Blass v Randall

This action arises out of the purchase by the claimant, Dr. Eddie Blass, of a horse (“the Horse”), named, at different times, “Mystery Boy”, “Mystery Boy Active Equestrian”, “Niu Pinky Active Equestrian”, “Pinky Upstall Services Limited”, “Panther” or “Active Panther” or “Pink Panther”, and “Pinky”. The Horse was sold to Dr. Blass by its then owner, Upstall Services Ltd. (“Upstall”). It would seem that Dr. Blass decided, on about 9 June 2005, to purchase the Horse, subject to the carrying out by the defendant, Miss Sarah Randall, a veterinary surgeon, of what is called a “Pre-Purchase Examination” (an “Examination”). Miss Randall did carry out an Examination on the Horse (to which Examination I shall refer in this judgment as “the Examination”) and thereafter delivered a “Certificate of Veterinary Examination of a Horse on behalf of a Prospective Purchaser” numbered V718225 (“the Certificate”). The Certificate was in part pre-printed and in part completed in manuscript. The pre-printed part was in a commonly used standard form. In this judgment I shall refer to the standard form when not completed as a “PPE Certificate”.

The basis of the claim of Dr. Blass in this action was, essentially, her contention that Miss Randall did not tell her at the time of the Examination, that the Horse had, on 3 December 2004, undergone procedures described as “neurectomy of the left ulnar and deep branch of the right plantar nerves” (“the Neurectomies”), and what that meant. The case for Miss Randall was that she had explained to Dr. Blass on the occasion of the Examination that the Horse had undergone the Neurectomies and, in substance that that meant that the Horse had been lame in the past, it had had two operations to cut nerves in the left foreleg and the rear hind leg, and that there was a risk of the Horse becoming lame in the future. The principal issue in this action was thus one of fact, what had been said, if anything, on the occasion of the Examination about the Neurectomies and their significance.

As I understand it, lameness in a horse is a physical manifestation of pain or injury. Obviously successful treatment of the cause of the pain or injury should, in time, lead to the cessation of the lameness. However, lameness can also be dealt with by cutting the nerve or nerves by which the horse affected by lameness experiences the pain which prompts the lameness. That process, called a neurectomy, has the effect of desensitising the structure which the cut nerve is innervating, usually permanently. There was some difference of emphasis between the expert veterinary surgeons called on behalf of each side in the trial as to whether a neurectomy is purely palliative, leaving the underlying cause of the pain unaffected and the structure in question able to continue to deteriorate, or whether, at least in the case of a neurectomy of the deep branch of the lateral plantar nerve of a hind leg of a horse, it could be considered to be curative. However, it is not necessary for the purposes of this judgment to reach any conclusion on this issue.

I think that it was common ground that, to the effect that a structure in a horse was desensitised as a result of a neurectomy, the horse could continue activities which might damage that structure unaware of the pain which would otherwise prompt the horse to discontinue the relevant activities.

Another procedure to which it is relevant to make reference in this judgment is called a decompression. It appears that that procedure is more properly called a plantar fasciotomy. It is commonly undertaken to treat proximal suspensory desmitis (“PSD”) of a hind limb of a horse. The procedure involves cutting the connecting membrane (the fascia) overlying the damaged suspensory ligament, thereby releasing pressure on the damaged ligament. It was common ground in this action that a decompression is a different procedure from a neurectomy and that a neurectomy could not properly be described as a decompression. It was also common ground that what had prompted the undertaking of the Neurectomies was the fact that the Horse developed PSD in the limbs affected.

The Horse was a Dutch Warmblood Roan Gelding foaled on 10 May 1994. At the time Dr. Blass bought him he was thus eleven years old. He was purchased in about December 2003 by a company called Active Equestrian Ltd. (“Active”). The directors of Active were, and are, Mrs. Fiona James and Mrs. Nicola McGivern. Mrs. James was, and is, also a director of Upstall. On 1 June 2004 the Horse was sold by Active to Upstall for the sum of £100,000. Mrs. McGivern is, and was in the period relevant to this action, a professional dressage rider, and had participated as such as a member of the British Olympic team. It seems that the Horse had been purchased by Active with a view to being trained for, and ridden by Mrs. McGivern in, international dressage competitions. However, it appears that Mrs. McGivern did not form a satisfactory relationship with the Horse and he did not perform as well as had been expected. In addition it was found, after the sale to Upstall, that the Horse had problems with its legs which in due course led to the undertaking of the Neurectomies.

The principal business of Active was providing livery services to horse owners, and also training. The focus of the activities of Upstall, on the other hand, was the sale of horses. As I understood it, all horses purchased by Upstall were in fact intended for resale, possibly after training.

Dr. Blass has been riding for over twenty years. Her main interest is dressage. There are, apparently, different levels of dressage competition. It seems that dressage competitions are organised at domestic level in the United Kingdom by the British Dressage Association (“BDA”) and at international level by the Federation Equestre Internationale (“FEI”). As I understand it, there are ten levels of dressage competition. It may be that all ten levels could take place under the rules of BDA, but it seems that the top four of the ten levels at least in practice often take place under the rules of FEI. The exclusively domestic levels of competition are (1) Preliminary, (2) Novice, (3) Elementary, (4) Medium, (5) Advanced Medium and (6) Advanced. The next highest level of competition is (7) Prix St. Georges. Competition at Prix St. Georges level can be regulated either by the rules of BDA or by the rules of FEI. The other levels are not material for present purposes.

Rule 2.6.4 of the FEI Rules provides that:-

“Horses may not compete with a tracheotomy (i.e. a surgical opening through the skin into the trachea) or after a neurectomy has been carried out.”

Consequently a horse which has undergone a neurectomy is ineligible to compete in Prix St. Georges competitions which take place under FEI Rules. There is no similar prohibition on horses which have undergone a neurectomy participating in competitions taking place under the rules of BDA.

Over the years Dr. Blass has owned a number of horses. It seems that she has not been very lucky with the health of her horses. One, called “Fendrik”, had to be put down because of arthritic changes in his back. Another, “Polonaise”, died under anaesthetic. A third, “Boswell”, had a tear in his deep digital flexor tendon and responded poorly to treatment. A fourth, “Roanco”, developed severe kissing spine and also had to be put down. However, for some time prior to her purchase of the Horse Dr. Blass kept her horses in livery at the stables (“the Stables”) run by Active at Sedges Farm, Nags Head Lane, Great Missenden, Buckinghamshire. As a result of keeping her horses in livery there Dr. Blass had become familiar with the Horse.

Miss Randall was the regular veterinary surgeon used by Active to provide services at the Stables. In that capacity she was involved in the treatment of the Horse in respect of the problems with its legs in 2004. The Neurectomies were not carried out by her, but she arranged for another veterinary surgeon, Mr. Ian Wright, a partner in a Newmarket practice, Messrs. Greenwood Ellis & Partners, to attend at her professional premises, Chiltern Equine Clinic, to undertake them on 3 December 2004. In a report (“the Wright Report”) dated 6 December 2004, in which the name of the Horse was given as “Pinky”, Mr. Wright described what he had done to him:-

“The above animal underwent neurectomy of the left ulnar and deep branch of the right lateral plantar nerves under general anaesthetic at Chilton [sic] Equine Clinic on 3 December 2004. Both proceeded uneventfully and wounds were closed with layers of polyglactin 910 followed by stainless steel staples in the skin. Stent bandages were oversewn before protective bandages were applied for the immediate postoperative period. A recommended aftercare regime has been dispatched under separate cover.”

It was not in dispute that Miss Randall knew that Mr. Wright had undertaken the Neurectomies on the Horse on 3 December 2004.

It was common ground that the value of the Horse as at June 2005 in his actual condition, having had the Neurectomies, was £5,000. Dr. Blass had paid £45,625 for him. It was agreed that, subject to liability, the damages recoverable from Miss Randall were the excess of what Dr. Blass had paid for the Horse over £5,000, plus various incidental expenses in total amounting to £10,932.04. Total damages were thus agreed, subject to liability, at £51,557.04.

While I have summarised the main thrust of the allegations made on behalf of Dr. Blass in the Particulars of Claim, the way in which the material allegations were pleaded was of some significance. The Particulars of Claim bore a statement of truth signed by Dr. Blass and dated 1 March 2007. The statement of case included:-

“9.

