Tongue v Royal Society for the Prevention of Cruelty To Animals & Anor [2017] EWHC 2508 (Ch)

[2017] EWHC 2508 (Ch)Case No 8170 of 2016
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue BIRMINGHAM DISTRICT REGISTRY
IN BANKRUPTCY
RE: DAVID LIONEL TONGUE
Venue Birmingham Civil Justice Centre, 33 Bull Street, Birmingham, B4 6DSDate 12/10/2017
Before
LORD JUSTICE NEWEY
Between
DAVID LIONEL TONGUEApplicant(1) ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALSRespondents(2) TIMOTHY HEASELGRAVERespondent
The Applicant appeared in person for in personMr Ali Tabari (instructed by Pickering & Butters LLP) for First RespondentMr Amit Gupta (instructed by Harrison Clark Rickerbys) for Second RespondentHearing Hearing dates: 13-16, 19-21 and 23 June 2017
Judgment ApprovedLord Justice Newey :
[1]In August 2006, the first respondent, the Royal Society for the Prevention of Cruelty to Animals (“the RSPCA”), removed cattle belonging to the applicant, Mr David Tongue (“Mr Tongue”), from a farm of his called Emmadale Farm. The issue in this litigation is whether the RSPCA has a claim against Mr Tongue for costs it subsequently incurred in relation to the cattle. The case involves, in particular, the law of bailment.

Narrative

[2]Emmadale Farm is in Rowney Green in Worcestershire. It comprises about 70 acres of land and houses a large purpose-built livestock shed. The farm is straddled by a bridleway.[3]Until he became bankrupt, Mr Tongue was the sole owner of both Emmadale Farm and another farm, Lower Farm, Inkberrow, as well as land at Crumpfields Farm, Redditch. A further farm, Pumphouse Farm, Redditch, was owned by Mr Tongue, his brother Steven and their father, Mr Lionel Tongue.[4]In 1995-1996, Mr Tongue and his father were convicted in the Magistrates Court of offences of causing unnecessary suffering to cattle, contrary to section 1 of the Protection of Animals Act 1911 (“the 1911 Act”), and under the Welfare of Livestock Regulations 1994 (“the 1994 Regulations”). Fines were imposed.[5]On 10 January 2002, Mr Tongue, his brother and his father were all convicted in the Magistrates Court, on the prosecution of Worcester County Council (“the Council”), of causing unnecessary suffering to certain of their cattle. They were each fined and also disqualified under section 1 of the Protection of Animals (Amendment) Act 1954 from having custody of livestock for life. An appeal was dismissed by the Crown Court on 23 December 2003.[6]On 30 October 2002, the Tongues were all convicted, at the instigation of the Council, of causing unnecessary suffering to some further cattle and a disqualification order was once again made. The Tongues appealed, but again without success.[7]On 22 May 2003, all three Tongues were convicted, at the behest of the Council, of failing to comply with the disqualification orders of the previous year and given prison sentences (suspended in the case of Mr Lionel Tongue). Mr Tongue was imprisoned for 12 weeks.[8]The Council also, on 21 March 2003, issued civil proceedings in which it sought an injunction permitting it to remove animals from the care of the Tongues, together with ancillary relief. The matter came before Neuberger J, who held on 6 August that the cattle at Emmadale Farm and other farms were kept in breach of the disqualification orders, but that, while he would have jurisdiction to grant an injunction restraining the Tongues from having custody of any animals, there was no power in the Court to order the cattle to be taken into the possession of the Council or any other third party. Neuberger J further considered that a contention that an animal in the custody of a disqualified person should be treated as constructively abandoned could not be justified without statutory authority.[9]The Council appealed, but its appeal was dismissed. Peter Gibson LJ, giving the leading judgment, said (in paragraph 42):
“In truth what the Council is doing is to point to deficiencies in the present criminal law and to ask the court to make an order overcoming those difficulties. I do not doubt that local authorities have real problems when disqualified defendants continue to keep custody of animals and I have sympathy with the Council, but I do not accept that this court has jurisdiction to make the order which it seeks.”
[10]By the middle of January 2006, Mr Tongue had recruited a Mr Alan Sealey to work at Emmadale Farm as a tractor driver and stockman. Mr Sealey would visit the farm each day and, until 12 June, would at least sometimes provide the cattle there with hay and straw bedding.[11]On 24 May 2006, Mr Tongue, his brother and their father were all imprisoned for a year for non-payment of fines and costs.[12]Mr Andrew Newitt, a veterinary surgeon who was contracted to work for the State Veterinary Service, visited Emmadale Farm a number of times in the period between Mr Tongue’s imprisonment and the end of July 2006. He first went there on 31 May. He found that there was “no grass in the fields”, that certain of the cattle were “emaciated”, that the cattle “were streaming around the farm unable to find adequate pasture” and that “[n]o attempt had been made to provide [the cattle] with supplementary nutrition, mineral licks, or fodder”. When Mr Newitt returned on 2 June, “[b]ecause of starvation, the cattle were increasingly breaking down boundary fences all around the farm to break out”, and 12 of the cattle were shot on welfare and/or health and safety grounds. Another 15 cattle, of whom 13 were emaciated, were slaughtered when Mr Newitt went back to the farm on 21 June. On that occasion, the stream “was no longer flowing”, the ground “was bare except for bennets and thistles”, the young bulls “were continuously fighting” and many of the cattle “were scouring”. By 30 June, when Mr Newitt was next at the farm, “[t]here was no grazing and the pasture was browning” and the stream “had largely dried up”. Further cattle were slaughtered on 6 July. 24 unidentified animals were shot under the powers set out in European Regulation EC 494/98 and 17 animals were shot because they “were deemed to be emaciated and [to] have suffered long-term organ damage from their treatment with little hope of recovery”. At this point, “[n]one of the water troughs contained water”, the stream “was dry except for the thin overflow stream running at the far end of the farm”, the cattle “were drinking filthy water from stagnant ponds which bred biting flies” and they “were desperate for food and starving”. Three more cattle were shot on 26 July, despite the opening of a small paddock. Mr Newitt observed that it was clear that the water in the tank there “had been flowing for less than 48 hours”.[13]In all, 91 of the cattle at Emmadale Farm had been shot on the instructions of Worcestershire Trading Standards – Animal Health (“Trading Standards”), many of them since Mr Tongue had been imprisoned. The person who slaughtered the animals was a Mr Philip Smith-Maxwell, who had worked with Trading Standards for several years. He had a herd of cattle of his own at Phepson Manor, Droitwich, and Trading Standards had sometimes boarded livestock there, where it had registered a holding of its own. Mr Smith-Maxwell also operates a horse ambulance service.[14]On 20 July 2006, when feeding the cattle at Emmadale Farm, Mr Smith-Maxwell was attacked by a cow. He was able to escape injury only by retreating into his vehicle, which, however, was damaged by the cow’s horns. Shortly afterwards, the bridleway across Emmadale Farm was closed by the Council.[15]By this stage, Mr Sealey had ceased to be the stockman. On 12 June 2006, Mr Andy Williams, animal health officer with Trading Standards, had warned Mr Sealey that, if he remained as stockman, he risked becoming responsible for matters such as food, vets’ bills, tagging and any accidents caused by the cattle. As a result, Mr Sealey said that he would stop being the stockman. He explained in evidence that he continued to visit Emmadale Farm as tractor driver, but that he stopped feeding the cattle when he ceased to be the stockman.[16]By the end of July 2006, stories about Emmadale Farm were appearing in the press. The BBC, for example, reported:
“Up to 90 cows at a farm in Alvechurch, in Worcestershire, have been killed after being abandoned by their owners who have been jailed.”
