Glyn v McGarel-Groves [2006] EWCA Civ 998

Case No A2/2005/1930

[2006] EWCA Civ 998

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION

HQ 03 X01706

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

14/07/2006

Before

LORD JUSTICE WARD

LORD JUSTICE RIX

LORD JUSTICE GAGE

Between

Philip John GlynClaimant

Jane McGarel-GrovesDefendant

Erik GrandiereDefendant

Clinique Veterinaire Equine De ChantillyDefendant

Philip John Glyn Claimant/Appellant First Part 20 Defendant (First Claim) and Jane McGarel-Groves Defendant/ Respondent Part 20 Claimant (First Claim) and Erik Grandiere Second Part 20 Defendant (First Claim) Part 20 Claimant (Second Claim) and Clinique Veterinaire Equine De Chantilly Part 20 Defendant (Second Claim)

(Transcript of the Handed Down Judgment of

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Andrew Edis QC (instructed by Hill Dickinson) for Philip John Glyn

Patrick Lawrence QC and Sian Mirchandani (instructed by Berrymans Lace Mawer) for Jane McGarel-Groves

Judgment

Date 2006-07-14

Introduction

[1]The issue at trial was whether one or both or neither of the two Part 20 defendants negligently caused the death of a top-class international dressage mare, Annastasia (Anna). Anna was owned by the defendant, Mrs Jane McGarel-Groves. Anna died of laminitis on 29 July 2001. Mr Philip Glyn, the claimant and First Part 20 defendant, a veterinary surgeon, issued proceedings for undisputed fees of £4778.91 in respect of treatment by him of Anna before her death. The Second Part 20 defendant was Msr Erik Grandiere, a French veterinary surgeon. Msr Grandiere and the Clinique Veterinaire Equine de Chantilly (also a Part 20 defendant) at trial were represented by counsel and solicitors but have taken no part in this appeal. Hereafter, I shall refer to the parties by their proper names.

[2]Mrs McGarel-Groves alleged that Anna’s death was caused by the negligent treatment of both Mr Glyn and Msr Grandiere. In the case of Mr Glyn the claim was for breach of a contractual duty of care. Each of these two veterinary surgeons denied negligence. The judge found that each was in breach of a duty of care owed to Mrs McGarel-Groves. As between Mr Glyn and Msr Grandiere the judge apportioned liability 85% to 15% in favour of Mr Glyn. Mr Glyn appeals against the finding that he was in breach of his duty of care and this is the sole issue for this court to decide.

[3]There is now no dispute that Anna died as a result of injections of cortico-steroids into her hocks and back administered by Msr Grandiere on 18 May 2001. As a direct result of these injections Anna contracted laminitis and died.

The judge described the cause of her death in the following terms (para 5):

“Laminae are leaf-like structures connecting the pedal bone of a horse to its hoof. A horse has laminitis when the connective tissue (the laminae) fails or begins to fail. Failure of the laminae leads to the weight of the horse driving the pedal bone down into the hoof, shearing and crushing arteries and veins and damaging the corium (the point from which the hoof grows) and the sole (the sensitive under-surface of the hoof). Laminitis can cause a horse excruciating pain. Prognosis is uncertain. In many cases the condition can be fatal. As Mr Lawrence observed, the invoices that record Anna’s treatment between 29th May 2001 (when the disease was diagnosed) and her death on 29th July 2001 amply justify Mr Glyn’s description of the laminitis afflicting Anna as “this savage illness”

Background

[4]The facts found by the judge which are not in dispute are as follows. Mrs McGarel-Groves bought Anna as a four year old in June 1991. Anna was a very well bred mare and was bought for the purpose of becoming a competitive dressage horse. In due course Anna showed great promise and outgrew Mrs McGarel-Groves’ riding skills. In 1995 Mrs McGarel-Groves decided to place Anna with Msr Michel Assouline, a very experienced French rider and competitor based in Sussex. There Anna progressed to the stage where Msr Assouline believed she had qualified for selection to represent France in the Sydney Olympics in 2000.

[5]As was common practice in Msr Assouline’s yard, it was agreed between him and Mrs McGarel-Groves that Anna should have a regular vet who would attend her whenever necessary. At Msr Assouline’s suggestion Mr Glyn became Anna’s vet. Mrs McGarel-Groves described Mr Glyn as being her retained vet for treating Anna. Mr Glyn was paid for his services on the basis of work carried out by him as and when requested but was not paid any general retainer.

[6]Over the years up to 2001 Mr Glyn treated Anna on a number of occasions. At trial and before this court there was a bundle of invoices detailing the treatment administered by Mr Glyn. The details of his treatment are, save for two occasions, not material. The two occasions, which assumed some significance in the trial, occurred in 1997 and 1999. On each of these occasions Anna was treated by a veterinary surgeon other than Mr Glyn. Each concerned apparent orthopaedic problems. On the first occasion Anna was taken by Mr Glyn to an equine specialist in England, Dr Sue Dyson. Dr Dyson practised at the Animal Health Trust. On that occasion Anna was treated by Dr Dyson and her invoice was forwarded to Mrs McGarel-Groves by Mr Glyn. Mr Glyn did not make any charge for his services on this occasion.

[7]In 1999 Anna, who was at the time doing very well in international dressage competitions, was thought by the French to be showing signs of being uneven on her left hind leg. This was communicated to Msr Assouline and in turn by him to Mrs McGarel-Groves. Msr Assouline told Mrs McGarel-Groves that the French vet and team leader had suggested that Anna should have injections to lubricate the joint in her left hock. Mr Glyn was asked by Msr Assouline, on Mrs McGarel-Groves’ behalf, to attend when the French vet, Msr LePage, examined and treated Anna. Before doing so Mr Glyn took radiographs of each hock and each hind fetlock which he sent to Msr LePage. What happened next is described by

the judge at para 27 of his judgment:

“Mr Glyn forwarded the x-rays to Msr. Lepage under cover of a letter dated 29th March 1999. According to Mr Glyn, Msr. Lepage formed the view that Anna’s left hock showed evidence of “osteochondrosis dissecans in the talus of the left hock in the depth of the trochlea tali medial to the lateral trochlear ridge” (see paragraph 13 of Mr Glyn’s witness statement). On 14th April 1999, shortly after receiving the x-rays from Mr Glyn, Msr. Lepage went to Msr. Assouline’s yard in order to examine and treat Anna. Mr Glyn was also in attendance. Although he did not know precisely which preparations were used by Msr. Lepage or the dosage, Mr Glyn was aware that Msr. Lepage had injected Anna’s hocks and her back with cortico-steroids all on the same occasion (see paragraph 13 of Mr Glyn’s witness statement and cf. Dr Dyson’s approach and her reasons for not doing so: see paragraph 18 above and paragraph 31 below). It is worthy of note that, broadly speaking and putting the amount of each dose to one side, this was the same approach as that adopted two years later, when Msr. Grandiere treated Anna in May 2001.”

[8]On this occasion the treatment was successful.

[9]It is common ground that treatment of horses by the use of cortico-steroids is as the judge put it “an efficacious form of medication in the treatment of certain equine orthopaedic problems, particularly for reducing inflammation and improving joint mobility”. But this treatment does carry a small risk of the horse contracting laminitis. This risk was recognised from at least 1977 and well known in the veterinary profession in 2001. It was also thought that the higher the dosage the greater the risk.

[10]In 2001 after a very successful year in 2000, Anna’s performance dipped. The French view was that Anna’s problem was not hormonal but was orthopaedic. Accordingly it was arranged that a French vet, Msr Grandiere, would travel to Msr Assouline’s yard in Sussex and treat Anna in the same way as she had been treated by Msr LePage in 1999. Mrs McGarel-Groves was told of this proposed course of action in general terms and she insisted that Mr Glyn was present. She did not speak to Mr Glyn herself but Msr Assouline did. He told Mr Glyn the date and time when Msr Grandiere would be present to carry out his examination and treatment. The terms upon which Mr Glyn was to attend and the instructions given to him about what his role was to be lie at the centre of this appeal.

[11]Mrs McGarel-Groves’ case was that Mr Glyn as her vet was there to discuss the treatment proposed by Msr Grandiere and to protect Anna from any improper treatment. Mr Glyn’s case was that he was asked to attend out of courtesy, to be available to give a history of previous treatment, and to be told what if any ongoing treatment was necessary. He categorically denied that he had any responsibility for discussing with Msr Grandiere the treatment which Msr Grandiere was to carry out.

[12]There was no dispute that Msr Grandiere injected Anna with cortico-steroids in both hocks and her back. At the outset of the trial there was a dispute about the nature and amount of the drugs administered. However, in the course of the trial the judge was invited to make preliminary findings of fact as to precisely what injections were administered by Msr Grandiere. He found (paragraph 63):

“After hearing full submissions on the preliminary issue, I gave my answers on 13th May 2005 to the effect that I was satisfied that, on 18th May 2001, Msr. Grandiere had injected doses of not less than 80mg of Kenacort 80 into each of Anna’s hocks and a total dose of 20ml of Voren suspension into her back: see the terms of the Order of 13th May 2001 giving my answers to the questions posed.”