The Defendant carried out the Examination on 17 June 2005. The Defendant told the Claimant orally, at the time of the examination, that:

9.1

Panther had previously undergone a decompression operation to the left forelimb and right hindlimb;

9.2

there was a small risk the decompression operation might not hold and so the Claimant should try leasing Panther for 6 months;

9.3

if the decompression did not hold then it could be done again without too much trouble and at relatively small expense. Alternatively Panther could be left as he was which would mean he would perform with less extravagance;

9.4

Panther had never been lame;

9.5

whereas a neurectomy would prevent Panther being allowed to compete under FEI rules, a decompression would not.

10.

The Defendant completed and signed a Certificate of Veterinary Examination on Behalf of a Prospective Purchaser, number 718225 (“the Certificate”) incorrectly dated 16.6.05. In the Certificate the Defendant marked the scars from the previous procedure, recorded a number of minor clinically discoverable signs of disease, injury or abnormality and then stated her opinion that:-

“On the balance of probabilities the conditions set out above are not likely to prejudice the animal’s use for dressage.”

No mention of decompression, or neurectomy, was made. Further no separate report was appended to the Certificate.

11.

At all material times the Defendant knew that the Claimant wanted to be able to compete on Panther at Prix St. George [sic] level and above under FEI rules and the Defendant knew that her Certificate and information and advice was being relied upon in the purchase of Panther and for insurance purposes.

12.

…

13.

Acting in reasonable reliance on the Certificate and information and advice set out in paragraphs 9 and 10 above, the Claimant purchased Panther for £46,625.00.

14.

The advice and statement of opinion was wrong in that:

14.1

on 3 December 2004 Panther had undergone a neurectomy of the left ulnar (forelimb) and of the deep branch of the right lateral plantar nerves (hindlimb);

14.2

the Defendant knew that previously Panther had undergone a double neurectomy;

14.3

Panther was not eligible to compete under FEI rules. Panther was therefore not suitable for all levels and/or differing levels of dressage in domestic competitions;

14.5

Panther had previously been lame.

15.

…

16.

…

17.

The Defendant was in breach of the duty of care owed to the Claimant.

PARTICULARS OF NEGLIGENCE

18.1

failed to tell the Claimant that Panther had previously undergone a double neurectomy;

18.2

further and/or alternatively failed to explain the significance of a previous neurectomy, namely:

18.2.1

such operations are usually only carried out on a horse that has previously been lame;

18.2.2

that the purpose of such an operation is to remove pain from the area so that a horse can continue to work without pain;

18.2.3

that although a neurectomy removes pain from a damaged structure it does not stop the damage from progressing;

18.2.4

that consequently it would be difficult to make an accurate assessment of the soundness of Panther on the day;

18.2.5

that consequently it would be difficult to make an accurate assessment of the suitability of Panther for different levels of dressage on the day;

18.2.6

that consequently it would be difficult to give an accurate assessment of Panther’s soundness and suitability for dressage in the future. This is because it is possible that lameness might reoccur and even progress further.

18.3

failed to tell the Claimant that she did not know of any occasion on which a neurectomy had been repeated;

18.4

failed to tell the Claimant that previously Panther had been lame in the left front and right hind limbs and failed to explain the extent of that lameness;

18.5

failed to tell the Claimant that Panther might suffer a recurrence of lameness in the left front and right hind limbs;

18.6

failed to tell the Claimant that although she was stating that Panther was suitable for use for dressage she meant only that he would be suitable for the purpose of a dressage schoolmaster horse;

18.7

wrongly told the Claimant that Panther had previously undergone a decompression operation;

18.8

alternatively wrongly described Panther as previously having undergone a decompression when in reality he underwent a neurectomy;

18.9

wrongly advised the Claimant that if the previous condition recurred the previous procedure could be repeated;

18.10

signed the Certificate stating that Panther was suitable for use for dressage without any qualification;

18.11

failed to state in the Certificate that Panther had undergone a double neurectomy;

18.12

passed the horse as fit for purchase and for dressage;

18.13

failed to tell the Claimant that the owner of Panther, Upstall Services Limited, was a client of the Defendant.

18.

[sic] Had the Claimant been told that Panther had undergone a double neurectomy and that this meant it was not possible upon examination to accurately assess his soundness and/or suitability for all levels of dressage she would not have purchased Panther.

19.

Had the Claimant been told that Panther was only suitable for use for dressage as a Schoolmaster she would not have bought him.

20.

Had the Claimant been informed that Panther had previously been lame she would not have bought him.”

A “Schoolmaster”, as I understand it, is a horse which has been trained to a particular level of dressage and from riding which a rider who has not achieved that level can learn and thereby progress to the level achieved by the horse.

Despite the plea in paragraph 9 of the Particulars of Claim, it was accepted by Mr. Graeme McPherson Q.C., who appeared on behalf of Dr. Blass, at the commencement of the trial that the Examination in fact took place on 13 June 2005.

Before turning to consider the evidence of witnesses of fact relevant to the issues in this action it is convenient to notice such few contemporaneous documents as were put before me.

In an e-mail dated 9 June 2005 to Mrs. McGivern Dr. Blass wrote, so far as is presently material:-

“Just to confirm our conversation, I will buy Pinky subject to vetting which is being carried out on Monday [13 June 2005] by Sarah Randall. I will insure him from Monday and will treat him as one of mine once he has passed the vetting. I will not, however, pay for his livery until Woody [another horse of Dr. Blass] is sold which is anticipated to be in the next 2 weeks.

In consideration for Pinky I will pay you a £10,000 cheque, assign you my lorry R369UMO, and give you the money from selling Woody. Depending on how much we get for Woody, I will also pay you a maximum of a further £5,000 in January 2006 (if we get £15K for Woody, then you take 10% sales fee and £3.5K towards the January payment; if Woody only fetches £10K then that will be the contribution towards Pinky at the moment).

If Woody does not pass the vet then it had better be serious as he is insured, but I will look into cashing in an investment to raise the further £10K but this will delay this part of the payment by 3 months. However, given the amount I have spent getting Woody checked out to no avail – I fully expect him to pass the vet!

Regarding saddlery, Pinky’s Ideal saddle will come with him and I will give you Picasso’s Jaguar as soon as I am able to buy him another saddle (waiting on Gary so that I can try the Elevator. This is a priority for me so I am not playing for time here.)

In summary – the purchase price is £25K plus the lorry (payment in instalments), and at no time will I end up paying for the livery of 4 horses. Hopefully on Monday I’ll be giving you the keys to the lorry (and documents) and the first cheque.”

As I have remarked, there was a pleaded issue as to upon which day exactly the Examination took place. Miss Randall produced in evidence a document entitled “Chiltern Equine Clinic Vet for Purchase” completed to show that an Examination of the Horse on behalf of Dr. Blass had been requested for 13 June 2005. She also produced a day book entry in respect of the Examination of the Horse on that date. Moreover, her bill for her services in connection with the Examination recorded those services as having been undertaken on 13 June 2005. Also, a form completed in respect of the taking of a blood sample from the Horse in the context of the Examination which was put in evidence was dated 13 June 2005.

Dr. Blass completed a proposal form (“the Proposal Form”) dated 13 June 2005 addressed to British Equestrian Insurance Brokers in respect of the Horse. On the Proposal Form Dr. Blass completed details of the Horse, giving the name “Panther”. As the “Price paid & date purchased:” Dr. Blass stated, “£20K 13/6/05”. She completed the “Sum insured” as “£20K”. In respect of “Use(s) of Horse” she said, “Advanced Dressage, Group 2”. The Proposal Form included various questions. One, (“Question (b)”), was “To the best of your knowledge has any proposed animal had: … (b) any accidents, illness/disease, been blistered, denerved or operated upon or had sprained tendons?”. Dr. Blass answered that “No”. At the end of the Proposal Form was a “Declaration” (“the Declaration”). The Declaration included:-

“I hereby warrant the truth of the whole of the above particulars and that no animal is insured elsewhere. I also agree that this proposal as written hereon shall be the basis of the Contract for the proposed insurance and that if anything be untruly stated, or any information calculated to influence the decision of Underwriters withheld, any Contract or Agreement made or entered into in pursuance of this proposal shall be void.”