The article went on to state that “a further 30 [cattle] are starving to death” and that Mr Williams had said:
“There is very little we can do. To take the animals off the farm we need a court order which would take so long it’s a non starter and if we start caring for them the authority would become liable which we want to avoid. We are monitoring the situation daily and where necessary the state veterinary service is used to humanely destroy the animals.”
[17]Having made inquiries of Mr Williams, the RSPCA decided to step in where Trading Standards feared to tread. As Chief Inspector (now Superintendent) Lee Hopgood of the RSPCA recorded in a witness statement he made in September 2006, “[d]ue to the number of cattle shot at Emmadale Farm in a ‘suffering state’, the fact that Trading Standards had stated no one was tending to the cattle on a daily basis and the fact that the owner, David Tongue was in prison”, he “took the view that on the face of it [he] had reasonable grounds to suspect that the cattle had been abandoned, this being an offence under the Abandonment of Animals Act 1960”. He accordingly told Mr Williams that he was intending to have the cattle seized.[18]At 7.50 am on Tuesday 1 August 2006, Chief Inspector Hopgood went to Emmadale Farm. At 8.45 am, he met PC Andrew Wright, whom he had asked to come to the property (although PC Wright said in cross-examination that he had not gone onto the Farm itself). PC Wright decided to seize the cattle and place them in the care of the RSPCA. He purportedly did so pursuant to section 19 of the Police and Criminal Evidence Act 1984 (“PACE”), on the basis that the cattle were “evidence of an offence under the Abandonment of Animals Act 1960”. He accepted during his oral evidence that a notice needed to be issued where the power conferred by section 19 of PACE was exercised and said that he could not remember what, if anything, had been done in this respect.[19]Section 19 of PACE provides, so far as relevant, as follows:
“(1) The powers conferred by subsections (2), (3) and (4) below are exercisable by a constable who is lawfully on any premises. … (3) The constable may seize anything which is on the premises if he has reasonable grounds for believing— (a) that it is evidence in relation to an offence which he is investigating or any other offence; and (b) that it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed.”
At the time, section 1 of the Abandonment of Animals Act 1960 stated:
“If any person being the owner or having charge or control of any animal shall without reasonable cause or excuse abandon it, whether permanently or not, in circumstances likely to cause the animal any unnecessary suffering, or cause or procure or, being the owner, permit it to be so abandoned, he shall be guilty of an offence of cruelty within the meaning of the principal Act [i.e. the 1911 Act] and liable to the penalties prescribed by subsection (1) of section one of that Act, and the provisions of the Protection of Animals Acts shall apply to an offence under this section as they apply to an offence against the said subsection (1).”
The Animal Welfare Act 2006 was not yet in force.[20]Both Chief Inspector Hopgood and PC Wright clearly had the best of motives. Were, however, PC Wright correct in thinking that he did not go onto Emmadale Farm itself, there might be an issue as to whether cattle there could have been susceptible to seizure (since it is apparent from subsections (1) and (3) that the power conferred by section 19(3) of PACE relates to things on “the premises” which the constable is “lawfully on”). It is also open to question how seizure of the cattle was necessary in order to prevent them being “concealed, lost, altered or destroyed” and whether it would have sufficed to photograph them. Section 22(4) of PACE stipulates that nothing can be retained for use as evidence at a trial if a photograph would be sufficient for that purpose.[21]Following the seizure of the cattle, Chief Inspector Hopgood asked Mr Steve Borsberry, an independent veterinary surgeon, to come to Emmadale Farm, which he did. Finding, however, that he was unable to assess the cattle to his satisfaction, he arranged to return to the farm two days later.[22]Also on 1 August 2006, Inspector David Long of the RSPCA sought to obtain Mr Tongue’s permission for the RSPCA to be on Emmadale Farm and to attend to the cattle’s needs. At 11.11 am, he telephoned the chaplain at Blakenhurst Prison, where Mr Tongue was being held. At 1.38 pm, the chaplain reported that she would not be able to speak to Mr Tongue until 3.30 pm but that his father had told her that he believed that footpaths and bridleways at Emmadale Farm allowed anyone to “be in field to water/grazing” (to quote from Inspector Long’s notebook). At 3.33 pm, the chaplain rang again and said (in the words of the notebook):
“David Tongue gave verbal permission for RSPCA to enter land at Emmadale to care for (f[ood]/w[ater]/vet) cattle for the time being until further notice. Signed witnessed dec witnessed by Sheila Nall [i.e. the chaplain] she will keep original and fax copy. Tongue also gave details of people who were caring for cattle – Sealy and girlfriend Alison Greene.”
Inspector Long passed on the message by telephone to Chief Inspector Hopgood. The document that Mr Tongue evidently signed has not, however, come to light.[23]On 3 August 2006, Mr Borsberry, Chief Inspector Hopgood, Inspector Long, Mr Newitt, Mr Smith-Maxwell, Mr Williams and others met at Emmadale Farm. As Mr Newitt recorded, it was “agreed that nothing required immediate destruction, that the pasture was incapable of sustaining the cattle which would require hand feeding, and that there were serious health and safety issues involved in handling what were semi-feral animals”. For his part, Mr Borsberry prepared a report for Chief Inspector Hopgood following his 3 August visit to the farm. He stated in this that the cattle had “body scores” of between 1½ and 3½ and that none of them needed euthanasia at that stage on humane grounds. He also, however, recorded that the cattle were “extremely suspicious of humans”, that “attempts to drive and gather these cattle could lead to a stampede”, that many of them “showed aggression to their fellows by head-butting”, that many of them were also horned and that “Grass quality is poor and sparse and … is unlikely to grow significantly until next (2007) spring”. He listed the following requirements:
“⸰ Facilities to enable veterinary inspection and treatment when required. ⸰ Provide feed to produce body condition scores of between 2.5 and 3.5. ⸰ Only experienced people to care for these cattle. ⸰ A minimum of two people … to be present when the cattle are handled. ⸰ Entering a pen on foot where the cattle are housed is not recommended.” ⸰ Entering a pen on foot where the cattle are housed is not recommended.”