[13]On these findings it was common ground that the dose of drugs administered by Msr. Grandiere was an overdose of cortico-steroids which caused the laminitis from which Anna died. A finding of breach of duty against Msr. Grandiere inevitably followed. The only other issue was whether Mr Glyn was also in breach of a duty of care.

[14]The judge based his findings against Mr Glyn on a breach of duty which he held arose out of Mr Glyn’s own evidence. At paragraph 47 of the judgment he set out passages of Mr Glyn’s evidence which in his opinion were significant in respect of his findings:

“I am satisfied that it is apparent from Mr Glyn’s own evidence that he accepted that his duty to observe Msr. Grandiere’s treatment also involved or gave rise to a further duty to intervene to protect Anna if the proposed or actual treatment was in any way inappropriate. It suffices to quote the following passages from his evidence: (i) “He was not doing something so extreme or contrary to the welfare of the horse that it required intervention”: see paragraph 22 of Mr Glyn’s witness statement. (ii) “I believe it would have been inappropriate for me to have intervened because I would have been questioning the competence of the French national Team’s Veterinary Surgeon. Unless there was a welfare issue or something totally against accepted methods of Veterinary Practice it was not for me to intervene in the treatment”: see paragraph 25 of his witness statement. (iii) “If Msr. Grandiere had behaved in an inappropriate way that I could see immediately was contrary to Anna’s welfare, I would have “leapt in”- but not if I observed familiar procedures by a competent colleague”: my note of part of Mr McPherson’s cross examination of Mr Glyn. (iv) “I would not have used 80mg of Triamcinolone myself. If Msr. Grandiere had told me that he was going to inject 80mg of Triamcinolone , I would have commented that it was a high dose and asked for his reasons…he would have needed to convince me. I think that with such an exceptionally high dose, you would have to discuss it with the owner’s agent (Msr Assouline) and point out the risk of laminitis as a potential problem. If I had known that Msr. Grandiere was going to administer 80mg of Triamcinolone, I would have spoken to Msr. Assouline about it. …” “If Msr. Grandiere was proposing to do something even remotely inappropriate in his treatment of Anna I would have taken action”: both passages taken from my note of Mr Lawrence’s cross examination of Mr Glyn.”

[15]At paragraph 48

the judge continued:

“Before moving on to deal with the treatment that Msr. Grandiere actually administered to Anna on 18 May, it is important to note that Mr Glyn had, in effect, rendered himself unable to judge whether the treatment in question was “contrary to Anna’s welfare” or “totally contrary to accepted methods” or“inappropriate”

. Although Msr. Grandiere told Mr Glyn that he proposed to inject Anna with cortico-steroids and Mr Glyn watched him whilst he prepared two different cortico-steroids for use, Msr. Grandiere did not identify the cortico-steroids nor did he tell Mr Glyn what dosage of each he proposed using. Despite knowing that a “high” dose of cortico-steroids involved a sufficient risk of laminitis to make it necessary to discuss the matter with the owner’s agent and being aware of his duty to intervene if the proposed treatement was inappropriate. Mr Glyn neither inquired as to the identity of the drugs in question nor as to the proposed dosages. The reference in his invoice to the injection of methyl Prednisolone was based on an incorrect assumption as to the identity of the drug that he observed being injected into Anna’s hocks (it was actually triamcinolone: see below), although he correctly indentified the cortico-steroid that was injected into her back (dexamethasone).”

[16]The ensuing paragraphs of the judgment deal with Msr Grandiere’s responsibility which, as I have indicated, on the findings of fact made by the judge, inevitably led to a finding of negligence against him. Having found Msr Grandiere negligent the judge went on to express his conclusions in relation to Mr Glyn. At paragraphs 66 and 67 he said:

“66. In my view, Mr Glyn was also in breach of duty to Mrs McGarel-Groves and is also liable to her in the agreed sum of £350,000 (which, in his case, takes into account his outstanding fees). In his case, as Mr Lawrence observed in paragraph 8 of his written closing submissions, the primary case against him rests on an analysis of the scope of Mr Glyn’s retainer. In my view, it is sufficient for the purposes of this case to approach the matter on the basis of the duties that Mr Glyn expressly and/or impliedly accepted that he owed to Mrs McGarel-Groves, i.e. duties to observe the treatment and to intervene if it was remotely inappropriate or contrary to Anna’s welfare (see paragraphs 46 and 47 above), although I acknowledge the force of Mr Lawrence’s submissions that his retainer was much more comprehensive than Mr Glyn was prepared to admit (see paragraphs 10 to 20 of Mr Lawrence’s closing submissions). 67. As I pointed out in paragraph 48 above, Mr Glyn effectively rendered himself unable to judge whether the proposed treatment was inappropriate by his failure to make any inquiry as to the types of cortico-steroids that were to be used or as to the dosages that were to be administered. As it seems to me, that was an extraordinary failure, given that Mr Glyn knew perfectly well that two different cortico-steroids were to be used, that Anna’s back and each of her hocks were to be injected at the same time and that a “high” dose of cortico-steroids would involve a sufficient risk of laminitis to make it necessary to warn (in effect) Mrs McGarel-Groves. In the course of his evidence, Mr Glyn accepted that if he had known that Msr. Grandiere was proposing to inject 80mg of triamcinolone into each of Anna’s hocks, he would have intervened. If he had done so, the proposed treatment would not have gone ahead and Anna would not have died. Thus, for example, according to my note of Mr Lawrence’s cross examination, Mr Glyn said this: “I would not have used 80mg of triamcinolone myself. If Msr. Grandiere had told me that he was going to inject 80mh of triamcinolone I would have commented that this was a high dose and asked for his reasons. … … I think that with such an exceptionally high dose, you would have to discuss it with the owner’s agent … and point out the risk of laminitis as a potential problem. If I had known that Msr. Grandiere was going to administer 80mg of triamcinolone, I would have spoken to Msr. Assouline about it. … If Msr. Grandiere was proposing to do something even remotely inappropriate in his treatment of Anna I would have taken action. ”

[17]And finally at paragraph 70 he said:

“In effect, as Mr McPherson observed, Mr Glyn’s acknowledged duties of observation and, if necessary, intervention provided the essentials that Mrs McGarel-Groves required for herself and for Anna, namely a line of defence against an apparently competent vet acting incompetently. By failing to ask the relevant questions (which Msr. Grandiere would have willingly answered) Mr Glyn failed to provide that line of defence. If he had asked the relevant questions, he would have realised that the treatment was, at the very least, inappropriate and he would have intervened, as he himself accepted in evidence.”

[18]It will be apparent from the above that Mr Glyn accepted that he knew from his observations that Msr Grandiere was going to inject two different cortico-steroids into both Anna’s hocks and her back. He did not know the precise nature of the drugs nor did he know the amount that was to be administered, it is also clear from the judge’s findings that, if Mr Glyn had asked the quality and amount of the drugs being administered firstly Msr Grandiere would have told him and secondly Mr Glyn would have known that such a dosage was a high dose which called for some explanation.

[19]The broad issue in this appeal can be shortly summarised. It is whether in all the circumstances Mr Glyn’s duty to Mrs McGarel-Groves was to enquire what drugs and in what quantity Msr Grandiere proposed to administer to Anna; or whether he was there to do no more than observe what was going on so that he could advise on previous history and be told of any necessary future ongoing treatment.

The grounds of appeal

[20]The main grounds of the appellant’s appeal are as follows: 1. The judge erred in finding that Mr Glyn owed a contractual duty of care which extended to providing a “line of defence against an apparently competent vet acting incompetently”. It is submitted that no such express stipulation was made by Msr Assouline on behalf of Mrs McGarel-Groves and none can be implied. 2. The Judge erred in finding that Mr Glyn owed a duty to monitor the orthopaedic treatment administered by Msr Grandiere to Anna. 3. The judge erred in imposing a duty on Mr Glyn to enquire of Msr Grandiere the nature and dosage of the cortico-steroid drugs which he intended to administer to Anna. 4. The duty and breach of it found by the judge was not justified on the evidence of Mr Glyn and was such as to impose too heavy a duty of care in circumstances commonly occurring when one vet is requested to attend the treatment of an animal by another vet.

[21]On behalf of Mrs McGarel-Groves a Respondent’s Notice has been filed. In it Mr Patrick Lawrence QC, representing Mrs McGarel-Groves, seeks to uphold the decision of the judge for the reasons explained by the judge in his judgment and also on the basis of grounds set out in the Notice. The first ground of the Respondent’s Notice was the only ground which featured to any extent in argument. This ground seeks to uphold the decision of the judge on the basis that the retainer found by the judge to have existed between Mrs McGarel-Groves and Mr Glyn was wider than that found by him.

[22]In support of each of their cases on this appeal Mr Edis QC, representing Mr Glyn, and Mr Lawrence referred the court to a number of the undisputed documents in the case and to passages in the witness statements and the evidence given by witnesses at trial. Each counsel expanded their main arguments in detailed submissions to which I shall refer, as necessary, later in this judgment.