The Certificate was dated 16 June 2005. The manuscript in which the PPE Certificate was completed was not especially easy to read. However, beside the printed words, “Acquired marks/brands/microchip” Miss Randall wrote. “Scarring left fore pastern left fore distal caudal radius and rear hind plantar proximal metatarsus”. The latter part (that is, excluding the reference to the left fore pastern) of that record of scarring seemed to be the visible consequences of the Neurectomies. In the section headed, “REPORT OF EXAMINATION” Miss Randall completed the printed words so that the whole read:-

“I find no clinically discoverable signs of disease, injury or physical abnormality other than those here recorded (or recorded on the attached sheet)

1.

Small nodule left ear 2. Large cold splints on all limbs 3. Turns out the right fore 4. Left eye – ruptured corpora nigra hanging into the pupil, Y-shaped suture line cataract 5. Small thickening left lower mandible 6. Right eye 3^rd eyelid non pigmented 7. Flexion tests within normal limits for age 8. Bony exostosis left fore pastern 9. Small nodule left flank.”

Miss Randall had marked the Certificate to indicate that there was no attached sheet. She completed the “OPINION” section to record her view that on the balance of probabilities the conditions which she had set out were not likely to prejudice the Horse’s use for “dressage”. The Certificate contained no express reference to the Neurectomies or to the implications of the Neurectomies having been carried out on the future performance of the Horse.

Miss Randall’s case was that, when she despatched the Certificate to Dr. Blass, she sent with it a copy of the Wright Report. That Dr. Blass denied. However, in an e-mail dated 3 July 2005 to Mrs. McGivern Dr. Blass enquired, in the context of the then condition of her horse “Boswell”,

“I wondered if you were familiar with Ian Wright (the surgeon that did Pinky) enough to be able to phone and ask him if he knows of any new or experimental treatment for this type of injury.”

A written Contract of Sale (“the Contract”) dated 4 July 2005 and signed by Dr. Blass and Mrs. James on 8 July 2005 was put in evidence. The Contract included:-

“This is to confirm the terms agreed verbally & on email between Nicola McGivern on behalf of Upstall Services Ltd. & Active Equestrian Ltd. (Vendors) and Eddie Blass (Purchaser) regarding the sale of Active Panther (Pinkie).

…

Ownership of Pinkie passes to the Purchaser from the 13^th June 2005 and in no circumstance can the Purchaser claim any part of the balance as not owing. Responsibility for all costs other than Livery (to include but not exhaustively, farrier, dental & veterinary costs) & responsibility for insuring the horse lies with the Purchaser as of this date.”

Mrs. James produced, on the printed stationery of Active, a receipt dated 27 July 2005 on behalf of Upstall for the sale of the Horse to Dr. Blass at a price of £45,625, “following your satisfactory vetting.”

The account which Dr. Blass gave of the date of the Examination in her first witness statement, dated 7 September 2007, was:-

“13)

On the day of the vetting I rode my other horse early in the morning and left Sedges Farm telling Natalie, the yard manager at the time, that I would be back for the vetting as soon as I knew when it was. I also phoned the vets surgery and asked for a time. They said they didn’t know yet so I went home. At 10 am, I received a call from Natalie saying the vetting was taking place and why wasn’t I there. I phoned the vets surgery again to see if this was correct. They confirmed that Sarah was already there carrying out the vetting. Neither the vets practice nor anyone at Active Equestrian had informed me of this until Natalie called. I left for the yard straight away.

14)

When I arrived at Sedges Farm, Sarah had already completed all the flexion tests, all the trotting up, and the lunging of the horse. Indeed, there was only the ridden element of the vetting to be completed. Andrew was taking Pinky out of the school having been lunged to be tacked up to be ridden. Sarah and I remained outside the indoor school alone.

15)

I asked Sarah at this point to tell me about Pinky’s past as Nicola had said she could tell me everything. Sarah told me about the ‘decompression’ that Pinky had on his right hind and left fore. She said that it is a procedure that was developed by a Professor Boehring ... in Germany and helped a condition called proximal suspensory desmitis, where pressure on the suspensory meant that the horses couldn’t collect as well as they might, and that it was only really a condition that occurred in top dressage horses and show jumpers as they really needed to collect. She specifically said that it was NOT a neurectomy as horses that had had neurectomies were not allowed to compete under FEI rules. (I thought this statement was peculiar as my understanding at the time was that neurectomies could only be done in feet, but as she had said it was ‘not’ that, I didn’t question it). She said that there was a risk that the procedure would not hold beyond another 6 months.

16)

I asked what would happen if it didn’t hold. Sarah replied that he could have the procedure repeated as it was a 10 minute procedure, and it had been carried out by Ian Wright.

17)

I asked what Sarah thought the risk was, as this was the most expensive horse I had ever thought of buying. Sarah replied that the cases she’d seen that hadn’t worked hadn’t ever come sound and that Pinky had never been lame, just shorter and tighter in his collected work. She said that he was definitely very sound now and looking good, so she thought the risk was small, but did advise that if I could lease him for 6 months first then I would be able to be sure.

18)

Andrew then came back out with the horse and he was ridden in a snaffle bridle and draw reins. While he was being ridden Sarah continued to comment on how sound the horse was, how well he was working, and how the decompression appeared to be a complete success, and where they hadn’t been, they generally hadn’t got to this point.

19)

I checked again what the consequences of the risk were if it didn’t hold – even though the risk looked very small at that time – and she confirmed that he could have it done again. We even discussed approximate cost of the repeat procedure and a figure of around £1500 to £2000 was quoted.

20)

We then moved on to talk about the x-rays she had taken of the horse, and how good his joints were for a horse of his age and level of training. He had no chips of bone in his joints.

21)

The horse then went back to the solarium to be untacked. As he walked away from us out of the door and up to the solarium, I pointed out to Sarah that his pelvis was tilted down to the right. She said it had always been like that and that was just him. Pinky was led into the solarium and Sarah and I followed slowly behind. Shirley and Andrew took the tack off the horse (saddle and bridle removed simultaneously as the draw reins link the two so you can’t take one off without undoing the other). Shirley then removed the boots and bandages from the horse before leaving the solarium. The horse had not sweated sufficiently from the work to require hosing off.

22)

During this time Sarah talked to me about the horse’s history from when she vetted him for Nicola. She talked about the fact that she was pregnant at the time and had been really sick on the flight to Denmark and so forth, and then had gone in and tried looking at the horses [sic] eye’s [sic] without getting his trust first and Pinky not letting her near him, and how you had to gain Pinky’s trust first. She patted him a lot and eventually took hold of his headcollar and looked in his left eye, telling me about the irregularity he had, and explaining that it had been a risk for Nicola really, but given it hadn’t changed since he had been at Nicola’s it wasn’t really a risk anymore.

23)

Sarah then talked about the scars on his legs. She pointed out the scars from the decompression, stating that it was hard to see them, and that he had so many little scars/bald spots on his legs that they wouldn’t really draw attention, and you generally couldn’t see them unless he was clipped. She also pointed out the large scar and extra scar tissue at the back of his left pastern which she summised [sic] was probably an old wire cut or some such, but that she had x-rayed etc when purchasing for Nicola and it was not material then and shouldn’t cause any problem in the future.

24)

I then walked Sarah back to her car. She said how much she liked the horse and how pleased she was that I was considering buying him. I said I was going to talk to Nicola about the idea of the lease for 6 months first. Sarah left asking me to phone her and let me know how I got on. I drove to The Field House to talk to Nicola.”

Dr. Blass did not say, either in her witness statement or in cross-examination, that she had told Miss Randall that she wanted to be able to compete on the Horse at Prix St. Georges level and above under FEI rules. There was no other evidence in support of those allegations in paragraph 11 of the Particulars of Claim. In his cross-examination of Miss Randall Mr. McPherson suggested that it had been up to her to ask for what purpose Dr. Blass required the Horse. Miss Randall’s evidence was that she had been told by Mrs. McGivern that Dr. Blass required the Horse as a schoolmaster.

In cross-examination Mr. John Corless, who appeared on behalf of Miss Randall, asked Dr. Blass about the statement of the date of the purchase of the Horse, and the amount paid, entered in the Proposal Form. Dr. Blass accepted that the relevant words were in her handwriting and that she had signed the Proposal Form. Dr. Blass accepted that her statement of the price paid was inaccurate. She explained that as a consequence of her decision not to insure the Horse in its full value. She seemed to think that there was some link between that decision and a false statement on the Proposal Form as to the price paid. She agreed that she had decided to purchase the Horse subject to the Examination by 9 June 2005 and that she determined to proceed with the purchase after the Examination, but before receiving the Certificate. The submission of the Proposal Form seemed clear evidence of that decision. However, a consequence of that evidence had to be that the claim against Miss Randall based upon alleged reliance by Dr. Blass on the terms of the Certificate failed.