[24]Body condition is assessed on a scale of 1-5. Score 1 is extremely thin and score 5 is extremely fat. A score of 0 implies emaciation. Mr David Martin, a veterinary surgeon who gave expert evidence, explained that a score of between 2½ and 3½ is about right. A score of 1½, he said, is somewhat below what would normally be considered appropriate but is not outside the range of acceptability.[25]Mr Borsberry returned to Emmadale Farm on 14 August 2006. He reported that the cattle, which were being fed by the RSPCA, appeared to have an improved “rumen fill”: in other words, that the cows had increased belly sizes. He also noted that 25 cattle had been enticed into the shed, but that the remaining five had refused to go in and that, when one of the 25 became “excited” and left the building, the other 24 followed at a gallop.[26]Chief Inspector Hopgood likened Emmadale Farm to a prairie. The cattle, he said, could move freely around the farm because the fences were insecure. Mr Newitt spoke in evidence of “ranching”.[27]The RSPCA’s intervention at Emmadale Farm was not, it appears, universally welcomed. Mr Tongue said that he had been told by a cousin who went to the farm that there was an “almighty row” between the RSPCA and Trading Standards. There were echoes of such a disagreement in evidence given by Mr Newitt and Mr Smith-Maxwell.[28]Mr Borsberry, it seems, remarked to the RSPCA that it became involved at its own peril. Chief Inspector Hopgood and Inspector Long did not remember this being said, but Mr Newitt and Mr Smith-Maxwell both recalled the incident.[29]The RSPCA decided that the cattle at Emmadale Farm should be moved to Phepson Manor. However, there were serious problems with the identification of the cattle. No passports were available for them and it was doubtful whether they had the correct tags. As a result, the RSPCA could not move them without obtaining a licence to do so. On 21 August 2006, a licence was granted for the cattle to be taken to Phepson Manor. It was, I gather, made quite clear that what was being given was a one-way licence: the cattle would not be able to leave Phepson Manor unless slaughtered. The Department for Environment, Food & Rural Affairs stated in a letter dated 24 January 2007 to the RSPCA:
“The movement of these animals was … made on the understanding that the cattle would not be moved further.”
[30]On 22 August 2006, the 30 cattle at Emmadale Farm were moved to Trading Standards’ holding at Phepson Manor. The RSPCA had agreed with Mr Smith-Maxwell that he would be paid £4 per head, per day, for housing the cattle.[31]In the event, the herd remained at Phepson Manor for more than seven years. During that time, more than 30 calves were born. Quite a number of the cattle were pregnant when moved from Emmadale Farm. Some further pregnancies arose at Phepson Manor because an animal thought to be a castrate proved to be functioning. Mr Smith-Maxwell charged lower daily rates for young animals.[32]On 26 September 2006, Mr Tongue was interviewed under caution in Blakenhurst Prison by Inspector Christopher Simpson of the RSPCA. On 24 November, however, Mr Jason Fletcher, who is now the RSPCA’s principal prosecution case manager, concluded that no proceedings should be issued against Mr Tongue for the offence of abandonment.[33]Going back a little in time, Mr Fletcher had told Mr Tongue in a letter of 24 August 2006 that his cattle had been “moved … to a separate holding where they could be cared for adequately and their welfare would not be compromised”. The place to which the cattle had been taken was not identified in the letter.[34]On 15 October 2006, Mr Tongue wrote to Inspector Simpson. Among other things, he said in the letter:
“I want to know where my 30 cows are …. I am the owner of them, and as such, surely I have a right to know where they are, and how they are doing”; “After waiting many weeks, I have had the opportunity of meeting the Police Liasons Officer, here in HMP Blakenhurst. I explained to him, amongst other things, that my herd of cows had been removed from Emmerdale Farm … without my permission, and I asked him if he would report this to the police as an incident of cattle rustling. As you entered my private property, through a locked gate, and removed my cows without my permission, you may have broken the law as far as I am concerned”; and “I am awaiting legal advice on this matter, but in the meantime, you MUST NOT, IN ANY WAY, SHAPE OR FORM, PERMANENTLY DEPRIVE ME OF THE HERD OF COWS THAT ARE OWNED BY ME.”
[35]In a further letter to Inspector Simpson, dated 15 November 2006, Mr Tongue observed, having referred to Inspector Simpson’s visit to Blakenhust Prison:
“I made it clear to you that although I gave permission for the RSPCA to care for the cows on my land, I certainly did not give permission for them to be removed.”
[36]Responding to Mr Tongue’s 15 October letter on 24 November 2006, Mr Fletcher said, “Unfortunately, I am not [at] liberty, due to constraints on me, to disclose the whereabouts of this location [i.e. that to which the cattle had been moved]”. Writing again on 14 December, Mr Fletcher said:
“Due to the nature of the holding [i.e. Emmadale Farm] and the character of the herd, the only way the Society could ensure their future welfare was to move them to a more suitable location. This was therefore done and they have been boarded at the Society’s cost ever since. One of the conditions of this derogated license, given that there is not the appropriate paperwork accompanying these animals, is that they cannot be moved again unless for slaughter. I therefore am writing to you to put you on notice that it is the Society’s intention to send those animals without calves for slaughter on the 4th January 2007.”
Mr Fletcher also explained that valuers whom the RSPCA had instructed had valued the cattle and their calves at a total of £8,765 on the assumption that they had the relevant paperwork and that, on the basis that no paperwork was available, the valuation showed that “the value of the cattle is minus £1,620.00, i.e. there is a cost to disposal over and above the value of the animals”.[37]Mr Tongue protested in letters dated 18 November to, first, Mr Fletcher and, secondly, Chief Inspector Hopgood and Inspector Long. The letter to Mr Fletcher included this:
“I do not agree that the cattle could not have been cared for on my land. That is just ludicrous. I gave consent for the RSPCA to go onto my land to care for my animals, I certainly did not agree for them to be removed, or for a third party to become involved. Who told you that the cattle never had passports (or documents)? You no longer have consent to care for my cattle, as you have [breached] the agreement. In fact the RSPCA were on my land before my permission was granted, because I saw my cattle/farm on the TV midday news.”