[23]In essence it is clear that the outcome of this appeal turns on three connected issues arising out of the broad issue to which I have referred. They are first the judge’s findings of fact, if any, as to the instructions given by Msr Assouline, on behalf of Mrs McGarel-Groves, to Mr Glyn when Msr Assouline asked Mr Glyn to attend his yard on 18 May 2001. Secondly, the judge’s findings that Mr Glyn owed Mrs McGarel-Groves duties (expressly and/or impliedly) to observe the treatment and to intervene if the treatment was remotely inappropriate or contrary to Anna’s welfare (see paragraph 66 of the judgment). Thirdly, that Mr Glyn’s failure to ask relevant questions of Msr Grandiere as to the administration of the cortico-steroids which he was to administer to Anna was a breach of duty owed by him. I shall deal with each of these issues in order. Discussion The first issue

Discussion

[24]Mr Edis submitted that the judge made no proper or clear findings of fact on this issue. Mr Lawrence relied on paragraph 39 of the judgment and the following paragraph which referred to Mr Glyn’s evidence on this topic, as the judge’s findings of fact on this issue. Mr Edis submitted that paragraph 39 was no more than a recitation of passages taken by the judge from Msr Assouline’s two witness statements. Further he submitted that even if those passages represented findings of fact they were not justified on the evidence following cross-examination.

[25]In paragraph 39

the judge said:

“At some point before the 18th May, Msr. LePage contacted Msr Assouline to explain that, since he was now a “Directeur” of the French Dressage Team, he would not be attending High Meadows to examine and treat Anna himself, but would be sending instead Msr. Grandiere, the new French National Team Veterinary Surgeon. Subsequently, Msr. Assouline had a brief telephone conversation with Msr. Grandiere to discuss arrangements and to give directions. Msr. Assouline also telephoned Mr Glyn and asked him to attend, as requested by Mrs McGarel-Groves. Msr. Assouline explained that the French vet was coming to investigate Anna’s poor performance at Le Touquet and to discuss ways of improving it. It is likely that Msr. Assouline also mentioned that it was proposed to repeat the treatment given in 1999.”

[26]In my judgment paragraph 39 does represent findings of fact by the judge. I reject both of Mr Edis’ submissions on this issue. In my opinion the language used by the judge in paragraph 39 indicates that it represents findings of fact. The paragraph starts with a short recitation of matters which are not in dispute. In the last two sentences of the paragraph the judge states that Msr Assouline “explained” to Mr Glyn what the French vet was going to do. This sentence, in my opinion, has the hallmark of a finding of fact. The last sentence starts with the words “It is likely that Msr Assouline mentioned…”. Similarly in my view the language used in this sentence is consistent with the judge expressing a finding of fact.

[27]Mr Edis further submitted that even if paragraph 39 represents findings of fact by the judge those findings cannot stand following Msr Assouline’s cross-examination. Quite apart from the point made by Mr Lawrence (a substantial one as it seems to me) that there is no appeal by the appellant against this finding of fact, in my opinion this criticism is not made out. It is correct that in cross-examination Msr Assouline, understandably, commented that in view of the passage of time he could not be certain about precisely what he said to Mr Glyn. Nevertheless there are passages in his evidence which support the general purport of his witness statements. The following are short (but not full) excerpts from his evidence given in cross-examination by Mr Edis: Q. “And the phrase that he “was to be there to discuss the cause of “Anna’s below par performance” .. and then these words “and agree treatment”. Now in fact Mr Glyn was not going to be agreeing the treatment at all, was he? The treatment had already been agreed. It was what you might call a fait accompli. A. Well, you know, it is basically, at the end of the day, in the hands of the vet. It is expected for them to discuss and decide what needs to be done. But you do need to have your normal vet there to relay to, you know, past problems if there are any and also to carry on with the further treatment if there is going to be. You know, you just cannot do it, because there would be no continuity basically. And we have never used M. Grandiere before or after, it was just this one-off. Q. Sure. But certainly nobody told Mr Glyn, did they, that his role on 18th May was to supervise the work of the French vet and approve what he was doing? A. What were the exact words, you know, to be quite honest I cannot remember. I think Jane requested his presence on her behalf being the treating vet and as such, you know, that is just how it works. Equally, as it would work, you know, in medical terms with a GP, you know; you do not tell them what to do or not to do, I am afraid. Q. That is perhaps the whole thing here in this case. Expectations appear to have been held but actually nobody gave Mr Glyn any specific instructions about what he was meant to be doing that day, did they, except to turn up? A. Well, I do not know about that, you know? You still feel that you want your vet there to …. Q.Yes. A. …guide you and represent you if there are questions to be asked. No, I do not agree with that. You are not going to have a vet to be there as a living statue basically, you know? You might have to ask questions….”

[28]These passages coupled with Msr Assouline’s witness statements in my judgment amply justify the judge’s findings in paragraph 39.

[29]At paragraph 41 the judge made it clear that he accepted Mrs McGarel-Groves’ evidence that she wanted Mr Glyn to be present on 18 May 2001 to “…protect her own interests and ensure that Anna was not endangered in any way.”

[30]In her witness statement at paragraph 27 Mrs McGarel-Groves had said:

“I recall that I especially asked Mr Glyn to attend this appointment as my vet to check…that Anna was treated properly and so that I could be certain she did not come to any harm.”

This passage related to treatment of Anna by Msr LePage in 1999. Mr Edis submitted that in evidence Mrs McGarel-Groves withdrew that sentence and that the judge was in error in relying on that part of her witness statement. Mr Lawrence explained that she withdrew it because she accepted that she was in error to state that she spoke to Mr Glyn. Whatever maybe the true position in relation to that part of Mrs McGarel-Groves’ evidence which related to the 1999 incident I see no reason to suppose that the judge was in any way incorrect when referring to the 2001 incident he said in paragraph 41 that he accepted Mrs McGarel-Groves’ evidence in the form to which I have just referred. It is, of course, correct that it was Msr Assouline and not Mrs Mc Garel-Groves who instructed Mr Glyn to attend on 18 May 2001. But, in my view, Msr Assouline’s evidence is consistent with his knowledge of Mrs McGarel-Groves’ expressed reasons for having Mr Glyn present on that date.

[31]At paragraph 40 the judge recorded Mr Glyn’s denial that he attended the yard in any supervisory role. However, the tenor of paragraph 41 and those which follow demonstrate that the judge viewed Mr Glyn’s evidence on this issue with a good deal of scepticism. Mr Lawrence characterised this part of the judgment as “effective findings of fact”. Mr Edis submitted that scepticism is not the same as express findings of fact.

[32]I accept Mr Edis’ submission that expressing a sceptical view of evidence is not the same as making a finding of fact. But it is equally clear from those passages that the judge did not go as far as to say that he accepted Mr Glyn’s version of his instructions. In the circumstances, I regard the judge’s findings of fact expressed at paragraph 39 as important and significant.

The second issue

[33]The judge set out his findings as to Mr Glyn’s duties in paragraph 47 of his judgment to which I have referred. Mr Edis reminded the court of passages in Oliver J’s judgment in Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp1979 CH 384. It is sufficient to say that it is common ground between the parties that a court cannot impose on professional men duties “…which go beyond the scope of what they are requested and undertake to do”. Mr Edis submitted that in this case the judge fell into the error of imposing a duty which was beyond the scope of what Mr Glyn had been requested and undertaken to do. It is this submission which lies at the heart of this appeal.

[34]Mr Edis accepted that Mr Glyn had a duty to observe and intervene if the treatment was patently inappropriate. This was in addition to a duty to provide information to Msr Grandiere if required to do so and to participate to the extent that he would be able to carry out any ongoing treatment. However, he submitted that Mr Glyn had no duty to monitor or question treatment carried out by Msr Grandiere, a competent vet, and one apparently carrying out a simple operation competently, namely administering cortico-steroid injections. He submitted that the duty to observe did not include a duty to monitor. Further he submitted that to impose a duty on Mr Glyn in these circumstances would have serious and worrying implications for vets far beyond the confines of this case.

[35]For my part, I cannot accept Mr Edis’ submissions on this issue. In my judgment, on the facts and circumstances of this case, the judge was quite entitled to find that Mr Glyn’s duty included a duty to understand what treatment Msr Grandiere was administering to Anna in the form of cortico-steroid injections. The following factors in my opinion are significant for the purposes of this finding.

[36]First, on any view, Mr Glyn had been asked to attend as Mrs McGarel- Groves’s vet. The treatment to be administered was being carried out by a vet employed by the French international dressage team. In my opinion its interests did not necessarily coincide with those of Mrs McGarel-Groves (see for example Msr Grandiere’s evidence of the lack of professional trust between French and English vets in the treatment of international equine competitors).

[37]Secondly, in my judgment, there is a great deal of force in Mr Lawrence’s submission that Mr Glyn was instructed to attend on the 18 May 2001 as Mrs McGarel-Groves’ vet not just as a bystander. It is a necessary implication of that instruction that he was to bring to bear his expert knowledge as a vet on what was occurring. He was the vet who had been treating Anna on a regular basis in the past including on occasions for orthopaedic conditions. He was the vet whom it was obvious would be treating Anna in the future. In the circumstances, although he might in the end not have been the one who would make the final decision on precisely what treatment was carried out, in my judgment, the judge correctly found that he had a duty to make himself aware of the detail of the treatment which was to be carried out. In the words of Msr Assouline, he was asked to be present as Mrs McGarel-Groves’ vet not just to be a “statue”.