Dr. Blass was asked in cross-examination about the reference in her e-mail dated 3 July 2005 to Mrs. McGivern to “Ian Wright (the surgeon that did Pinky)”. It was suggested to her that that reference indicated that Miss Randall had indeed sent a copy of the Wright Report to her. Dr. Blass responded that she had been told about Ian Wright’s role by Mrs. McGivern between the date of the Examination and the date of the e-mail. It is also right to say that in her witness statement, at paragraph 16, she had said that Miss Randall on the day of the Examination had said that it had been Ian Wright who had carried out the decompression.

A document to which the attention of Dr. Blass was invited during the course of her cross-examination was an e-mail which she had sent to Mrs. McGivern on 5 September 2005. That e-mail began in this way:-

“I just wanted to thank you again for coming out to see Pinky today – I really did appreciate it. I’ve booked him in to see Ian on Thursday. Sarah has agreed that he can look at him between operations. I’ll try to get down there to discuss the results directly with Ian and options like firing, and so forth.

Then, depending on what he says, I’ll phone the insurance on Friday, claim I’ve been away at a conference and say Panther went lame and the yard vets were called but I will be using Torsten from that point on. That way hopefully Torsten wont have to re-do anything and I can still claim for the vet fees.”

Dr. Blass told me that she had not in fact intended to act as she described in the e-mail, but she told Mrs. McGivern what she did because she was seeking to fend her off. Dr. Blass accepted that it followed that what she had said to Mrs. McGivern was untrue.

In her evidence Dr. Blass did not contend that she was unaware of the fact that Upstall was a client of Miss Randall. Rather she said that Miss Randall was the yard vet and it was a condition of the contract by which she obtained livery for her horses at the Stables that she use the veterinary services of Miss Randall.

Miss Natalie Hubble, who had been the yard manager at the Stables in June 2005, although in the process of taking over from her predecessor, Shirley Thurston-Woolnough, was called to give evidence on behalf of Dr. Blass. Miss Hubble was not involved in the Examination as such. All she could really say was that her recollection was that Dr. Blass was not at the Stables when Miss Randall arrived to undertake the Examination, and that she had telephoned Dr. Blass to tell her that Miss Randall had arrived at the Stables. In her witness statement she said that she was not able to say when the Examination commenced, but presumed that it had started before the arrival of Dr. Blass. In cross-examination she told me that she was not contending that Miss Randall had actually started the Examination before Dr. Blass arrived, only that Miss Randall had begun to look at the Horse. Miss Hubble said that she did not know when Miss Randall began the Examination. She also said that she knew from yard gossip that the Horse had had an operation, but she did not know what that operation had been.

Miss Randall’s account of the Examination was quite different from that of Dr. Blass. The material part of her witness statement dated 31 July 2007 was to this effect:-

“14.

The Pre-Purchase Examination took place on Monday, 13 June 2005. …

16.

I have no doubt Dr. Blass was fully aware that I was the Veterinary Surgeon for both the purchaser and the vendor. When I first arrived at the Yard Dr. Blass met me in the Courtyard. I advised her Nicola McGivern had given me full authority to disclose everything to her. She was aware the vendor was a client. Both Fiona James and Nicola McGivern had made it clear that all information was to be disclosed to Dr. Blass.

17.

One of my first questions was to enquire whether Nicola McGivern had disclosed everything to Dr. Blass. She said Nicola McGivern had advised the horse had had decompression operations, but was now sound. I advised her there was more to it than that. I can distinctly recall this conversation. We were actually outside the Barn on the cobbled Courtyard. I explained to her in some detail about the surgery. I informed her the operation involved cutting the nerves in the limbs. I said the nerves had been cut to painful areas. I also advised her I had originally vetted the horse in Denmark. The horse had had full x-rays at that stage and there had not been anything of any major concern, but I informed her if she wanted to be sure now she should x-ray the horse as the original Veterinary Examination had been over eighteen months ago. I also advised her the horse had only had its surgery just before Christmas. We were therefore only five months down the line and at some point the nerve would grow back and lameness could reoccur. I told Dr. Blass in some instances the lameness would reoccur and in some instances it would not. It was impossible to predict. I informed her the limb could break down under pressure.

18.

I therefore advised Dr. Blass, before I even undertook the Veterinary Examination, that she should see if she could lease the horse for six months before she purchased it. I told her quite categorically she should not buy the horse at this stage. Indeed I had not even agreed to further Vet the horse at this stage.

19.

Dr. Blass looked a little shocked. I then asked her whether she was sure she wanted me to Vet the horse. She said she wished me to proceed because she would then know if there was anything else that was an issue.

20.

I was therefore clear in my own mind before the Veterinary Examination was conducted that firstly, the purchaser had been aware the vendor was also a client and had no objection; secondly, that she was appraised the vendor had agreed to admit to the disclosure of anything relevant to the case history and to that end I had disclosed anything relevant in the horse’s history.

21.

At no stage did Dr. Blass inform me as to her purpose for the horse. Nicola McGivern had advised me Dr. Blass had wanted the horse as a Schoolmaster. There was never any mention of the horse being required to compete at FEI Level. Dr. Blass did not ride at that level. She was competing at Novice Level at the time.

22.

FEI was never mentioned whether before the commencement of the PPE [that is, the Examination] or during the course of the same.

23.

Dr. Blass asked me to proceed with the Veterinary Examination. Shirley Thurston was present throughout the course of the Veterinary Examination. Andrew Storr, a Groom and rider, arrived for Stage 3.

[Miss Randall then described in detail how she had undertaken the Examination.]

25.

Having completed my Veterinary Examination I advised Dr. Blass nothing had changed and my view was still the same as before I commenced the Examination, namely that she should see if she could lease the horse for six months. If following that leasing period she still wanted to buy the horse she should have a further veterinary Examination at that stage. My advice was clear, namely it would not be appropriate for her to buy the horse now.

26.

The horse was, however, fit to be passed for purchase.

27.

…

28.

I returned to my Practice and then duly completed the Certificate on 16 June 2005. The initial part of the form was completed by Sam Nicholls. I asked her to ensure Ian Wright’s report was available and I personally recall photocopying Ian Wright’s report and putting it with the Certificate in an envelope marked for Dr. Blass’s attention. I am absolutely certain Ian Wright’s letter of 6 December 2004 accompanied the Pre-Purchase Certificate.”

It was thus common ground between Dr. Blass and Miss Randall that, on the occasion of the Examination, a lengthy conversation had taken place between them, even though they differed as to at what point in the process the conversation had taken place. It was also common ground that something had been discussed between them about a treatment to which the Horse had been subjected but which was not specifically mentioned in the Certificate. Some elements in the conversation of which each gave evidence, such as the discussion about Dr. Blass trying to lease the Horse for a period of six months, and Miss Randall having been to Denmark to conduct an Examination of the Horse, were similar. However, on the important points the evidence was dramatically different.

Miss Randall was pressed hard by Mr. McPherson in cross-examination as to the accuracy of her account of the Examination and of her conversation with Dr. Blass. However, she remained firm that what she had said in her witness statement was correct, subject to the correction she made before verifying her witness statement that Shirley Thurston-Woolnough – the lady she referred to as Shirley Thurston – had not in fact been present throughout the examination, but at the start and at the end. Miss Randall explained that she had not made any reference in the Certificate to the Neurectomies or the significance of them because the form of a PPE Certificate was directed at the condition of a horse as found on the occasion of an Examination, and there was no provision on it for recording the relevant medical history of the horse. On the face of the PPE Certificate that seemed to be correct. Miss Randall said that her practice at the time had been to discuss with a prospective purchaser the relevant medical history so as, amongst other things, to provide the prospective purchaser with an opportunity to ask questions and to be sure that he or she understood the significance of the history. Miss Randall told me that, in the light of her experience in this case, she now sets out the relevant history in writing and requires the prospective purchaser to sign a copy of the history to acknowledge that the history had been communicated and understood. She was clear in her cross-examination that she had told Dr. Blass on 13 June 2005 that the Horse had been lame and that she should not buy it at that time.