[38]In subsequent letters to Mr Fletcher of 20 and 27 December 2006, Mr Tongue reiterated his objections. In the later of the two letters, Mr Tongue said:
“The chaplain here, Mrs Sheila Nall, explained to me on the first of August 06 that if I allowed the RSPCA onto my land, my cattle would be saved. If the cattle are killed/sold, then the RSPCA will be in breach of contract.”
[39]Mr Fletcher’s reply of 29 December 2006 included this:
“If the animals are not slaughtered, without the necessary paperwork they will have to remain where they are, boarded at considerable cost to the RSPCA. The RSPCA is a charity and is not in a position to provide private boarding for other people’s animals on a long term basis. One alternative would be that you meet this ongoing cost until their natural death. If you wish to make proposals along these lines, I will be obliged to consider them. In light of your indication to seek legal advice and the intervening Christmas period, I propose to delay arrangements for the slaughter of these animals for a period of two weeks. If during that time, I do not hear from either your legal representative or yourself with proposals for the delivery of the relevant identification documentation or how the cost of boarding these animals is to be met in the long term, I shall arrange for the slaughter of the cattle on or about the 24th January 2007.”
[40]Mr Tongue continued to voice objections. In a letter to Mr Fletcher of 5 January 2007, for example, Mr Tongue said:
“Your threats (or intentions) to kill my beautiful animals has made me feel seriously ill. You should not have removed them from my land, you may well be in contempt of Court: the Birmingham High Court. You should return my property.”
[41]Replying on 15 January 2007, Mr Fletcher said that the RSPCA had revoked its decision to slaughter the cattle, but that, as Mr Tongue was disqualified from keeping livestock, neither the original cattle nor their calves could be lawfully returned to his care. Mr Fletcher continued:
“Given the movement restrictions as set out above, we ask you to give consideration to whether there are any circumstances in which you would agree to sign over ownership of the cattle to the RSPCA?”
[42]So far as I know, Mr Tongue, who was released from prison on 22 January 2007, did not reply to this letter. Asked about the correspondence during cross-examination, he said that he was in clover. He explained that he did not regard the charges that were accruing as his problem, expressing the view that the RSPCA should not have taken the cattle in the first place. If, he said, you do not like the taste of the medicines, you should keep away from the doctor.[43]There was some further correspondence between Mr Tongue and the RSPCA in the autumn of 2007. Mr Fletcher said in a letter dated 18 September to Mr Tongue:
“Having regard to the length of time that we have cared for your cattle at such a considerable expense and other material factors, the decision has been made at a senior level within the organisation that this level of expenditure can not continue. We henceforth give you notice that our own expenditure must now cease, with effect from Friday 5th October 2007. In relation to the future of the cattle you must now make your own arrangements as a matter of priority. You could either pay the RSPCA the weekly amount above [viz. approximately £1,100] or make your own arrangements as a matter of priority.”
In his reply of 2 October, Mr Tongue said:
“If you feel that you cannot care for them, they must be returned to my land where I will make the appropriate arrangements for their care and custody. You have no right to slaughter them and the amount of boarding fees you have paid is beyond all reasonableness and I cannot be held responsible for your un-wisdom in these cases.”
Writing back on 29 October, Mr Fletcher said:
“The cost to date of keeping the herd is in the region of £60,000 and continuing to accrue at £850.00 per week. You have not indicated you are intending to repay these amounts to the Society, or to make future payments against the ongoing cost. Should the RSPCA continue to meet the expenses of boarding the cattle, it is clear that we cannot realistically expect to recover these amounts from you. We must therefore look at mitigating our loss. The cattle can not be moved as they do not possess the necessary paperwork and thus can not be sold and DEFRA have already indicated when granting the first movement licence, that they would not be prepared to grant another one. The cattle can be moved under the terms of the existing licence only for the purpose of slaughter. Therefore the only option available to the Society is to have the herd humanely destroyed. We are reluctantly compelled to this conclusion in order to reduce the £850.00 per week we are currently paying on your behalf and to contain your own liability for these amounts.”
[44]Correspondence resumed two years later. On 8 December 2009, Mr Fletcher suggested a meeting “in order to discuss this further and hopefully come to an agreement which is satisfactory to all concerned”. In due course, Mr Fletcher and Chief Inspector Hopgood met Mr Tongue and his brother on 26 March 2010 at a service station on the M42 motorway. A few days after the meeting, Mr Fletcher wrote to Mr Tongue setting out the “current proposal” and asking for Mr Tongue’s thoughts. Expressing the hope that “both parties will be able to draw a line under this issue and bring it to a conclusion”, Mr Fletcher said:
“It is proposed that you sign … the unpassported cattle over to the RSPCA to deal with as they are able. The Society will return those younger calves with passports to your nominated keeper at your nominated premises.”
Despite chasers, however, Mr Tongue did not respond.[45]At the end of the year, the RSPCA tried a different approach, but with no more success. On 16 December 2010, Mr Fletcher sent Mr Tongue a cheque for £10,000 representing “an offer to purchase those cows currently held by ourselves, totaling some 62 head and includes all of those cattle which were originally removed by the police from Emmadale Farm in 2006 and placed into the care of the RSPCA and those calves born to the cattle whilst in our care”. Mr Tongue, however, neither replied nor banked the cheque.[46]There were further contacts between the RSPCA and Mr Tongue in 2012.[47]On 14 September 2012, Chief Inspector Hopgood telephoned Mr Tongue and arranged to meet him the next morning at Pumphouse Farm. The entry in Chief Inspector Hopgood’s notebook for the visit, which lasted less than an hour, states:
“Met David & Steven Tongue & a female – had a discussion regarding signing over or selling the 32 un documented cattle – also discussed the returning of the other cattle to Emmadale Farm, David has done no work to prepare farm as per vets recommendation. He will not make a decision ref the 32 today, agreed for me to call back in a week. Again discussed the issue of him attending Emmadale Farm once cattle are returned.”