[38]Thirdly, in my judgment, it is relevant to note Mr Glyn’s perception of his duties when asked to attend the examination and treatment of Anna by Msr LePage in 1999. The evidence shows that Mr Glyn, on that occasion, expected to be involved in the process of deciding what treatment was to be administered to Anna. Mr Edis submitted that the fact that Mr Glyn was (as happened on that occasion) rebuffed by Msr LePage supported Mr Glyn’s case that it demonstrated that he was to play no part in the orthopaedic treatment of Anna in May 2001. He submitted that each occasion represented a fait accompli by the French vets that permitted no participation by Mr Glyn in this treatment. Mr Edis submitted that Mr Glyn’s role was to be an entirely passive one.

[39]I do not accept this submission. The fact that Mr Glyn was rebuffed by Msr LePage in 1999, in my opinion, is no reason for him to evade in 2001 the duty which he perceived he had in 1999. This is particularly so when he was self-evidently dealing with a much younger and less experienced vet than himself about whom he knew nothing.

[40]Fourthly, like the judge, I regard Mr Glyn’s invoice dated 18 May 2001, dictated immediately after he had left the yard as his record of what had happened, as more consistent with a discussion between him and Msr Grandiere in respect of the orthopaedic treatment. The invoice, which is set out by

the judge in full, starts with the following sentence:

“Attend with French Team Veterinary Surgeon Erik Grandiere. Discuss previous examination and treatment. Possible need for further joint or back injection. Left tarso-metatarsal joint shows substantial joint effusion with the leak of joint fluid under pressure with needle into joint. This could be responsible for slight stiffness on left rein.”

[41]In evidence, Mr Glyn sought to explain those sentences as a reference to treatment of Anna’s oestrus cycle for which he would have a responsibility for ongoing treatment. As the judge said on a reading of the invoice “…one is left with a strong impression that Mr Glyn was not simply an observer of the injections administered to Anna, but that he played a part in the actual decision-making relating to that form of treatment on 18 May…”.

[42]In the same paragraph containing the passages of the judgment to which I have just referred the judge stated that the general impression given by the invoice was greatly strengthened by the account given by Msr Grandiere in his witness statements. Mr Edis criticised the judge for seeking support from Msr Grandiere’s statements. He submitted that the statements did not wholly support the judge’s observation and, in any event, must be viewed against the judge’s wholesale rejection of Msr Grandiere’s evidence in relation to the dosages of cortico-steroids administered by him. For my part, I cannot see that the fact that the judge rejected Msr Grandiere’s evidence on one issue, albeit a most important one, prevented him from accepting Msr Grandiere’s evidence on another issue.

[43]Further, I should add that the fact that Msr Assouline permitted the orthopaedic examination of Anna by Msr Grandiere to take place before Mr Glyn arrived does not make the judge’s conclusion on this issue less likely.

[44]As Mr Lawrence submitted, there are substantial grounds for inferring from the wording of the invoice that contrary to Mr Glyn’s assertion he understood his duty to include discussing with Msr Grandiere the orthopaedic treatment Msr Grandiere intended to administer to Anna. As did the judge, I can see considerable force in these submissions. For my part I am prepared to go further. Although, it may not be strictly necessary to do so, I would hold that the judge’s findings, described by Mr Lawrence as effective findings of fact, can properly be regarded as findings of fact. I would be prepared to hold that, on the evidence, it was established on a balance of probabilities that Mr Glyn’s duty included a duty to discuss with Msr Grandiere the treatment which he intended to administer to Anna by way of orthopaedic treatment.

[45]It follows from the above that in my judgment, the judge on his findings of fact was entitled to hold that the duty of care in respect of Mr Glyn’s attendance on 18 May 2001 included not just a duty to observe the orthopaedic treatment but also a duty to satisfy himself that he knew precisely what treatment was to be carried out by Msr Grandiere so as to ensure that nothing remotely inappropriate occurred. I would also hold that he owed a duty of care to discuss the treatment with Msr Grandiere.

The third issue

[46]The third issue concerns the judge’s findings of breach of duty. This issue involves a considerable overlap with the second issue. The judge expressed his final conclusions in paragraph 70 to which I have referred.

[47]Mr Edis submitted that the breach of duty found by the judge did not follow from his findings in respect of the duty owed by Mr Glyn to Mrs McGarel-Groves. To my mind this submission can only succeed if the very restricted duty of care for which Mr Edis contended applies. If Mr Glyn’s role in the orthopaedic treatment of Anna was solely to stand by and observe without in any way enquiring what treatment Msr Grandiere was administering, I can see the force in this submission. However, I have already concluded that the judge was correct to hold that Mr Glyn’s duty was not so restricted. In the circumstances on the view which I have taken of the duty owed by Mr Glyn to Mrs McGarel-Groves, as described by the judge, the judge’s conclusions at paragraph 70 cannot in my opinion be impugned. It seems to me that the judge was quite right to find that Mr Glyn should have enquired what drugs Msr Grandiere was proposing to inject and the dosage he was going to use. If he had done so he would have discovered that the dose was an unreasonably high one and, as he accepted in evidence, he would have had to discuss this with Msr Assouline and point out the risk of laminitis. In short he would have known that the treatment was to use his words “remotely inappropriate”.

Conclusion

[48]It follows that, for my part, for the reasons expressed above, I would dismiss this appeal. I do so on the basis of the contractual duty and breaches of it found by the judge. However, as I have already said, if it were necessary to do so, I would also hold that Mrs McGarel-Groves’ first ground of her Respondent’s Notice succeeds as a further reason for dismissing the appeal.

[49]In reaching these conclusions I am quite clear that this judgment goes no further than the facts of this case and is of no wider or general significance.

[50]I have read with gratitude the judgments in draft of Ward and Gage LJJ, which set out so well the facts and issues of this appeal, and so cogently express their different perceptions of them. I had intended to express my simple agreement with the judgment of Gage LJ, but in the light of the division of opinion which has emerged, I consider that I should set out in my own words my reasons for agreeing with Gage LJ, as I do, and for respectfully disagreeing with the powerful judgment of Ward LJ.

Was Mr Glyn in breach of the duty found by the judge?

[51]In the circumstances and in the light of the material set out in those two judgments, I believe that I can start straightway at the end and observe that it is to my mind critical to the understanding of this case and of Mr Justice Forbes’ conclusions below that, on Mr Glyn’s own admission, his retainer and thus his duty was more than merely a duty to observe. It had been Mr Glyn’s primary position and thus the submission made on his behalf that he owed no duty other than a mere duty to observe, but in cross-examination, required to justify that position, he was driven to accept, inevitably in my judgment but that is by the way, that his duty went further than that. The judge has set out the most relevant portions of that cross-examination at para 47 of his judgment (recorded in para 14 of Gage LJ’s judgment above). Ultimately, the judge found, on the basis of that evidence, that Mr Glyn’s duty, in addition to his duty to observe, comprised a further duty to intervene to protect Anna if the proposed or actual treatment was in any way inappropriate. The judge said (at para 47):

“I am satisfied that it is apparent from Mr Glyn’s own evidence that he accepted that his duty to observe Msr. Grandiere’s treatment also involved or gave rise to a further duty to intervene to protect Anna if the proposed or actual treatment was in any way inappropriate.”

The judge repeated the same point when he said (at para 66):

“In my view, it is sufficient for the purposes of this case to approach the matter on the basis of the duties that Mr Glyn expressly and/or impliedly accepted that he owed to Mrs McGarel-Groves, i.e. duties to observe the treatment and to intervene if it was remotely inappropriate or contrary to Anna’s welfare (see paragraphs 46 and 47 above), although I acknowledge the force of Mr Lawrence’s submissions that his retainer was much more comprehensive than Mr Glyn was prepared to admit…”

[53]That admission by Mr Glyn is not in itself the subject of any appeal. Gage LJ has set out the main grounds of appeal at para 20 above. In effect, the judge’s primary findings of fact are accepted, but what is said on Mr Glyn’s behalf is that the judge wrongly turned the admitted duty or duties into a duty to supervise or to monitor or to enquire. It is said that a duty to observe and intervene if necessary (as I gloss the duty found) is not broken unless the vet under observation acts in a patently, or even grotesquely, incompetent or inappropriate manner. The paradigm example given is one that Mr Glyn himself gave in the course of his evidence, namely where the vet under observation takes an axe to the animal under his care. It is submitted that the judge demonstrated his misapplication of the admitted duty by accepting the submission of Msr Grandiere’s counsel at trial, Mr McPherson, that it provided the line of defence sought by Mrs McGarel-Groves “against an apparently competent vet acting incompetently” (at paras 69/70 of the judgment below).

[54]Ward LJ has himself accepted the judge’s finding as to Mr Glyn’s duty and on that basis posed as “The crucial question: was Mr Glyn in breach of his duty?” (his heading at just before para [97] below). He has answered that question differently from the judge by concluding that the judge had wrongly turned Mr Glyn’s duty to observe into a duty to make enquiries or even to supervise. Thus Ward LJ says “In other words he was holding that a failure to make enquiries was a breach of a duty to observe” (at para [98] below); that “The judge rejected the submission on behalf of Mr Glyn that he was not obliged to enquire” (at para [99] below); that “A duty to observe involves no more than the duty to take note of what is being done. It is less onerous than a duty to monitor or a duty to supervise…He was not there to oversee…He was a mere observer” (at para [100] below); that Mr Glyn “was not being asked to ensure that the apparently competent French vet was in fact acting competently. That amounts to supervision” (at para [101] below); and that “Since a failure to enquire cannot constitute a breach of duty to observe, I would allow this appeal” (at para [102] below). The judge had made two errors, “first to elevate the duty beyond that which he has found and secondly to find that elevated duty without an evidential basis for it” (at para [101] below).