Mrs. James was called to give evidence on behalf of Miss Randall. Much of her evidence related to the history of her dealings with the Horse and the negotiations for sale to Dr. Blass, which matters were not of direct materiality to any issue in this action. What was relevant was what she had said at paragraphs 8 and 10 of her witness statement dated 30 August 2007:-

“8.

Nicola McGivern then [after a discussion with Mrs. James about the price to ask Dr. Blass for the Horse] called Dr. Blass, in my presence, and told her that the horse had been operated on & that she should speak to Sarah Randall to get the full details. I had also confirmed this to Dr. Blass when I had seen her on the yard. I believe that Nicola then called Sarah Randall in the presence of Dr. Blass giving authority for “Pinky’s” full veterinary history to be made available to Dr. Blass. As a director of the company who owned “Pinky” I also gave my permission to Sarah Randall to release his veterinary history & to discuss it with Eddie Blass.

9.

...

10.

Dr. Blass stated that she wanted to use Sarah Randall for the Veterinary Examination because she was her Veterinary Surgeon, but Sarah Randall was also a Veterinary Surgeon for Active Equestrian and Upstall Services Limited and Dr. Blass had been informed of this. I was not present when the Pre-Purchase Examination was conducted although 2 of Active Equestrian’s members of staff were present: Shirley Thurston & Andrew Storr.”

Mrs. James told me in cross-examination that she and Mrs. McGivern had believed that the Horse had undergone a decompression and had said that to Dr. Blass before Dr. Blass decided to buy the Horse. However, Mrs. James said that she and Mrs. McGivern had about 40 horses and in veterinary matters rather proceeded on the basis that it was for the veterinary surgeon to advise on any treatments needed by any of the horses, which advice they were accustomed to accept. Mrs. James said that she knew that Miss Randall had advised that the Horse have an operation at the beginning of December 2004 and that she had agreed to that. Mrs. James was vague as to the details of the operation, but from some source, either Miss Randall or Mr. Wright, she had understood that the operation was a decompression. However, she also confirmed her evidence in her witness statement that Dr. Blass had been told to seek full details as to the operation on the Horse from Miss Randall. Mrs. James was asked in cross-examination to comment upon the riding ability of Dr. Blass. She said that she had seen Dr. Blass ride on at least ten occasions on various horses and considered her to be a “passenger rider”, by which she meant someone who could not train a horse, but who could ride horses trained by others. She said that she would be very surprised if Dr. Blass was capable of riding in international FEI competitions.

Dr. Blass accepted, I think, that Miss Randall had been authorised to disclose the veterinary history of the Horse to her, but she denied that she had been told by anyone prior to purchasing the Horse that it had undergone any operation or had been lame.

Shirley Thurston-Woolnough prepared a witness statement dated 25April 2007 which was adduced at trial, but she did not herself attend. It was accepted by Mr. McPherson that the witness statement of Shirley Thurston-Woolnough could be put before me pursuant to the provisions of Civil Evidence Act 1995, but he stressed, naturally, that the reliance which could be placed upon it was limited because it had not been tested in cross-examination. Shirley Thurston-Woolnough’s evidence was to the effect that she had been the yard manager at the Stables until the end of June 2005 and had been present for part of the time the Examination was undertaken by Miss Randall. The core of the evidence of Shirley Thurston-Woolnough was:-

“4.

I was present during part of the Pre-Purchase Examination. I was in the middle section of the Solarium. “Pinky/Active Panther” was located in one of the rooms off the Solarium in one of the wash-off Boxes. As I was standing there I distinctly recall hearing Sarah Randall saying how the scars had healed up well. She was pointing out to Dr. Blass where the neurectomy operation had taken place in respect of each limb. She definitely used the word ‘neurectomy’ and I recall her pointing out the scars. I was assisting with tacking up the horse at this point. I then departed and allowed the Pre-Purchase Examination to continue. Andrew Storr remained.

5.

After the Pre-Purchase Examination I was coming out of the Riding School and I met Eddie Blass. I asked her whether the horse had passed the Examination. She said “not really”. She then went on to say Sarah Randall had advised her there had not really been enough time since the operation and she did not know what to do. She told me Sarah Randall had suggested to her she should try and lease/loan the horse. I simply said I thought that was a good idea and why did she not go and speak to Nicola McGivern. I was left with the impression that that was what she intended to do. In short, that she intended to see if she could lease/loan “Pinky” until enough time had passed to establish whether the operation had been successful and then if the horse remained sound she would purchase him at a later date.”

Miss Randall gave evidence of a discussion with Dr. Blass about scarring on the Horse in describing the process of the Examination. What she said in her witness statement was:-

“The Stage 1 Examination took me approximately thirty minutes and during the course of this process as I reached the scars on the left foreleg, which was on the aspect of the forearm above the knee, and then the right hind just below the hock, I asked Dr. Blass to come over to have a look at the scarring. I then described to her how the nerve had been cut. I did explain to her to some extent about the nerves growing back, explaining to her as I did so where the painful areas had been located. I advised that the growing back of the nerves may be a painful process. I distinctly recall doing this in relation to the left forelimb and subsequently with the right hind. In short, I specifically brought her into the area of my examination so she could see the scar.

At no stage during any of my discussions with Dr. Blass did I refer to either operation as being a decompression operation. This would have been an incorrect term in any event because the surgery on the right hind was partly decompression surgery, but it was also a neurectomy. Surgery on the left fore was just a neurectomy. It would have been a nonsense to have used the term decompression surgery and an incorrect description.”

Mr. Andrew Storr gave evidence on behalf of Miss Randall. In June 2005 he was employed by Active at the Stables. His job included riding horses for Examinations. He rode the Horse on the occasion of the Examination. He said that the Examination was in progress when he arrived and that, so far as he recalled, Dr. Blass was in attendance on his arrival. Mr. Storr told me that he recalled some conversation between Miss Randall and Dr. Blass concerning the operations which the Horse had, or had not, undergone, but he did not remember the detail. His main contribution in evidential terms concerned whether, during the riding part of the Examination, the Horse was ridden with draw reins. As I have recorded, it was the evidence of Dr. Blass that draw reins were used. It appears that draw reins are used in training. As I understand it, the use of draw reins could inhibit the freedom of action of a horse and thus conceal defects which might have been apparent without the use of draw reins. The implicit suggestion in the evidence of Dr. Blass that draw reins were used was thus that the Horse had been tacked up on the occasion of the Examination in such a way as to conceal defects in it. Mr. Storr vigorously denied that he had ridden the Horse with draw reins. He told me that he rode the Horse with a snaffle bit and a single rein and that for the second part of the Examination a bridle and a long rein were used.

In August 2005 Mr. David Hole was employed by Miss Randall as a clinical assistant. He was called to give evidence about the events of 23 August 2005. In his witness statement dated 18 April 2007 Mr. Hole said:-

“2.

On 23 August 2005 I was present at Sedges Farm, Great Missenden. I was holding “Panther”. Whilst Sarah Randall MRCVS, was attending to the horse a conversation ensued between Dr. Eddie Blass and Sarah Randall. During the course of that conversation Dr. Blass told Sarah Randall that she had changed “Pinky’s” name to “Panther” and she had insured him without any declaration of his previous surgery.

3.

Sarah Randall immediately told Dr. Blass she did not wish to be involved in, and she certainly would not approve of, any attempt to defraud Dr. Blass’s Insurance Company and she would not continue to be involved in the treatment and attendance to her horse if that was Dr. Blass’s intention.

4.

During the course of the conversation Sarah Randall also reminded Dr. Blass that she had specifically advised her to lease “Pinky/Panther” and that she should not purchase him. ”

In cross-examination Mr. Hole told me that he was pretty certain that the word “neurectomy” was used during the conversation between Dr. Blass and Miss Randall which he overheard.

The relevance of the evidence of Mr. Hole to this action was that, if Mr. Hole was accurate, Dr. Blass was aware on 23 August 2005 that the Horse had undergone a neurectomy, whilst her evidence to me was that she did not discover that until some time in about September or October 2005 after the Horse had been referred to Professor Roger Smith at the Royal Veterinary College and Professor Smith had made contact with Mr. Wright. At one point in her cross-examination Dr. Blass seemed to be suggesting that she had not been aware of the Neurectomies until the beginning of January 2006. It is fair to say that Dr. Blass also told me that on an occasion in about September 2005 when she met Miss Randall at the Stables a row had developed between them in which Miss Randall had shouted that the Horse had had neurectomies, but she, Dr. Blass, had not attributed any real significance to what was said. Dr. Blass did agree that she had met Miss Randall and Mr. Hole on 23 August 2005 at the Stables and that on that occasion Miss Randall had said that she did not want to have anything to do with an insurance claim. Dr. Blass told me that what she was considering at that time was making a claim in respect of the costs of veterinary fees for treating the Horse for lameness which had developed by that stage.