The “female” was evidently Ms Allison Green, a former girlfriend of Mr Tongue.[48]Mr Tongue contends, but the RSPCA denies, that a binding agreement was concluded on 14 September. I shall have to return to this dispute later in the judgment.[49]On 21 November 2012, Mr Fletcher wrote to Mr Tongue in these terms:
“On 9 December 2011, I wrote to you inviting you to make preparations to receive the 26 passported cattle; because of your disqualification from keeping livestock the return would have to be to a person nominated by you. You indicated that you were interested by ringing the RSPCA on 31 January 2012, and nominated your cousin Aaron Tongue to care for them. The Society had John Blaney BVSc MRCVS prepare a report dated 20 February 2012 on the improvements that would be required to a farm building and pasture on Emmerdale Farm …. You were provided with a copy of the report and said that you agreed with the points made stating that they were all ‘common sense’. Since then you have taken no action to prepare the building and land to receive the 26 passported cattle. It is therefore impossible to return the 26 cattle as to do so would be to place them in similar conditions to those that led to your cattle being removed in the first place. The position now is that the 26 passported animals are worth at market at most some £1,000 each. The others have no market value as they cannot lawfully be moved and even if slaughtered on site cannot be sold for any purpose …. You have known that the RSPCA was incurring costs for looking after your cattle from the date of their seizure …. At no stage have you indicated any willingness to give up ownership of any of the cattle, or taken steps to arrange for the care of those passported cattle that can be moved. No doubt you will agree that it is reasonable that you pay some or all of those costs of maintaining your cattle from the date they were seized and into the future. The RSPCA is no longer willing to meet these costs and requires that you give immediate directions for the disposal of all the cattle.”
The letter went on to say that, if Mr Tongue did not provide directions within three weeks, the RSPCA would seek a Court order for, among other things, a “declaration that the RSPCA holds and has held the cattle under a bailment” and that “the terms of the bailment are and have been that you pay the reasonable costs of maintaining the cattle”.[50]In a further letter, of 8 January 2013, Mr Fletcher warned Mr Tongue that he would have no option but to instruct counsel to commence Court proceedings if he did not hear from Mr Tongue within a fortnight.[51]On 6 February 2013, at the RSPCA’s behest, Mr Blayney inspected Lower Farm and prepared a report which Chief Inspector Hopgood passed on to Mr Tongue. Mr Blayney’s conclusion, in essence, was that the farm could without all that much work be made suitable to take cattle from Phepson Manor. When giving evidence, Mr Tongue said that he had been in the process of preparing Lower Farm to receive cattle but that the works had not been completed and remained unfinished in October 2013, when Chief Inspector Hopgood revisited the farm.[52]On 15 February 2013, Chief Inspector Hopgood met Mr Tongue at Lower Farm. Chief Inspector Hopgood’s notebook entry for the meeting states:
“Mr Tongue does not want Mr Newitt (vet) to be the vet TB testing cattle owned by him, Mr Tongue has requested any other independent vet agreed by the RSPCA. Mr Tongue is unhappy that TB testing has been conducted by Mr Newitt & he has only just been made aware.”
Underneath this entry, there is to be found Mr Tongue’s signature. Chief Inspector Hopgood said in evidence that he believed that, in asking Mr Tongue to sign his notebook, he would have been showing him that he was taking his wishes seriously.[53]Mr Tongue was adjudged bankrupt on 30 May 2013. The petition was based on indebtedness of £24,000 to Mr Tongue’s former accountants, H F Pinfield & Co. Mr Timothy Heaselgrave, the second respondent, was appointed as Mr Tongue’s trustee in bankruptcy (“the Trustee”) on 11 June 2013.[54]On 22 November 2013, the RSPCA submitted a proof of debt in which it claimed to be owed £649,829.07. This figure principally comprised sums totalling £629,439.57 that Mr Smith-Maxwell had invoiced in accordance with his agreement with the RSPCA.[55]Early in 2014, those of the cattle at Phepson Manor as had come from Emmadale Farm were slaughtered with the consent of the Trustee. Arrangements were made for their progeny to be TB-tested before going to market. In June 2014, however, the validity of the identification of the cattle at Phepson Manor was called into question when a passport marked “Dead” was discovered in the office of Mr Williams (who, sadly, had died) even though the animal with the relevant number was still alive. The difficulties were compounded by the fact that Mr Smith-Maxwell had lost his records when his car was broken into. The upshot was that a notice was issued prohibiting the progeny from being moved except for slaughter and their use in the food chain. The Trustee therefore authorised the slaughter of the remaining animals.[56]On 23 November 2015, the Trustee and the RSPCA reached agreement on how the latter’s proof of debt should be calculated. In the light of that agreement, the Trustee gave Mr Tongue notice in February 2016 that he was prepared to accept the RSPCA’s claim on the following basis: Care costs up to the date of the bankruptcy order £368,478.34 Veterinary fees £257.99 VAT on veterinary fees £51.60 Less progeny valuation (£17,400.00) £351,387.93 Post-bankruptcy care costs £71,946.00 £423,333.93[57]The present proceedings were issued in the County Court at Worcester on 4 March 2016 and subsequently transferred to the High Court. By them, Mr Tongue challenges the Trustee’s decision to admit a proof of debt from the RSPCA. The question to which the application gives rise is whether there was indeed a debt owed to the RSPCA by Mr Tongue. The RSPCA contends, and Mr Tongue does not dispute, that the burden of proof lies on him.