[55]In my judgment, however, the case does not proceed on the basis that Mr Glyn was merely under a duty to observe. He was not a mere observer. His duty was not wholly encompassed by a duty to take note of what was being done. He owed a heightened or further duty, to intervene where necessary (I gloss the admission and the finding). In typical adversarial fashion, the claimant had contended for a duty to supervise, the defendant had contended for a mere duty to observe, but the judge, while acknowledging the force of the claimant’s more comprehensive case, was content to proceed on a middle path, founding himself on the defendant’s own evidence, and to find a duty to observe and to intervene where necessary, ie “if [the treatment] was remotely inappropriate or contrary to Anna’s welfare”.

[56]It therefore became necessary for the judge to find whether that duty had been broken. That was peculiarly a question for the judge. He had rejected the defendant’s extreme case. He had not found it necessary to come to a conclusion about the claimant’s wider case. He determined an intermediate duty. He had heard all the evidence of the trial. He was in the best possible position to judge whether the heightened duty which Mr Glyn had been prevailed upon to admit had been broken. I do not think that this court should be ready to overrule the judge on such a question of fact and assessment without it being clear that he had erred. We are not here concerned with what is comprised in a duty to observe on the one hand or a duty to supervise, monitor, or oversee, on the other hand. There is no bright-line question of principle here. We are concerned with a more special and intricate question. I agree with Gage LJ that the judge proceeded no further than the facts of this case allowed.

[57]I would, however, go further and say that I positively agree with the judge’s finding of breach of the intermediate duty which Mr Glyn had accepted. Mr Glyn, as he was forced to concede, was not a mere camera or note taker. He owed a duty to intervene if necessary. If he owed such a duty, then it was necessary for him to have a basic understanding of what treatment was being administered to Anna. Ultimately, as it seems to me, it is not a question of whether Msr Grandiere was apparently competent or patently negligent. (The far fetched axe analogy does not engage me.) Mr Glyn needed to know, if his intermediate duty was capable of having any real content at all, what drugs Msr Grandiere was administering to Anna. Those drugs were prepared under his eyes. He thought he knew what was in the syringes (see the terms of his invoice), but he did not, other than that the drugs were different types of cortico-steroids. He certainly did not know the quantities involved. If he had, he accepts that he would have questioned the treatment, and the consequence would have been that the drugs would not have been administered. The issue which would then have arisen would not have been a delicately poised issue. The quantities injected, once known, were plainly dangerous (“exceptionally high” said Mr Glyn, see para 47(iv) of the judgment below). We are not here concerned with questions of technique. Nor was Mr Glyn a generalist in the face of a specialist, or a junior in the face of a senior practitioner. The failure of Mr Glyn to put himself in a position where he could fulfil his duty to observe and intervene if necessary can be epitomised in Mr Glyn’s remarks from the end of para 20 of his own witness statement (quoted by

the judge at para 40 of his judgment):

“I do not know what drugs he administered because the labels were in French but it is my belief from the volume and appearance that he injected Methyl Prednisolone intra-articularly into both Tarso-Metatarsal joints and he made several injections of Dexamethasone around the dorsal spinous processes in the saddle area of the back. I do not know how many injections he administered nor the volume of each injection but I can say they were injections in multiple sites in the back”

(emphasis added).

[58]With genuine respect for the alternative view espoused by Ward LJ, in my judgment the reasons set out in the judgment of Gage LJ, with which I agree, as well as the reasons contained herein require the dismissal of this appeal.

A wider duty?

[59]That makes it unnecessary to decide this appeal on the basis of the respondent’s notice, pursuant to which Mr Patrick Lawrence QC on behalf of Mrs McGarel-Groves submits that the judge ought to have found, and this court can find, that the duty owed by Mr Glyn was of that more comprehensive nature urged at trial.

[60]Briefly, however, I would state my agreement with Gage LJ that that duty, the force of the case for which the judge certainly did not spurn but on the contrary acknowledged, can be found to be well supported on the findings which the judge himself made.

[61]Thus the judge made the following findings: “37. Msr Assouline telephoned Mrs McGarel-Groves and told her about what had occurred and what was proposed. He told her that the proposed treatment was to be a repeat of the treatment given by Msr Lepage in 1999. Mrs McGarel-Groves agreed to the proposed treatment, again on the basis that Mr Glyn would be in attendance to protect her interests and to ensure that Anna was treated properly and not endangered… 38…As Mrs McGarel-Groves stated in paragraph 32 of her witness statement…“I put my faith and trust, once again, in Mr Glyn to represent my interests.” 39…Subsequently, Msr Assouline had a brief telephone conversation with Msr Grandiere to discuss arrangements and to give directions. Msr Assouline also telephoned Mr Glyn and asked him to attend, as requested by Mrs McGarel-Groves. Msr Assouline explained that the French vet was coming to investigate Anna’s poor performance at Le Touquet and to discuss ways of improving it. It is likely that Msr Assouline also mentioned that it was proposed to repeat the treatment given in 1999…41. As I have already indicated, Mrs McGarel-Groves wanted Mr Glyn to be present at High Meadows when Anna was examined and treated by Msr Grandiere, because he was Anna’s vet and Mrs McGarel-Groves relied on him to protect her own interests and to ensure that Anna was not endangered in any way…

42. Mr Glyn also referred to his invoice dated 18th May 2001 and confirmed that it was essentially his record of what had occurred during Msr Grandiere’s visit and treatment of Anna. The body of the invoice is in the following terms: “Attend with French Team veterinary surgeon, Erik Grandiere. Discuss previous examination and treatment. Possible need for further joint or back injection…”

43. It has to be said that on a straightforward reading of the text of Mr Glyn’s 18th May invoice, one is left with the strong impression that Mr Glyn was not simply an observer of the injections administered to Anna, but that he had played a part in the actual decision-making relating to that form of treatment on 18th May (see, in particular, the first three sentences of the opening paragraph of the invoice. In my view, this general impression is greatly strengthened by Msr Grandiere’s account of the events of 18th May to which I refer below… 45. As I have already indicated, the wording of Mr Glyn’s invoice strongly suggests that he was much more involved in the decision-making as to the nature of the treatment to be given to Anna on 18th May 2001 than he was prepared to accept in evidence. For her part, Mrs McGarel-Groves accepted that she had not spelt out to Mr Glyn what she expected of him. She was content to assume that, as Anna’s vet, Mr Glyn would do whatever was necessary to ensure that Anna was treated properly and not endangered in any way and, in that sense, his was a supervisory role… 49. In his first witness statement dated 31st December 2003…Msr Grandiere… said this… “6…I did discuss the treatment with Mr Glyn… 7…after discussion with Mr Glyn (I) proceeded to take ultrasound scans pf the spinal area and the lombo (sic) sacral area…” 53…In giving a further account of the events of 18th May in a second witness statement dated April 2005, what Msr Grandiere said was this, so far as material: “5…I had asked Msr Assouline to ensure that Mr Glyn be present during my visit so that he could inform me about Anna’s history. Mr Glyn gave me a brief medical history in which he mentioned the treatments administered by Msr Lepage in 1999 (the details of which I already knew) and Sue Dyson in 1997 (Mr Glyn told me she had also administered corticosteroids)…If she had reacted badly to them before, I would have expected Mr Glyn to have mentioned it during our discussions. 6. Mr Glyn, Msr Assouline and I talked in English about the treatment which I planned to administer. In particular, we discussed the sites of the injections; sites of previous injections; and whether the drug would pass through Anna’s system before the next competition…He was certainly aware of the treatment that I administered because we discussed certain aspects of it.” “Attend with French Team veterinary surgeon, Erik Grandiere. Discuss previous examination and treatment. Possible need for further joint or back injection…” “6…I did discuss the treatment with Mr Glyn… 7…after discussion with Mr Glyn (I) proceeded to take ultrasound scans pf the spinal area and the lombo (sic) sacral area…” “5…I had asked Msr Assouline to ensure that Mr Glyn be present during my visit so that he could inform me about Anna’s history. Mr Glyn gave me a brief medical history in which he mentioned the treatments administered by Msr Lepage in 1999 (the details of which I already knew) and Sue Dyson in 1997 (Mr Glyn told me she had also administered corticosteroids)…If she had reacted badly to them before, I would have expected Mr Glyn to have mentioned it during our discussions.

[62]In my judgment, those findings amount to the following:(1) Mrs McGarel-Groves told Msr Assouline that she wanted Mr Glyn, as Anna’s regular vet, to attend the visit of the French vet to protect her interests and to ensure that Anna was treated properly;

(2) Msr Assouline passed on Mrs McGarel-Groves’ request to Mr Glyn;

(3) although there is no precision about the terms of that second telephone conversation, it is naturally to be inferred that, in one way or another, Msr Assouline did justice to Mrs McGarel-Groves’ instructions;

(4) that the instructions given to Mr Glyn, as understood by him, amounted to requiring of him a discussion with Msr Grandiere about Anna’s condition, her past treatment, and her current treatment, and thus some responsibility for her care or welfare, is corroborated by his invoice of the same date (as to which, his evidence was that he probably dictated his invoice as he left Msr Assouline’s premises, while still in his car);

(5) Msr Grandiere’s own evidence about his discussions with Mr Glyn, which the judge clearly accepted, further corroborated the evidence of such discussions contained in Mr Glyn’s own invoice.