In her witness statement Miss Randall dealt with her contact with the Horse and with Dr. Blass after the sending of the Certificate in this way:-

“30.

I next saw “Panther”(“Pinky”) Blass on 16 August 2005. My next visit was on 23 August 2005. “Panther” presented lame on his left foreleg. Lameness was increased on a soft surface on the outside of a circle and there was pain on palpation of soft tissue structures in the proximal palmar metacarpus. Dr. Blass was present and I explained to her it was possible this could be a reoccurrence of “Panther’s” previous condition (proximal since [sic] suspensory desmitis), but I would need to nerve block the horse in order to confirm the site of pain. At this point Dr. Blass stated that if this were his old problem she would instigate a loss of use claim. It was then evident Dr. Blass had insured the horse without revealing the prior surgery. I advised Dr. Blass she should have declared “Panther’s” surgery when she insured him and that I had provided her with a full surgery report so that she could submit it. I advised her I could not possibly be a party to a potential insurance fraud and I therefore asked her if she wished me to continue to nerve block the horse and she consented. The nerve block confirmed the site of pain to be the proximal palmar metacarpus. I advised Dr. Blass ultrasound and radiography would be required to confirm the provisional diagnosis. Dr. Blass elected to work the horse on Bute [a pain-relieving drug] against my advice and it was at this stage that she enquired if the operation could be repeated. I informed her I would need to contact Ian Wright, MRCVS, with regard to this. After a discussion with Ian Wright I advised Dr. Blass he had never repeated the operation, but he was prepared to attempt a repeat if this was deemed necessary provided Dr. Blass understood this would be experimental surgery.

31.

On 5 September 2005 I was asked to re-examine “Panther”. He was very lame on his left foreleg and very painful on palpation of the proximal suspensory ligament. He was rearing up when any pressure was applied. “Panther” was booked to attend the Chiltern Equine Clinic on 8 September 2005 for radiographs, ultrasound and examination by Ian Wright, MRCVS, who was attending our Clinic as a Surgeon. Dr. Blass was also concerned the cause of the pain was the horse’s kidneys and I therefore ran a blood function test.

32.

Dr. Blass subsequently cancelled the appointment with Ian Wright, offering no explanation. This was the end of my involvement in the case. No history or medical notes were ever requested from me by the superseding Veterinary Surgeons.

33.

At some later stage I was at the Yard when Dr. Blass asked to have a word with me. She said she did not wish to get me into trouble and I told her that she could not because I had not done anything wrong. I knew she was making a complaint to the College and I felt in some way she was trying to pressurise me. I simply said to her: “Eddie, you knew the risk. You put money on red and it came up black. It is not the Insurance Company’s responsibility to pay for your foolishness.” I kept this conversation short and left. ”

It appears that the latter occasion was that upon which Dr. Blass said that she had a row with Miss Randall. Dr. Blass accepted in cross-examination that Miss Randall had indeed said what she contended she had said.

For the reasons which I have endeavoured to explain, the issue of liability in this action simply depended, in the end, upon whether I accepted the evidence of Dr. Blass or that of Miss Randall as to what, if anything, was said about the Neurectomies or about decompression on 13 June 2005, and what had been said about the consequences thereof. The dramatic nature of the difference between the evidence of Dr. Blass, on the one hand, and that of Miss Randall, on the other, seemed to me to leave little scope for some failure of recollection, or misunderstanding, as to what had been said about the central questions, what had been done to the Horse and what was the significance of what had been done to the Horse. As Miss Randall knew the truth about the Neurectomies, and it was not suggested that she had forgotten about them or did not say anything at all about any treatment, Dr. Blass’s evidence that Miss Randall said that the Horse had undergone a procedure called decompression, that the Horse had never been lame, that he had never had undergone an operation and that Miss Randall had in terms said that the Horse had not undergone a neurectomy, involved, if I accepted that evidence, the finding that Miss Randall had deliberately lied to Dr. Blass. It amounted really to an allegation that she had fraudulently misled Dr. Blass as to the condition of the Horse.

As it seemed to me, it was material to have in mind when assessing the evidence of Dr. Blass and that of Miss Randall that Miss Randall was not herself the owner of the Horse. It was not suggested that she had any personal interest, financial or otherwise, in whether the Horse was sold to Dr. Blass or not. Miss Randall’s evidence that she had been authorised to disclose the correct and true history of the Horse to Dr. Blass was not challenged.

Against that, Mr. McPherson relied heavily in support of his submission that I should reject the evidence of Miss Randall upon the facts that the Certificate contained no reference to “neurectomy”, and it contained no reference to “proximal suspensory desmitis”, the condition which had prompted the undertaking of the Neurectomies. Mr. McPherson contended that any reasonably competent veterinary surgeon would have noted both of those names on the Certificate, if those conditions had been identified or discussed, and so I should conclude from their absence from the Certificate that Miss Randall had not mentioned either to Dr. Blass. The force of that submission obviously depended in part upon whether any reasonably competent veterinary surgeon would have noted those words on the Certificate, if those conditions had been identified or discussed. As the converse of the first of these points Mr. McPherson relied upon the fact that in the “Report of Examination” section in the Certificate Miss Randall had listed nine minor matters which were not in fact of any significance in terms of the fitness of the Horse for dressage.

Mr. McPherson also relied upon the absence of any contemporaneous notes made by Miss Randall, and in particular the absence of anything in the nature of an attendance note recording the giving of the details of the medical history of the Horse to Dr. Blass. Mr. McPherson pointed out, correctly, that Miss Randall had made manuscript notes on the occasion of her first inspection of the Horse in Denmark, and that those notes included a note that Miss Randall had had a conversation with Mrs. McGivern about what she had found on that Examination. Mr. McPherson accepted that it was not in fact in dispute that Miss Randall and Dr. Blass had had some conversation concerning the medical history of the Horse, but he contended that a reasonably competent veterinary surgeon would have made a note of such conversation, and the absence of such a note should be regarded as weakening the credibility of Miss Randall.

While Mr. McPherson recognised that it was not in dispute that Miss Randall had recommended to Dr. Blass that she lease the Horse for six months before committing herself to buy him, he contended that, if, as she said, Miss Randall had advised against the purchase of the Horse, she should have done so in writing. Again, he submitted, the failure to produce what he contended was a document which no reasonably competent veterinary surgeon could have failed to produce damaged the credibility of Miss Randall. However, he also submitted that it was incredible that, if, as she said, Miss Randall had decided, before even seeing the Horse on 13 June 2005, to recommend against Dr. Blass purchasing it, she did not telephone to give that advice and avoid a visit to the Stables to carry out the Examination.

On the face of the Certificate the Wright Report was not mentioned and it was not indicated that any attachment was sent with the Certificate. Mr. McPherson submitted that I should conclude from those circumstances that Miss Randall had not in fact sent a copy of the Wright Report to Dr. Blass with the Certificate.

In the course of her cross-examination Miss Randall told me that on the occasion of the Examination she had taken with her to the Stables various papers, including a copy of the PPE Certificate which she had completed after her first Examination of the Horse in Denmark and documents produced at the time of that Examination, as well as the medical history of the Horse. Miss Randall had not referred to taking any papers to the Examination on 13 June 2005 in her witness statement, or in any other document produced prior to her cross-examination. Mr. McPherson contended that I should conclude that Miss Randall had just made up the evidence about the documents in the witness box.

Other matters upon which Mr. McPherson relied in support of his submission that I should accept the evidence of Dr. Blass in preference to that of Miss Randall were the evidence of Miss Hubble, which did not support the evidence of Miss Randall that Dr. Blass had been at the Stables on 13 June 2005 when Miss Randall arrived; evidence in the witness statement of Dr. Blass, on which she had not been cross-examined, as to her unlucky history with other horses and her wish in June 2005 to purchase a horse with no defects; the fact that Dr. Blass was not desperate for a horse in June 2005, as she already owned three; and the terms of the answer to Question (b) on the Proposal Form.

