Judges refuse pig owner’s appeal against decision to allow council to take animals into care before sale

Judges in the Inner House of the Court of Sessionrefused an appeal by Kevin Martin, who claimed that the sheriff erred in the exercise of his discretion by considering the case in the appellant’s absence and granting the orders sought by East Lothian Council.

Lady Paton (pictured), Lord Drummond Young and Sheriff Principal Pyle heard that the animals were kept in a field near Haddington, but the pigs frequently broke out of their enclosure and escaped into neighbouring grounds where they were “uncontrolled and unprotected”.

The appellant had difficulty in complying with a bail condition imposed upon him to “keep the pigs and other animals under reasonable control and make diligent attempts to keep the pigs within the field known as Willow Rise” and ultimately the pigs and hens were left “abandoned and unfed” in February 2014.

The respondents then intervened, exercising their powers under the Animal Health and Welfare (Scotland) Act 2006. Their reasons for doing so related to the likelihood of the pigs suffering following being abandoned; the pigs escaping due to inadequate fencing; the land being unsuitable to accommodate them; and some concerns about public safety when the pigs escaped.

Accordingly, the respondents took the pigs and hens into their care in terms of section 32 of the 2006 Act and made a summary application to Haddington Sheriff Court seeking an order under section 34 entitling them to sell the pigs and hens, and (after deduction of expenses) to remit any balance to the appellant.

Mr Martin opposed the application, and lodged defences contending that the livestock should be returned to him, but a vet instructed by the council to examine and report on the pigs’ accommodation condemned the area as “unsuitable” for the housing of pigs.

The case came before the sheriff on several occasions and the day before what was the fifth proof diet Mr Martin telephoned the sheriff court to say that he would be unable to and his GP e-mailed a letter to the court – which was not given on soul and conscience – confirming that the appellant was suffering from “a medical condition that prevents him from sitting or standing for any period of time.”

At 9am on the morning of the hearing on Thursday 15 May 2014, Mr Martin sent a personal e-mail to the court, apologising for his non-attendance and explaining that he had been suffering from “a recurring medical illness”.

The sheriff took into account the appellant’s e-mail, the GP’s letter, the history of the case, and the submissions made to him and he decided not to appoint a peremptory diet but to proceed with the application in the absence of the appellant.

He then considered the merits of the council’s application and ultimately granted a disposal order under section 34, appointing the respondents: “(a) to sell the pigs, after taking advice from Lawrie & Symington as to the best method of sale in order to achieve their value on the open market; (b) to sell the hens at the Poultry Market in Lanark; and (c) to pay the resultant sale proceeds to the defender under deduction of any reasonable sums due to the pursuers under section 32(11) and section 34(3) of the Act.”

After an appeal to the Sheriff Principal was refused, the appellant then appealed to the Court of Session, contending that the sheriff “erred in law in unreasonably exercising his discretion by granting various orders under section 34” of the 2006 Act.

In particular, he submitted that the medical letter was sufficient and the sheriff ought to have discharged the proof on 15 May 2014 and assigned a fresh date.

He argued that the sheriff gave no weight to the issue of valuation and letter from Crombies butchers, Edinburgh, which demonstrated that 2,500 hot dogs could be obtained from each pig (i.e. 2,500 @ £2.50 each), resulting in a valuation of the herd of pigs much in excess of £1,050 valuation given by Lawrie & Symington.

It was submitted that the sheriff’s decision should be overturned, and the matter remitted back to the sheriff court for an evidential hearing on the merits of the application.

The respondents submitted that an appellate court may not interfere with the decision of the inferior court unless it is satisfied either that the judge exercised his discretion upon a wrong principle, or that, his decision being so plainly wrong, the judge must have exercised his discretion wrongly.

The council argued that the appeal should be refused as the sheriff had not erred in the exercise of his discretion to consider the case in the appellant’s absence; or to grant the order sought by the respondents under section 34 of the 2006 Act.

The judges considered that in the circumstances of the case the sheriff was entitled to decide not to appoint a peremptory diet, but to proceed with the application in the absence of the appellant, and in any event they were not persuaded that there was any merit in the appeal.

The full judgment is available here.