[63]It was submitted by Mr Andrew Edis QC on behalf of Mr Glyn that the judge’s para 39, in which he recorded that Msr Assouline passed on to Mr Glyn Mrs McGarel-Groves’ request, amounted only to a recitation of evidence rather than to the judge’s own findings. In my judgment, that is an impossible submission. Para 37 appears under a heading, inserted at the beginning of para 4, entitled “The Facts”. When the judge records evidence rather than his own findings, he either quotes the evidence verbatim or makes the difference between evidence and his own findings clear. He states what evidence he accepts and what evidence he does not accept. The findings at para 39 are neither found in the context of the mere recitation of evidence, nor are they capable of being read merely as such a recitation.

[64]Mr Edis submitted that the judge’s finding about the Assouline/Glyn telephone conversation in which Mr Glyn was instructed to attend the French vet’s visit was too jejune to be of any assistance, even if it was a finding. It is true that the judge’s language is brief, but there was no need for him to repeat the terms of what he had already set out as to the McGarel-Groves/Assouline conversation. He said “as requested by Mrs McGarel-Groves”, and that it seems to me is sufficient. It is to be inferred that Msr Assouline did justice to his instructions. In any event, the closest contemporaneous evidence of that telephone conversation, namely Mr Glyn’s own invoice of 18 May 2001, states that Mr Glyn discussed “previous examination and treatment” and “Possible need for further joint or back injection”. Four years later at trial, Mr Glyn sought to backpedal from that invoice: but it was dictated as near as contemporaneously as it was possible to do, and it is confirmed by Msr Grandiere’s own evidence, which in this respect the judge accepted (at para 43).

[65]Mr Edis submitted that the transmission of Mrs McGarel-Groves’ instructions to Mr Glyn through Msr Assouline cannot survive the judge’s finding that Mrs McGarel-Groves accepted that she had not spelled out to Mr Glyn what she expected of him (at para 45). However, that merely reflected that Mrs McGarel-Groves accepted that she had not spoken directly to Mr Glyn herself. Mr Edis also submitted that the judge had erred, in dealing with the occasion of the earlier treatment in 1999, when he stated that he accepted Mrs McGarel-Groves’ evidence in her witness statement that – “I recall that I especially asked Mr Glyn to attend this appointment as my vet to check…that Anna was treated properly and so that I could be certain that she did not come to any harm.”

[66]In fact, that sentence was withdrawn by Mrs McGarel-Groves at the beginning of her evidence in chief. However, the matter is of very little consequence. Mrs McGarel-Groves withdrew that sentence because she was unable to say that in 1999 she had spoken directly to Mr Glyn, rather than, as in 2001, given her instructions to Msr Assouline. However, as a statement of her instructions for Mr Glyn, rather than, as it might have been interpreted, to Mr Glyn, it was accurate, as the remainder of the judge’s findings regarding the 1999 treatment confirms (see paras 25/29). For instance:

“Mrs McGarel-Groves agreed to what was proposed on the basis that Mr Glyn would be in attendance. I accept Mrs McGarel-Groves’ evidence…as follows…“I wanted my vet there to give me the comfort that she was being given the appropriate treatment.”

The judge made it plain that he accepted Mrs McGarel-Groves as an accurate witness of truth.

[67]In sum, the judge’s findings concerning the instructions given to Msr Assouline to pass on to Mr Glyn in my judgment well justify the judge’s instinct, referred to in several parts of his judgment, that Mr Glyn had been retained to supervise or monitor, or at least to play an equal participatory role in, the decision making regarding the treatment to be given to Anna in May 2001. After all, apart from the duty to observe and to intervene as necessary, which Mr Glyn accepted (see above), he also accepted that he was expected to provide information to Msr Grandiere as might be required concerning Anna’s history, including her past orthopaedic treatment in 1997 and 1999, and to discuss her oestrous cycle, and to participate in any ongoing treatment which might be necessary after Msr Grandiere had returned to France. When all these duties are considered as a whole, against the background of the facts found by the judge, it is simply counter-intuitive to conclude that Mr Glyn’s retainer was, in respect of Anna’s orthopaedic problems, at most a duty to observe, rather than a duty to monitor or to participate in the decision to treat and of how to treat Anna.

[68]There was some, but limited, discussion in this context as to what if any light, decided cases throw on the question of the width of Mr Glyn’s retainer.

[69]In this connection, Mr Edis relied in particular on the observations of Oliver J in Midland Bank Co Ltd v. Hett, Stubbs and Kemp

[1979] Ch 383

, 402G/403B, which Ward LJ cites at para [18] below. The essence of what Oliver J there said is that – “There is no such thing as a general retainer in that sense…The extent of his duties depends upon the terms and limits of that retainer and any duty of care to be implied must be related to what he is instructed to do…I think that the court must beware of imposing on solicitors – or upon professional men in other spheres – duties which go beyond the scope of what they are requested and undertake to do…and cases such as Duchess of Argyll v. Beuselinck [1972] 2 Lloyd’s Rep. 172; Griffiths v. Evans [1953] 1 W.L.R. 1424 and Hall v. Meyrick

[1957] 2 QB 455

demonstrate that the duty is directly related to the confines of the retainer.”

[70]However, if it is thought to find in those observations helpful guidance in the present dispute, other than that a professional’s duties must be derived from and related to the limits of his retainer or by reference to the authorities there cited, I do not think that can be done. The judge was well aware, as is this court, that Mr Glyn’s duties can not be found in the mere fact that he was Anna’s vet, but have to be located in the instructions or retainer, express or implied, which covered the visit of Msr Grandiere on 18 May 2001. That was what, for present purposes, the factual issue at trial was all about. That issue was quite unlike the issue which Oliver J was discussing in Midland Bank.

[71]In Midland Bank the defendant solicitors had been retained in connection with the grant by a father to his son of an option to purchase the father’s farm. The solicitors were acting for both father and son. The solicitors failed to register the option as an estate contract under the Land Charges Act 1925. That was the alleged negligence in question. The father later repented of the grant of that option and sought to defeat it by selling the farm to his wife for a nominal sum. That was more than six years after the grant of the option. It was only subsequently to that sale that the solicitors registered the option. The son’s attempt to enforce specific performance of the option failed. It was another five years after the sale to the wife, over 11 years after the grant of the option, before the son sued the solicitors on their negligence in failing to register the option. The solicitors said that the claim was time barred. That defence succeeded in contract, but failed in tort. It succeeded in contract because the retainer did not embrace a continuing duty to consider the registration of the option. The son (by now, his executors) nevertheless sought by a late amendment to say that it did, relying on no new facts but on a purely legal plea that the continuing duty arose from the relationship of solicitor and client between son and defendants. As Oliver J said (at 402G):

“Mr Harman [the executors’ counsel] sought to rely on the fact that Mr. Stubbs was [the son’s] solicitor under some sort of general retainer imposing a duty to consider all aspects of his interest generally whenever he was consulted, but that cannot be. There is no such thing as a general retainer in that sense.”

[72]That was the passage which led immediately to the observations cited above. It seems to me that, in the different circumstances of this case, it has little, other than the most general, relevance. This case is not about a general duty to advise. In this case Mrs McGarel-Groves has not sought to prove a general ongoing retainer in contract simply from the existence of a general relationship of vet and client in relation to the care of Anna. She has sought to prove a specific retainer in relation to the care of Anna in connection with the treatment which she was due to receive and did receive on the occasion of the visit of Msr Grandiere on 18 May 2001.

[73]In such circumstances, it seems to me that the line of cases concerning the finding of the applicable retainer or duty, and the determination of its limits, which goes back to the leading case of Crossley v. Crowther (1851) 9 Hare 384, is of greater relevance. It was to such cases that Oliver J was himself pointing in the passage cited above. See, in general, the discussion of this topic in relation to solicitors, for instance, in Clerk & Lindsell on Torts, 2006, 19th ed, at para 10-125, and in Jackson & Powellon Professional Negligence, 2002, 5th ed, at para 10-162. Thus in Griffiths v. Evans

[1953] 1 WLR 1424

(one of the cases cited by Oliver J in Midland Bank) Denning LJ said (at 1428):

“On this question of retainer, I would observe that where there is a difference between a solicitor and his client upon it, the courts have said, for the last 100 years or more, that the word of the client is to be preferred to the word of the solicitor, or, at any rate, more weight is to be given to it (see Crossley v. Crowther, per Turner V.-C., and Re Paine, per Warrington J.). The reason is plain. It is because the client is ignorant and the solicitor is, or should be, learned. If the solicitor does not take the precaution of getting a written retainer, he has only himself to thank for being at variance with his client over it and must take the consequences.”

