my view the facts of cases such as the present, where the commission of a criminal offence will involve possible inadvertent neglect of animals and/or the harmful consequences of unlicensed breeding of dogs, provide the very circumstances in which the council should be entitled to move to prevent a breach of the criminal law, without waiting for further prosecution.

The question remains as to what form of relief would be appropriate. It could be said that an injunction limiting the number of dogs which Dr Hein should be allowed to keep goes further than permissible in this context. However, an injunction in general form, seeking to restrain her committing the offence of running a licensed breeding establishment or acting in a way which might harm the dogs, would itself be likely to be inadequate. Dr Hein is entitled to know precisely what it is that she is not permitted to do. Putting a restriction on the number of dogs and the gender of those dogs identifies the restrictions which must be placed on Dr Hein to prevent her committing further offences. I would, like Clarke LJ, be prepared to hear submissions on numbers of dogs and the precise form of relief.

The fact that the council can justify an injunction does not lead to the consequence that they are entitled to the declaration that they sought. I have already expressed the view above on that. However, the effect of the injunction does mean that the council are unable to hand the dogs back to Dr Hein. In that circumstance they are entitled to seek directions from her as to a way in which they can dispose of her dogs without Dr Hein risking being in breach of the injunction. She must provide instructions as to the persons to whom the dogs can be delivered. If she were to refuse to give directions the council, having obtained the injunction, would be back in the position of being an agent of necessity as explained in the judgment of Clarke LJ. In agreement with him it seems to me that a failure to give instructions would produce a circumstance in which thereafter the council would be able to make a reasonable charge for keeping the dogs.

I would therefore allow the appeal to the extent of holding that the declaration granted by the judge should not have been granted, but I would uphold the judge’s grant of an injunction, albeit with liberty to consider the precise number of dogs which should be covered by the same. I would dismiss the cross appeal.