The evidence of Miss Hubble was indeed that Dr. Blass arrived after Miss Randall. However, it did not support the evidence of Dr. Blass at paragraph 14 of her witness statement that Dr. Blass arrived after much of the Examination had been undertaken, while Mr. Storr was taking the Horse away to be tacked before being ridden. Miss Hubble’s evidence in fact supported neither the evidence of Miss Randall nor that of Dr. Blass on the question of the timing of the arrival of Dr. Blass.

Mr. McPherson’s submission in relation to Question (b) was that the answer given indicated that, if Dr. Blass was answering truthfully, she had not been told that the Horse had undergone the Neurectomies. That is correct. However, on her own case, Dr. Blass had been told by the time she came to complete the Proposal Form that the Horse had undergone a decompression. Dr. Blass was vague in her evidence as to what she thought, as at 13 June 2005, a decompression was. However, one might have thought that, whatever it was in detail, it involved the Horse being “operated upon”. Of even greater significance, as it seemed to me, was that in her answer to the question as to “Price paid” Dr. Blass had stated a deliberate untruth, and had then signed the Declaration, warranting the truth of the information given in the Proposal Form.

All of Mr. McPherson’s points based on what he contended a reasonably competent veterinary surgeon would have done, but which Miss Randall did not do, were taken from a publication (“the Manual”) of British Equine Veterinary Association published in 1998 called “The Pre-Purchase Examination” and edited by T.S. Mair. It was plain from the back cover of the Manual that the contents did not purport to set out the standards to be attained by any reasonably competent veterinary surgeon. What was said on the back cover was:-

“This publication is the second in a series of manuals commissioned by the British Equine Veterinary Association for its members. It is a collection of personal views of experienced practitioners intended primarily to raise awareness of the issues and arguments involved in the current concept of the pre-purchase examination …”

I am afraid that, in the end, I did not find the submissions founded on the hypothesis that any reasonably competent veterinary surgeon would have done X; Miss Randall did not do X; therefore her evidence of her conversations with Dr. Blass should be rejected, helpful. Ironically it was implicit in that analysis that Miss Randall is, and was in June 2005, a reasonably competent veterinary surgeon, whereas the claim against her was put in negligence. It seemed to me that my real task was the old-fashioned, and very familiar, judicial process of deciding who was telling the truth.

The evidence of Dr. Blass essentially stood on its own. As I have pointed out, it was not supported in any meaningful sense by the evidence of Miss Hubble.

The Particulars of Claim, supported by a statement of truth from Dr. Blass, included the allegation, in paragraph 9, that the Examination of the Horse had taken place on 17 June 2005. That was an erroneous assertion, and one which was abandoned at the commencement of the trial. However, it was unclear how that error had been made in the first place. There was abundant documentary evidence, to which I have referred, that the Examination took place on 13 June 2005. One of the relevant documents was Dr. Blass’s own e-mail to Mrs. McGivern of 9 June 2005. Dr. Blass could thus have reminded herself of the correct date simply be re-reading her own e-mail. Another relevant document was Miss Randall’s bill for her services in conducting the Examination. The inclusion of the erroneous pleas concerning the date of the Examination thus indicated at very least failure of recollection on the part of Dr. Blass as to the correct date, and want of care in the preparation, and checking by Dr. Blass before signature of the statement of truth, of the Particulars of Claim.

Another curious aspect of the Particulars of Claim was the plea in paragraph 11 that Miss Randall knew that Dr. Blass wanted to be able to compete on the Horse at Prix St. Georges level and above under FEI rules. No evidence at all in support of that allegation was led, and there was no evidence to suggest that any aspiration of Dr. Blass to compete at international level was realistic.

In the light of the evidence it was difficult to understand how the allegation that Dr. Blass had relied on the terms of the Certificate in deciding to purchase the Horse had ever been made. The contemporary documents showed clearly that that had not been the case and Dr. Blass made no real effort in her evidence to support this part of the pleaded case.

Another allegation which it seemed, in the light of the evidence, should never have been included in the Particulars of Claim was that Miss Randall had failed to tell Dr. Blass that Upstall was a client. On her own evidence it seemed that Dr. Blass knew that perfectly well.

As it seemed to me, the inclusion in the Particulars of Claim of allegations of fact which were plainly not sustainable on the evidence, but which were verified by a statement of truth signed by Dr. Blass, was material to the assessment of her credibility.

Moreover, Dr. Blass admitted that in two documents put in evidence she had made statements which she knew at the time she made them were false. The first was in answering the question in the Proposal Form as to the price paid for the Horse. The second was in her e-mail to Mrs. McGivern dated 5 September 2005.

Miss Randall’s evidence, on the other hand, did not stand alone. The evidence of Shirley Thurston-Woolnough, although not able to be tested in cross-examination, could nonetheless not be ignored. It was to the effect that she heard Miss Randall on 13 June 2005 pointing out the operation scars on the Horse to Dr. Blass and using the word “neurectomy” in that context; that Dr. Blass had told her after the Examination that the Horse had not really passed; that Miss Randall had advised that there had not been enough time since the operation; and that Miss Randall had suggested that Dr. Blass try to lease the Horse. Mr. Hole’s evidence, which was the subject of cross-examination, supported the case of Miss Randall that Dr. Blass was aware, before Dr. Blass accepted that she had been, that the Horse had undergone surgery. Mr. Hole was pretty certain that the word “neurectomy” had been used on the occasion in question. Mr. Storr supported the evidence of Miss Randall, contrary to the evidence of Dr. Blass, that on the occasion of the Examination the Horse had not been in draw reins.

I accept the evidence of Mr. Hole, Mr. Storr and Mrs. James. I am confident that each of them was doing his or her best to assist the Court and that his or her evidence represented his or her best recollection of events. Neither Mr. Hole nor Mr. Storr had any personal interest in this action. Mrs. James was, perhaps, closer, as the person behind the vendor of the Horse, but, so far as I am aware, no claim has been pursued by Dr. Blass against Upstall in respect of the sale of the Horse. Certainly it was not suggested to Mrs. James in cross-examination that her evidence might have been influenced by a desire to protect the position of Upstall.

Although Shirley Thurston-Woolnough was not cross-examined, no specific reason was suggested as to why her evidence might be erroneous. To some extent her evidence was corroborated by the evidence of Mr. Hole, for an obvious reason for Dr. Blass knowing on 23 August 2005 that the Horse had undergone surgery was if, as Shirley Thurston-Woolnough said in her witness statement, Dr. Blass had been told that by Miss Randall on 13 June 2005. The evidence of Shirley Thurston-Woolnough was entirely consistent, so far as it went, with the evidence of Miss Randall. In the circumstances I accept without qualification the evidence of Shirley Thurston-Woolnough.

I am sure that, in her evidence, Miss Hubble also was doing her best to assist. However, for the reasons which I have given, in fact I found her evidence of no real value. Given the vagueness with which she gave her evidence, and in particular the clarification in cross-examination as to whether she was saying that Dr. Blass had arrived on 13 June 2005 after Miss Randall had commenced the Examination, I did not feel that I could place any reliance upon what Miss Hubble told me.

Nonetheless in the end the issue was whether I found that Dr. Blass or Miss Randall was telling the truth about disputed matters. While I obviously take into account what light was shed on contentious matters by the contemporaneous documents, such as they were, and the evidence of other witnesses which I accept, probably the most important factor in reaching my conclusion was the demeanour of Dr. Blass, on the one hand, and that of Miss Randall, on the other. I was not impressed by Dr. Blass. It seemed to me that her answers in cross-examination concerning how the Proposal Form had been completed, the terms of her e-mail of 5 September 2005 to Mrs. McGivern, and when precisely she became aware that the Horse had undergone the Neurectomies, were unsatisfactory. I formed the view that Dr. Blass was a person well capable of setting out to mislead others, in the manner she suggested she intended in her e-mail of 5 September 2005 to mislead insurers, and to lie to achieve her ends. I am confident that her claims in this action are founded upon falsehood and that her evidence, where it conflicted with that of Miss Randall, Mr. Hole, Mr. Storr, Shirley Thurston-Woolnough and Mrs. James, was a fabrication. In marked contrast, in my judgment Miss Randall is an open, frank and honest individual who told me the truth. I accept her evidence without reservation. It follows that this action fails and is dismissed.