[74]It is less likely that written retainers will be found between vets and clients. On the other hand, Mr Glyn’s invoice represents in its way the best contemporaneous evidence of his understanding of the scope of his responsibilities that day, and in my judgment the judge below was right to be impressed by it. The RCVS Guide to Professional Conduct 2000 states, inter alia, that it is the responsibility of vets to “maintain clear, accurate and comprehensive case records and accounts”, to “co-operate with colleagues and other health professionals when appropriate” and to “liaise with colleagues where more than one vetinerary surgeon is involved”.

[75]In the circumstances, if it had been necessary to decide this case by reference to the respondent’s notice, I would have been willing to do so. It seems to me that the judge’s own findings permit and require the acknowledgment of a retainer which was certainly wide enough to encompass Mr Glyn’s responsibility in this case, even if, on the main issue on appeal, I would have had doubts about whether the duty expressly found by the judge on the basis of Mr Glyn’s own acceptance of it had sufficed.

[77]I am in the unfortunate position of finding myself unable to agree with the firm conclusion shared by my Lords that Mr Glyn was guilty of professional negligence. I shall endeavour to express the reasons for my dissent as shortly as possible.

The first question: what facts did the judge find to be established?

[78]In the early paragraphs of his judgment the judge set out the background, particularly Mr Glyn’s involvement in Dr Dyson’s treatment of Anna in 1997 and Msr. Lepage’s treatment of her in 1999. In paragraph 36 he dealt with her poor performance in May 2001. “It was the French view that this was not a hormonal problem (i.e. was not linked to the fact she had been in season at the time), but that it was orthopaedic in nature and needed appropriate treatment with cortico-steriods. … Msr. Lepage gave Msr. Assouline the impression that the proposed treatment would be a repeat of the treatment given in 1999.”

[79]Paragraph 37 set out Mrs McGarel-Groves’ involvement thereafter. “Msr. Assouline telephoned Mrs McGarel-Groves and told her about what had occurred and what was proposed. Mrs McGarel-Groves agreed to the proposed treatment, again on the basis that Mr Glyn would be in attendance to protect her interests and to ensure that Anna was treated properly and not endangered. So it was that arrangements were made for the French team vet to come to High Meadows on 18th May 2001 in order to carry out the necessary treatment. At some stage, Msr. Assouline’s wife telephoned Mrs McGarel-Groves and confirmed that the examination had been booked for 18th May and that Mr Glyn had been asked to attend.”

[80]As far as I can see, paragraph 39 contains all the judge has to say about the crucial issue, namely the instructions given to Mr Glyn to attend. As Gage L.J. correctly noted:

“The terms upon which Mr Glyn was to attend and the instructions given to him about what his role was to be lie at the centre of this appeal.”

The judge said this:

“At some point before 18th May, Msr. Lepage contacted Msr. Assouline to explain that … he would not be attending High Meadows to examine and treat Anna himself, but would be sending instead Msr. Grandiere ... Subsequently, Msr. Assouline had a brief telephone conversation with Msr. Grandiere to discuss arrangements and to give directions. Msr. Assouline also telephoned Mr Glyn and asked him to attend, as requested by Mrs McGarel-Groves. Msr. Assouline explained that the French vet was coming to investigate Anna's poor performance at Le Touquet and to discuss ways of improving it. It is likely that Msr. Assouline also mentioned that it was proposed to repeat the treatment given in 1999.”

[82]In paragraph 40 the judge dealt with Mr Glyn’s description of the events of 18th May. He continued in paragraph 41:

“As I have already indicated, [this must be a reference to paragraph 37] Mrs McGarel-Groves wanted Mr Glyn to be present at High Meadows when Anna was examined and treated by Msr. Grandiere, because he was Anna's vet and Mrs McGarel-Groves relied on him to protect her own interests and to ensure that Anna was not endangered in any way. However, Mr Glyn strongly disputed Mrs McGarel-Groves' claim that he attended High Meadows on 18th May in any sort of supervisory role. He was also at pains to distance himself from the decision to inject Anna with cortico-steroids. Indeed, Mr Glyn effectively played down the significance of his role at High Meadows on 18th May by suggesting that the reason he attended was merely "partly out of courtesy and partly to provide a history" …”

[83]In paragraph 42 the judge referred to Mr Glyn’s invoice, the material part of which is quoted in paragraph 40 of Gage L.J.’s judgment. The judge continued in paragraph 43:

“It has to be said that, on a straightforward reading of the text of Mr Glyn's 18th May invoice, one is left with a strong impression that Mr Glyn was not simply an observer of the injections administered to Anna, but that he had played a part in the actual decision-making relating to that form of treatment on 18th May (see, in particular, the first three sentences of the opening paragraph of the invoice). In my view, this general impression is greatly strengthened by Msr. Grandiere's account of the events …”

[84]In paragraph 44

the judge recited Mr Glyn’s explanation of the meaning of the text of his invoice and he continued:

“45. As I have already indicated, the wording of Mr Glyn's invoice strongly suggests that he was much more involved in the decision-making as to the nature of the treatment to be given to Anna on 18th May 2001 than he was prepared to accept in evidence. For her part, Mrs McGarel-Groves accepted that she had not spelt out to Mr Glyn what she expected of him. She was content to assume that, as Anna's vet, Mr Glyn would do whatever was necessary to ensure that Anna was treated properly and not endangered in any way and, in that sense, his was a supervisory role.” [Emphasis added by me.]

“46. However, although Mr Glyn strongly disputed that his duties involved in any form of supervision of Msr. Grandiere’s treatment of Anna on 18th May, he did accept that his duties had included observing the treatment in question … Furthermore, as Mr McPherson [counsel for Msr. Grandiere] succinctly observed in paragraph 8(b) of his written closing submissions: ‘As a corollary of his duty to observe, Mr Glyn’s role also included an obligation to ‘take action’ in the event that Msr. Grandiere did something ‘extreme’ contrary to the welfare of [Anna], ‘totally against accepted methods of veterinary practice’, or ‘even remotely inappropriate’.” ‘As a corollary of his duty to observe, Mr Glyn’s role also included an obligation to ‘take action’ in the event that Msr. Grandiere did something ‘extreme’ contrary to the welfare of [Anna], ‘totally against accepted methods of veterinary practice’, or ‘even remotely inappropriate’.”

[85]As I read that judgment, the judge had up to this point been reciting the evidence he has heard together with some comments about it, but he had not made express findings on the facts which were central to the case and which were so heavily disputed. Those findings are made in paragraph 47 as are highlighted by the opening words which I emphasise:

“I am satisfied that it is apparent from Mr Glyn's own evidence that he accepted that his duty to observe Msr. Grandiere's treatment also involved or gave rise to a further duty to intervene to protect Anna if the proposed or actual treatment was in any way inappropriate.”

[86]In my judgment we must look to paragraph 47 to see what findings of fact were made. It is the kernel of the judgment as the judge makes plain when he returns to the question of duty in paragraph 66, the next matter I will review. For my part I do not read paragraph 39 as making a finding of fact, and even if I am wrong, it is totally unclear what facts the judge was finding in paragraph 39. Precisely what Msr. Assouline said to Mr Glyn was the subject of a heavy challenge. It is quite clear that Msr. Assouline had a very imperfect memory of the conversation. It is equally clear that what was said lies at the heart of this appeal. Absent express findings, there is no justification for going outside the ambit of what the judge did find to be Mr Glyn’s duty. Absent express findings, there is no justification for extending the ambit of the duty as was being argued especially by Mr McPherson. Those arguments may have struck the judge as sound, but the fact is that he did not expressly find in favour of them. Nor should we on this appeal. It is not for this Court to come to conclusions about what was said in the light of the uncertain evidence about it.

[87]There is a further point: the most that can be taken out of paragraph 39 is that “Msr. Assouline also telephoned Mr Glyn and asked him to attend as requested by Mrs McGarel-Groves”, (with the emphasis added by me). If it is suggested that therein lies a finding that Msr. Assouline expressly conveyed Mrs McGarel-Groves’ instructions to Mr Glyn then that is open to several objections. First there is the signal lack of particularly in the evidence of Msr. Assouline as to what passed both between him and Mrs McGarel-Groves and as between him and Mr Glyn. Secondly, if the judge was relying on Mrs McGarel-Groves’ account of her conversation with Mr Assouline as set out in paragraph 37 of his judgment, then that finding is at least unsatisfactory given that Mrs McGarel-Groves withdrew paragraph 27 of her witness statement to the effect that, albeit with reference to the 1999 treatment:

“I recall that I especially asked Mr Glyn to attend this appointment as my vet to check … that Anna was treated properly and so that I could be certain that she would not come to any harm.”

The third and it seems to me damning finding of the judge was made in paragraph 45 that Mrs McGarel-Groves accepted that she had not spelt out to Mr Glyn what she expected of him in May 2001 but was merely content to assume that he would do whatever was necessary to ensure the horse was treated properly and was not endangered in any way and, in that sense his was a supervisory role.

[88]It seems to me, in the light of paragraph 45, that there must be an inherent contradiction in the judgment to spell out of an assumption an express retainer to supervise.

What then was Mr Glyn’s duty as found by the judge?