The RSPCA’s case

[58]The RSPCA advances a case based on the law of bailment. It contends that a relationship of bailment arose between it and Mr Tongue when the latter agreed to let it “enter land at Emmadale to care for (f[ood]/w[ater]/vet)” the cattle there; that, as a result, it came to owe to Mr Tongue a duty to take care in respect of the preservation of the cattle; that it had a correlative right to recover from Mr Tongue expenses incurred in fulfilment of that duty; and that the £423,333.93 admitted as a debt by the Trustee represents such expenses.[59]One of the authorities that Mr Ali Tabari, who appeared for the RSPCA, cited in support of these submissions was the decision of the House of Lords in China Pacific SA v Food Corporation of India (The Winson) [1982] AC 939. There, a vessel chartered to carry wheat to Bombay stranded on a reef. The master having properly entered into a salvage agreement on behalf of the cargo owner, salvors took some of the wheat to Manila, where it was off-loaded and stored at their expense. The question which fell to be decided by the House of Lords was whether the salvors were entitled to reimbursement of the costs they had incurred up to the point the shipowner gave notice of abandonment of the voyage (from which stage the cargo owner accepted liability).[60]Lord Diplock, with whom Lord Keith, Lord Roskill and Lord Brandon agreed, explained that the salvors were bailees of the cargo owner. Where, he said (at 959), cargo is off-loaded:
“the direct relationship of bailor and bailee is created between cargo owner and salvor as soon as the cargo is loaded on vessels provided by the salvor to convey it to a place of safety; and all the mutual rights and duties attaching to that relationship at common law apply, save in so far as any of them are inconsistent with the express terms of the Lloyd’s open agreement”
. Assuming, as was common ground between the parties, that the salvage services which the salvors had contracted to render came to an end when the wheat arrived in Manila, “the legal relationship of bailor and bailee between cargo owner and salvors nevertheless continued to subsist until possession of the wheat was accepted by the cargo owner from the depositaries who had been the salvors’ sub-bailees”:
“the bailment which up to the conclusion of the salvage services had been a bailment for valuable consideration became a gratuitous bailment” (see 960). So long, Lord Diplock said (at 960), as that relationship of bailor and bailee continued to subsist: “the salvors, under the ordinary principles of the law of bailment too well known and too well-established to call for any citation of authority, owed a duty of care to the cargo owner to take such measures to preserve the salved wheat from deterioration by exposure to the elements as a man of ordinary prudence would take for the preservation of his own property. For any breach of such duty the bailee is liable to his bailor in damages for any diminution in value of the goods consequent upon his failure to take such measures; and if he fulfils that duty he has, in my view, a correlative right to charge the owner of the goods with the expenses reasonably incurred in doing so”
. That principle, Lord Diplock concluded, applied in the case before him. He observed (at 961):
“It is, of course, true that in English law a mere stranger cannot compel an owner of goods to pay for a benefit bestowed upon him against his will; but this latter principle does not apply where there is a pre-existing legal relationship between the owner of the goods and the bestower of the benefit, such as that of bailor and bailee, which imposes upon the bestower of the benefit a legal duty of care in respect of the preservation of the goods that is owed by him to their owner.”
[61]The final judge, Lord Simon, while expressing himself in general agreement with Lord Diplock’s speech, gave a speech of his own in which he said (at 964) that “there is no general right of a bailee to be reimbursed expenses incurred in fulfilling his duty to safeguard bailed goods” but that such a right had arisen on the facts of the case before him. He explained (at 964):
“In my view the following circumstances in the instant appeal import a correlative obligation to reimburse expenses: (1) the contract of bailment was a commercial one; (2) it came to an end when the salved goods were brought to a place of safety, which, it has been the common assumption, was the entry into the port of Manila (though I must not be taken as necessarily endorsing this view); (3) the bailee then continued in possession as a gratuitous bailee; (4) he incurred reasonable expenses in safeguarding and preserving the goods, to the benefit of the bailor; (5) the bailor stood by, knowing that the bailee was so acting to his (the bailor's) benefit.”
[62]The other main authority on which Mr Tabari relied was ENE Kos 1 Ltd v Petroleo Brasileiro SA (No 2) (The Kos) [2012] 2 AC 164. In that case, the owners of a time-chartered vessel had lawfully withdrawn the vessel for non-payment of hire shortly after a parcel of cargo had been loaded. The charterers tried to persuade the owners to cancel the withdrawal, but ultimately made arrangements for the cargo to be discharged. In the meantime, the vessel was detained for 2.64 days.[63]The Supreme Court held that the owners were entitled to be paid for the service of the vessel during the 2.64 days and bunkers consumed during that period. It arrived at that conclusion by reference both to a provision in the charterparty and to the decision in The Winson. As to the latter, Lord Sumption (with whom the other Justices of the Supreme Court agreed in this respect) said (at paragraph 28):
“The circumstances which entitle the owners to recover in the present case correspond to those which were decisive in The Winson. They are (i) that the cargo was originally bailed to the owners under a contract which came to an end while the cargo was still in their possession, (ii) that as a matter of law their obligation to look after the cargo continued notwithstanding the termination of the charterparty, and (iii) that the only reasonable or practical option open to them once the charterparty had come to an end was to retain the cargo until it could be discharged at the port where the vessel was then located.”
[64]One of the cases which Lord Sumption mentioned in The Kos concerned an animal: Great Northern Railway Co v Swaffield (1874) LR 9 Ex 132, where the defendant had sent a horse by train to Sandy. When the horse arrived late at night, there was no one at the station to receive it on the defendant’s behalf so the station master sent it to a nearby livery stable for safe custody. The defendant having subsequently sought to insist on the horse being delivered to his farm free of expense, it remained at the stable for four months before the railway company unilaterally had the horse taken to the farm and claimed for the livery charges it had incurred. The Court of Exchequer ruled in favour of the railway company. Kelly CB said (at 136):
“[The railway company] had no choice, unless they would leave the horse at the station or in the high road to his own danger and the danger of other people, but to place him in the care of a livery stable keeper, and as they are bound by their implied contract with the livery stable keeper to satisfy his charges, a right arises in them against the defendant to be reimbursed those charges which they have incurred for his benefit.”
For his part, Pigott B said (at 137):
“Then what were the carriers to do? They were bound, from ordinary feelings of humanity, to keep the horse safely and feed him; and that became necessary in consequence of the defendant’s own conduct in refusing to receive the animal at the end of the journey according to his contract.”
A third judge, Pollock B, said (at 137-138):
“Now, in my opinion it was the duty of the plaintiffs, as carriers, although the transit of the horse was at an end, to take such reasonable care of the horse as a reasonable owner would take of his own goods; and if they had turned him out on the highway, or allowed him to go loose, they would have been in default.”
Pollock B went on (at 138):
“That the duty is imposed upon the carrier, I do not think any one has doubted; but if there were that duty without the correlative right, it would be a manifest injustice.”
[65]Mr Tabari also referred me to the law relating to agency of necessity, in relation to which he took me to chapter 4 of Bowstead & Reynolds on Agency, 20th ed.. The authors there draw a distinction between two categories of case. In the first of these, typified by the master of a ship, there is full agency, but there is a requirement that “[i]t must be impossible, or at any rate impracticable, for the agent to communicate with the principal” (Bowstead & Reynolds, at paragraph 4-005). Mr Tabari did not suggest that the present case falls within this category.[66]Bowstead & Reynolds’ second category derives, it is explained (at paragraph 4-003), from the person who accepts a bill of exchange for honour and succeeds to the rights of the holder against the person for whom he accepts. The category “involves situations where a person who acts for another in an emergency seeks only reimbursement or indemnity from the person benefited, or to defend himself in respect of what he has done in an action for breach of contract (if there is a contract) or in tort (usually conversion, which he might otherwise have committed by his dealing with property of the principal)” (Bowstead & Reynolds, at paragraph 4-006). The cases cited include both Great Northern Railway Co v Swaffield and The Winson.[67]Bowstead & Reynolds’ two categories echo an observation Lord Diplock made in The Winson. He said (at 958):
“Whether one person is entitled to act as agent of necessity for another person is relevant to the question whether circumstances exist which in law have the effect of conferring on him authority to create contractual rights and obligations between that other person and a third party that are directly enforceable by each against the other. It would, I think, be an aid to clarity of legal thinking if the use of the expression ‘agent of necessity’ were confined to contexts in which this was the question to be determined and not extended, as it often is, to cases where the only relevant question is whether a person who without obtaining instructions from the owner of goods incurs expense in taking steps that are reasonably necessary for their preservation is in law entitled to recover from the owner of the goods the reasonable expenses incurred by him in taking those steps.”