At an earlier stage in this action it seemed to the parties that it might be appropriate to adduce expert evidence from distinguished veterinary surgeons on each side. So it was that Dr. Svend Kold was instructed on behalf of Dr. Blass and Mr. Bruce Bladon was instructed on behalf of Miss Randall. By the time of the commencement of the trial it appeared, in the light of the statement of the Points of Agreement and Disagreement produced by Dr. Kold and Mr. Bladon, that these gentlemen might have little to contribute to the resolution of the issues in this action. As matters have turned out, in my judgment they had nothing to contribute. However, each was called to give evidence. The focus of the evidence which each in the event gave was whether criticism could properly be made of Miss Randall and manner in which the information and advice which she gave to Dr. Blass was given or recorded, if, as I have found, her account was truthful and accurate.

An aspect of the appropriateness of investigating those matters, Mr. McPherson explained, was the issue of the relevance to the credibility of Miss Randall of what a reasonably competent veterinary surgeon would have done, in terms principally of writing things down on the Certificate or in an attendance note or on a document clearly setting out advice not to purchase the Horse. However, the criticisms of Miss Randall seemed, at least at one point, to veer more widely. In the end I think that Mr. McPherson accepted that what this action was really about was the truth of what had been said by Miss Randall to Dr. Blass on 13 June 2005, and not, separately from that, whether she should have written the words “horse has undergone two neurectomies” or “horse has suffered from proximal suspensory disease”, or something similar on the Certificate, or should have referred in the Certificate to the fact that the Wright Report was attached, or should have produced a formal “Certificate of Veterinary Inspection of a Horse Not Recommended for Purchase” or some similar document. However, since these matters were raised, it seems to me to be appropriate, in fairness to Miss Randall, to record my conclusions concerning them, although they are not material to my decision in this action.

Dr. Kold told me that he believed firmly that there should have been a reference to the Horse having undergone the Neurectomies on the face of the Certificate, notwithstanding that that information had been given verbally by Miss Randall to Dr. Blass, and that any reasonably competent veterinary surgeon would have included such a reference in completing the Certificate. Mr. Bladon disagreed. His view was that it was sufficient to discharge the obligation of Miss Randall to Dr. Blass that she had told her verbally about the Neurectomies and what the significance of them was.

From his evidence in cross-examination it appeared that in fact the only criticism which Dr. Kold made of how Miss Randall dealt with the Examination, the information and advice given to Dr. Blass by Miss Randall, and the completion of the Certificate, if I accepted the evidence of Miss Randall, was her failure to mention on the Certificate that the Horse had undergone the Neurectomies. He did not seek to criticise at all how Miss Randall had undertaken the Examination or the conclusions which she had drawn from the Examination.

It seemed to me, particularly from various references made by Mr. McPherson in cross-examination to passages in the Manual, that there is, perhaps, confusion in the minds of some veterinary surgeons, including in particular some of those authors contributing to the Manual, as to their legal obligations to those requesting the carrying out of an Examination. There appear to be three separate strands. One is the obligation to the person commissioning the Examination (“the Client”). A second is having a record of how the obligation to the Client has been performed. A third is the likelihood that the Client will seek to insure the horse to which an Examination relates if the horse is purchased.

In my judgment, the basic obligations of a veterinary surgeon to the Client are to conduct the clinical Examination (“the PPE”) of the horse with reasonable skill and care and to communicate clearly and comprehensibly to the Client the results of the PPE, any relevant history of the horse of which the veterinary surgeon is aware, and the significance of those results and that history, having regard to what the veterinary surgeon knows is the intended use to which the horse is to be put. As long as the relevant information is communicated clearly and comprehensibly to the Client I see no reason why it needs to be communicated or confirmed in writing. The Client does not need to be told twice what he has already been told, and understood, once.

However, it is plainly important to recognise that, if information is given orally and not confirmed in writing, in the event that there is later a dispute as to what information or advice was given, the veterinary surgeon will be handicapped in demonstrating that he or she has performed his obligations to the Client properly by the lack of any contemporaneous record. Thus as a self-defence measure it is plainly sensible for a veterinary surgeon, or, indeed, any professional person, to confirm in writing, or at least make a written contemporaneous record of, advice or information communicated. However, in my judgment the issue whether or not that defensive step should be taken is immaterial to the proper performance in fact of the obligations owed to the Client. If information or advice is complicated, it may well be difficult for a person not skilled in veterinary medicine to absorb it. Thus, on particular facts, it may be that the only sensible way of communicating information or advice, and ensuring that it is understood, is in writing, so that the information or advice can be pondered at leisure and, perhaps supplementary questions formulated. Nonetheless, if information or advice is communicated orally in clear and comprehensible terms, and appears to be absorbed by the Client, I see no need for anything else to be done as a matter of law in performance of the obligations to the Client. If he or she has been told what he or she needs to know, whether orally or in writing, that, in my view, is enough.

The curious obsession of some of the contributors to the Manual with insurance appears to result from a practice of those seeking to insure horses of providing to underwriters copies of certificates issued following Examinations. It seems to be thought that veterinary surgeons issuing such certificates thus owe some obligation to underwriters whom purchasers of horses might choose to approach for cover. If asked by underwriters to provide a certificate following an Examination, a veterinary surgeon would obviously owe a duty of care to underwriters in relation to the carrying out of the PPE and in relation to the completion of a PPE Certificate. However, some contributors to the Manual seemed to consider that a veterinary surgeon owed a duty of care to any underwriter to whom a Client may choose to show a completed PPE Certificate, whether the veterinary surgeon had been informed of the intention to show the certificate to underwriters or not. Not only that, but some contributors seemed to consider that a veterinary surgeon owed an obligation to any underwriter to whom a Client might choose to show a completed PPE not only to complete the PPE Certificate accurately, but also to make disclosure of all those matters – in particular past medical history – which it would be appropriate for a proposer for insurance to disclose. This seems to me to postulate far too high a duty on a veterinary surgeon. It really elevates the veterinary surgeon to the role of protector of underwriters from fraudulent proposals for insurance. It seems to me to be questionable whether a veterinary surgeon completing a PPE Certificate for a Client owes any duty of care at all to underwriters, certainly in circumstances in which the Client has not informed the veterinary surgeon of any intention to forward the certificate to underwriters. However, even if a duty of care is owed, I can see no justification for treating it as extending more widely than completing with proper care and skill any document which may be presented to underwriters. The point is that a PPE Certificate does not, on its face, in its current form, include any information as to the medical history of a horse. There seems to me to be no reason for imposing on a veterinary surgeon a duty of care to complete a PPE Certificate so as to include information which the form itself does not require just because underwriters might be interested in such other information.

I have expressed the views which I have in the preceding paragraphs because it seemed to me that Dr. Kold’s view about including reference in the Certificate to the fact that the Horse had undergone the Neurectomies was a reflection of the opinions to be found in the Manual upon which I have commented. With respect to Dr. Kold, in my view his opinion was wrong in law. I do not accept that his view is one such as no reasonably competent veterinary surgeon could fail to hold. I accept the evidence of Mr. Bladon that a responsible body of veterinary surgeons share his view that it was not necessary to include any reference to the Horse having undergone the Neurectomies in the Certificate if that information and its significance had already been explained verbally to Dr. Blass.

The other respects in which Mr. McPherson sought to suggest that Miss Randall had been negligent, even if her evidence were accepted, were not supported by Dr. Kold, but were derived by Mr. McPherson from various expressions of view contained in the Manual. I have already recorded my view of the status of the Manual in relation to the standards to be achieved by any reasonably competent veterinary surgeon. I am not seeking to suggest that the Manual, viewed in the terms in which it described itself on the back cover, was otherwise than thoroughly admirable. Raising awareness and seeking to improve professional standards are worthwhile aims in themselves. However, the best practice in any profession will always be some distance in advance of the standards of the ordinarily competent practitioner.

In the light of the evidence led during the trial I was impressed by the thoroughness and competence of Miss Randall in conducting the Examination and in reporting fully and comprehensibly to Dr. Blass. The suggestions made that Miss Randall had fallen below the standards of ordinarily competent veterinary surgeons in relation to the completion of the Certificate, or the confirmation in writing of information and advice given orally, or the making of written records in my judgment lacked substance. I am confident that Miss Randall is a thoroughly competent veterinary surgeon, albeit perhaps wiser and less trusting as a result of her unhappy experience in this action.