[89]The judge’s findings begin at paragraph 66. He said:

“In his case, as Mr Lawrence observed in paragraph 8 of his written closing submissions, the primary case against him rests on an analysis of the scope of Mr Glyn's retainer. In my view, it is sufficient for the purposes of this case to approach the matter on the basis of the duties that Mr Glyn expressly and/or impliedly accepted that he owed to Mrs McGarel-Groves, i.e. duties to observe the treatment and to intervene if it was remotely inappropriate or contrary to Anna's welfare (see paragraphs 46 and 47 above), although I acknowledge the force of Mr Lawrence's submissions that his retainer was much more comprehensive than Mr Glyn was prepared to admit (see paragraphs 10 to 20 of Mr Lawrence's closing submissions).”

[90]That can be read in no other way than that the judge was finding the limited duty accepted by Mr Glyn. To acknowledge the force of an argument for an extended duty is not to find that the extended duty was proved. The matter is made clear by his conclusion set out in paragraph 71: – “Accordingly, for those reasons I have come to the firm conclusion that, in failing to enquire as to the identity of the cortico-steriods that Msr. Grandiere proposed to use and as to the dosages that he proposed to administer, Mr Glyn was in breach of his admitted duties to observe the treatment and to intervene if necessary.”

[91]In my judgment this appeal has to proceed on the basis that the duty found by the judge was “to observe the treatment and to intervene if it was remotely inappropriate or contrary to Anna’s welfare”. Mr Edis Q.C. on Mr Glyn’s behalf does not, and of course, cannot challenge that finding based as it is upon Mr Glyn’s own evidence. The true question at the heart of his appeal is whether Mr Glyn was in breach of his duty.

[92]In her respondent’s notice, the respondent submits that:

“Active participation in the management of the horse’s back/leg problems was implicitly within the scope of the retainer for the following reasons: (i) [Mr Glyn] had previously been concerned with the management of the horse’s back/leg problems. (ii) He would remain, in the words of the learned judge at paragraph 10 of his judgment: ‘[the] regular vet who is retained to care for the animal whenever veterinary treatment is required’, and as that ‘regular vet’ he would be called upon to deal with the management of any back/leg problems that might manifest themselves in the future (iii) He was asked to attend as veterinary surgeon retained by and paid by the claimant, on an occasion when the horse was potentially to be treated by a French vet who was retained not by the claimant but by the French dressage team, whose requirements and concerns might well be different to the claimant’s (iv) He was not instructed that the injection of the horse with cortico-steriods was a ‘fait accompli’ with which he need not concern himself; he took no steps to clarify the scope of his retainer or to identify and communicate to his client that he regarded it as limited in any way.” (i) [Mr Glyn] had previously been concerned with the management of the horse’s back/leg problems. (ii) He would remain, in the words of the learned judge at paragraph 10 of his judgment: ‘[the] regular vet who is retained to care for the animal whenever veterinary treatment is required’, and as that ‘regular vet’ he would be called upon to deal with the management of any back/leg problems that might manifest themselves in the future (iii) He was asked to attend as veterinary surgeon retained by and paid by the claimant, on an occasion when the horse was potentially to be treated by a French vet who was retained not by the claimant but by the French dressage team, whose requirements and concerns might well be different to the claimant’s (iv) He was not instructed that the injection of the horse with cortico-steriods was a ‘fait accompli’ with which he need not concern himself; he took no steps to clarify the scope of his retainer or to identify and communicate to his client that he regarded it as limited in any way.”

[93]For my part, I would not extend the duty on that basis or at all. My first reason is that, as has already been stated, “the terms upon which Mr Glyn was to attend and the instructions given to him about what his role was to be lie at the centre of this appeal”. His instructions came from Msr. Assouline. The judge’s findings about what was said are too perfunctory to permit this Court to supplement them. If there is merit in the cross-appeal, then the result of that cross-appeal would have to be a retrial.

[94]Secondly, the background to this case as correctly set out by Gage L.J. in paragraph 5 of his judgment is that Mr Glyn was paid for his services on the basis of work carried out by him as and when requested but was not paid any general retainer. That is why the instructions given in May 2001 were crucial because those instructions do define the scope of the duty. The words of Oliver J. in the well-known solicitors’ negligence case of Midland Bank v Hett, Stubbs and Kemp

[1979] Ch. 384

, 402/403 apply equally here:

“There is no such thing as a general retainer in that sense. The expression ‘my solicitor’ is as meaningless as the expression ‘my tailor’, or ‘my bookmaker’ in establishing any general duty apart from that arising out of the particular matter in which his services are retained. The extent of his duties depends upon the terms and limits of that retainer and any duty of care to be implied must be related to what he is instructed to do. While no doubt the duties owed by a solicitor to his client are high, in the sense that he holds himself out as practising a highly skilled and exacting profession, but I think that the court must beware of imposing on solicitors – or upon professional men in other spheres – duties which go beyond the scope of what they are requested and undertake to do. It may be that a particularly meticulous and conscientious practitioner would, in his client’s general interest, take it upon himself to pursue a line of enquiry beyond the strict limits comprehended by his instructions. But that is not the test. The test is what the reasonably competent solicitor would do having regarding to the standards normally adopted in his profession, and [the] cases … demonstrate that the duty is directly related to the confines of the retainer.”

[95]Since the crucial issue all boils down to what passed between Msr. Assouline and Mr Glyn, and that is unclear on the judge’s findings, I would not extend the duty. It is not incumbent upon the professional man to clarify the scope of his retainer, certainly not in the limited circumstances of this case where, to everybody’s knowledge, Mr Glyn was playing second fiddle to the French veterinary team charged with the responsibility of treating the horse on this occasion.

[96]In my judgment no inference can be drawn from past treatment nor from the single reference in the invoice to discussing previous examination and treatments. One purpose for Mr Glyn’s attendance was to be an accurate historian recounting treatment in the past with which he had been concerned. It does not follow that he was given a supervisory role. He was merely an observer.

The crucial question: was Mr Glyn in breach of his duty?

[97]Having decided for the purpose of the case that the duty on Mr Glyn was to observe the treatment and to intervene if it was remotely inappropriate or contrary to Anna’s welfare, he identified the breach in paragraph 67 saying:

“Mr Glyn effectively rendered himself unable to judge whether the proposed treatment was inappropriate by his failure to make any inquiry as to the types of cortico-steroids that were to be used or as to the dosages that were to be administered.”

[98]In other words he was holding that a failure to make enquiries was a breach of a duty to observe. He explained how he arrived at that conclusion in paragraph 68 when he “entirely” agreed with the submissions made by Mr McPherson in his written closing submissions to this effect:

“If a professional is tasked with ‘observing’ a procedure, it is clearly incumbent upon him to take reasonable steps to clarify and seek an understanding of what he is in fact observing in the event that what he sees is unclear, incomplete or otherwise insufficient to provide him with a complete and accurate picture of the procedure. Thus in order to fulfil the role described above Mr Glyn needed not only to observe the steps being taken by Msr. Grandiere but also to obtain a complete and accurate understanding of what he was observing – in particular of the treatment that was intended/proposed. Without such an understanding, he could not possibly know whether the treatment was sufficiently ‘extreme’, ‘contrary to the welfare of [Anna]’, ‘totally against accepted methods of veterinary practice’ or ‘even remotely inappropriate’ to require intervention on his part.”

[99]The judge rejected the submission on behalf of Mr Glyn that he was not obliged to enquire in view of the fact that Msr. Grandiere gave the appearance of being competent. So the judge held in paragraph 70:

“In effect, as Mr McPherson observed, Mr Glyn's acknowledged duties of observation and, if necessary, intervention provided the essentials that Mrs McGarel-Groves required for herself and for Anna, namely a line of defence against an apparently competent vet acting incompetently. By failing to ask the relevant questions (which Msr. Grandiere would have willingly answered) Mr Glyn failed to provide that line of defence. If he had asked the relevant questions, he would have realised that the treatment was, at the very least, inappropriate and he would have intervened, as he himself accepted in evidence.”

[100]I respectfully disagree. A duty to observe involves no more than the duty to take note of what is being done. It is less onerous than a duty to monitor or a duty to supervise. Mr Glyn was not there for those purposes. He was not there to oversee the actions of the vet entrusted with the treatment. He was a mere observer. As Mr Edis submits, he could have asked questions, but he was not obliged to do so.

[101]There is a second flaw in the judge’s reasoning. In paragraph 70 the judge found that the failure to ask the relevant questions was a failure to provide a line of defence against an apparently competent acting incompetently. That, however, was not the duty which was imposed upon Mr Glyn as the judge decided it in paragraphs 47, 66 and 70. He was not being asked to ensure that the apparently competent French vet was in fact acting competently. That amounts to supervision. Moreover, when the judge spoke of that line of defence providing the essentials that Mrs McGarel-Groves required for herself and Anna, he seemed to have forgotten his finding in paragraph 45 that for her part, Mrs McGarel-Groves accepted that she had not spelt out to Mr Glyn what she expected of him but was merely content to assume that as Anna’s vet he would do what was necessary to ensure that Anna was treated properly and was not endangered in any way and, in that sense that was his supervisory role. Thus in paragraph 70 the judge in my respectful judgment made two errors, first to elevate the duty beyond that which he had found and secondly to find that elevated duty without an evidential basis for it.

[102]Paragraph 71 made clear the judge’s conclusion that the failure to enquire as to the identity of the drugs to be used and the dosages to be administered constituted the breach of the duty to observe the treatment and intervene if necessary. Since a failure to enquire cannot constitute a breach of a duty to observe, I would allow this appeal.