[68]In a somewhat similar vein, Bowstead & Reynolds observes of its second category that the cases “usually involve an inappropriate use of agency reasoning” (paragraph 4-006) and that “the analogy of agency is a mistaken one” (paragraph 4-010). The problems of this category should nowadays, the authors consider, “be considered against the background not of agency, but of a possible general principle of necessitous intervention within the law of restitution” (paragraph 4-006). They also explain (in paragraph 4-010) that “[i]f any wider principle in respect of necessitous intervention is to emerge from the cases in the second category, … creative development of a different order within the principles of restitution would be required” and that “the picture remains unclear and the case law is very limited indeed”.[69]In the circumstances, it is not surprising that Mr Tabari did not ultimately maintain that agency of necessity adds anything significant in the context of the present case. The focus of his submissions was on the bailment arguments.

The issues

[70]The issues raised by the RSPCA’s case can, I think, be conveniently discussed under the following headings: i) Bailment; ii) Right to reimbursement; iii) The significance of the move to Phepson Manor; iv) A new bailment; and v) Compromise. Bailment[71]Bailment depends on possession. In Ashby v Tolhurst [1937] 2 KB 242, Romer LJ said (at 255):
“in order that there shall be a bailment there must be a delivery by the bailor, that is to say, he must part with his possession of the chattel in question”
. Halsbury’s Laws of England, in a title of which Professor Norman Palmer was the consultant editor, puts the point in slightly more expansive terms as follows (at paragraph 101 of volume 4 (2011)):
“To constitute a bailment (which derives its name from the old French word bailler, to deliver or put into the hands of), the actual or constructive possession of a specific chattel must be vacated by its owner or possessor (the bailor), or his agent duly authorised for that purpose, in favour of another person (the bailee) in order that the latter may keep the same or perform some act in connection with it, for which such actual or constructive possession of the chattel is necessary, thereafter returning the identical subject matter in its original or an altered form.”
[72]Bailment typically stems from the mutual consent of bailor and bailee. Nowadays, however, it is widely accepted that bailment is capable of arising without any consent from the bailor. Sutcliffe v Chief Constable of West Yorkshire [1996] RTR 86 illustrates the point. In that case, the police were treated as bailees of a car that they seized and retained in exercise of their powers under sections 19 and 22 of PACE. In East West Corp v DKBS AF 1912 A/S [2003] EWCA Civ 83, [2003] QB 1509, Mance LJ said (at paragraph 24):
“it is now well established that the existence of claims in bailment does not depend on contract. What is fundamental is not contract, but the bailee’s consent. The duties of a bailee arise out of the voluntary assumption of possession of another’s goods in a manner analysed in Palmer on Bailment, 2nd ed (1991), pp 64-71, a work which contains much useful material. More recently, the Privy Council’s advice in The Pioneer Container [1994] 2 AC 324, approving Morris v C W Martin & Sons Ltd [1966] 1 QB 716, provides support at the highest level for the proposition that it is the voluntary taking of another’s goods into custody that constitutes the person taking such custody a bailee towards that other person (the owner): see [1994] 2 AC 324, especially at pp 341a and 324a-b, per Lord Goff of Chieveley.”
[73]In the present case, as I have said, the RSPCA’s case is that a relationship of bailment arose between it and Mr Tongue when the latter agreed to let it “enter land at Emmadale to care for (f[ood]/w[ater]/vet)” the cattle there. To my mind, however, there are two problems with that contention.[74]The first relates to whether an agreement such as that on which the RSPCA relies is apt to confer possession. “Most bailments are created or discharged upon premises occupied by the bailee and this fact, whilst not an essential feature of bailment, is clearly a strong pointer to a change in the bailor’s possession” (Palmer on Bailment, 3rd ed., at paragraph 5-001). Even where the relevant chattel is on land of the alleged bailee, there will not necessarily be a bailment: “the mere leaving or depositing of chattels upon land occupied by another, even with his knowledge or at his invitation, does not necessarily make the occupier a bailee” (Palmer on Bailment, 3rd, ed., at paragraph 5-001). In the present case, in contrast, the cattle were on land belonging to Mr Tongue (the alleged bailor), and he consented to the RSPCA going onto the land only for a limited purpose (viz. “to care for (f[ood]/w[ater]/vet)” the cattle). Were such an arrangement to involve a transfer of possession and, hence, bailment, it would seem that a neighbour whom I had asked to come round to my house to look after my cat while I was on holiday would be a bailee. Mr Tabari did not shrink from this and argued that there would indeed be a bailment in such a situation. In my view, however, the neighbour would not ordinarily acquire possession of the cat or become a bailee. Similarly, I do not consider that the consent that Mr Tongue gave the RSPCA via the prison chaplain can have given it possession of the cattle or given rise to a relationship of bailor and bailee.[75]The second point arises from the seizure of the cattle. Assuming that it was valid, the police must at that point have become bailees of the cattle (compare Sutcliffe v Chief Constable of West Yorkshire) and, having had them placed in its care, the RSPCA would in turn seem to have become a bailee for the police and held the cattle to their order. The consent that Mr Tongue gave later that day will have given the RSPCA due authority to go onto Emmadale Farm (though it was in fact already there), but it is hard to see that it can otherwise have changed much. The RSPCA will surely have continued to hold the cattle as a bailee for, and to the order of, the police. Mr Tongue had no power to release the RSPCA from its obligations to the police.[76]Would the position be different if the seizure was unlawful? I do not think so. It would remain the case that the police had entrusted the cattle to the RSPCA. Moreover, the traditional rule is that a bailee cannot dispute the bailor’s title. In Biddle v Bond (1865) 6 B&S 225, for example, Blackburn J observed (at 231):
“We do not question the general rule that one who has received property from another as his bailee or agent or servant must restore or account for that property to him from whom he received it; and we agree with what is said by my brother Martin in Cheesman v. Exall (6 Exch. 341, 346), that ‘there are numerous cases in connection with wharfs and docks, in which, if the party entrusted with the possession of property were not estopped from denying the title of the person from whom he received it, it would be difficult to transact commercial business.’”
The significance of the principle has been much reduced by section 8(1) of the Torts (Interference with Goods) Act 1977 (which entitles the defendant in an action for wrongful interference to show that a third party has a better right than the claimant as respects the interest claimed by the defendant), but I do not see that that provision should prevent a bailment being taken to have arisen as between the police and the RSPCA. In any event, it is no part of the RSPCA’s case that the seizure was other than lawful.[77]In all the circumstances, I have concluded that Mr Tongue’s agreement to let the RSPCA “enter land at Emmadale to care for (f[ood]/w[ater]/vet)” the cattle there did not give rise to bailment.

Right to reimbursement

[78]If, contrary to the view expressed in the previous paragraph, a relationship of bailor and bailee was created by Mr Tongue’s grant of consent to “enter land at Emmadale to care for (f[ood]/w[ater]/vet)”, will the RSPCA have become entitled to recoup from Mr Tongue costs incurred in caring for the cattle?[79]The RSPCA contends, of course, that the answer is “Yes”. That, according to the RSPCA, is apparent from The Winson and The Kos. As a bailee, the RSPCA owed Mr Tongue a duty of care and (so the RSPCA argues) had a “correlative right to charge the owner of the goods with the expenses reasonably incurred in doing so” (to quote from Lord Diplock in The Winson).[80]The present case differs, however, from The Winson and The Kos in more than one respect. First, the context in which Mr Tongue agreed to let the RSPCA care for his cattle was not obviously commercial. In both The Winson and The Kos, and also Great Northern Railway Co v Swaffield, there had been previous business dealings between the parties. The RSPCA, in contrast, had not previously had any contact with Mr Tongue, let alone a financial relationship, and it did not indicate to him in any way that it was expecting him to pay for anything. Secondly, the RSPCA, unlike the claimants in The Winson, The Kos and Great Northern Railway Co v Swaffield is a charity and, moreover, one whose aim is to improve the lives of animals. Undertaking the care of animals on a gratuitous basis would thus accord with its objects. In the circumstances, I do not think it would have been apparent to a reasonable man, or was in fact understood by Mr Tongue, that the RSPCA might seek to recover expenses it incurred.[81]On top of that, my impression is that the RSPCA did not itself initially have it in mind to seek any financial contribution from Mr Tongue. No evidence to that effect was given by any of the RSPCA witnesses. So far as I can see, furthermore, there was no mention of Mr Tongue paying anything in his correspondence with the RSPCA until 22 December 2006, when Mr Fletcher said that the RSPCA was “not in a position to provide private boarding for other people’s animals on a long term basis” and that “[o]ne alternative” would be for Mr Tongue to “meet this ongoing cost”. It was not until 21 November 2012 that Mr Fletcher suggested to Mr Tongue that he would agree that it was reasonable for him to “pay some or all of those costs of maintaining [his] cattle from the date they were seized and into the future”.[82]That the RSPCA’s subjective intentions might matter is suggested by Re Rhodes (1890) LR 44 Ch D 94, where a claim for the cost of necessaries supplied to a person of unsound mind failed. Lindley LJ said (at 107-108):
“Now, in order to raise an obligation to repay, the money must have been expended with the intention on the part of the person providing it that it should be repaid. I think that that intention is not only not proved, but is expressly negatived in the present case. I do not believe that the brother ever intended to constitute himself a creditor of his sister so as to render her estate liable to repay him. He was a kind and affectionate brother; but if he had had any such an intention, being a man of business, he would naturally have kept some kind of account between himself and his sister. There is no real ground for saying that he ever dreamt of repayment.”
[83]A degree of confirmation of the fact that the circumstances in which a bailment arises can bear on whether the bailee has a right to recoup his costs is perhaps to be found in what happened as between the police and the RSPCA. As I have said, a relationship of bailment would appear to have arisen between the two. There has never, however, been any suggestion that the RSPCA is entitled to recover any costs from the police and I should be very surprised if either party had ever envisaged such a possibility.[84]In all the circumstances, the question posed in paragraph 78 above is, in my view, to be answered in the negative. It seems to me that the RSPCA has no right to recover expenses from Mr Tongue even if it became a bailee for him. The Winson, The Kos and Great Northern Railway Co v Swaffield should not, in my view, be read as providing for a right of reimbursement in the very different circumstances of the present case.

The significance of the move to Phepson Manor

[85]Supposing that I am wrong thus far and that the RSPCA became a bailee for Mr Tongue and, hence, entitled to recover expenses from him, does that right extend to the costs of housing them at Phepson Manor?[86]Mr Tongue was insistent both at the hearing and at the time that the cattle should never have been moved to Phepson Manor. In, for example, his letter to Inspector Simpson of 15 October 2006, Mr Tongue said that his cows had been removed from Emmadale Farm without his permission and that he had asked for the matter to be reported to the police as an incident of cattle rustling. By 18 November, Mr Tongue was asserting to Mr Fletcher that he had never agreed to the cattle being removed, that the RSPCA had breached its agreement with him and that it no longer had consent to care for the cattle. In submissions, Mr Tongue suggested that the RSPCA had in effect sought to achieve what Neuberger J and the Court of Appeal had ruled that the Council could not do (see paragraphs 8 and 9 above).[87]Mr Tabari, in contrast, submitted both that the consent that Mr Tongue gave via the prison chaplain was wide enough to permit the RSPCA to take the cattle to Phepson Manor and that it in any event had no choice but to do so. With regard to the former point, Mr Tabari argued that the essence of the arrangement was that the RSPCA would care for the cattle and that there was no justification for importing a requirement that the care be provided in a particular location. As for the latter point, Mr Tabari contended that the cattle could not legally have been kept at Emmadale Farm having regard to section 1 of the 1911 Act (and. later, section 9 of the Animal Welfare Act 2006) and paragraphs 4-6, 11, 12, 28 and 29 of schedule 1 to the Welfare of Farmed Animals (England) Regulations 2000 (and, later, regulation 4 of the Welfare of Farmed Animals Regulations 2007). Section 1 of the 1911 Act made it an offence to cause an animal unnecessary suffering in various ways. The 2000 Regulations imposed on owners and keepers of animals a duty to take all reasonable steps to ensure that the animals were kept in conditions such that, among other things, they had a lying area which was well-drained or had well-maintained dry bedding, were the subject of veterinary advice where needed, were isolated in suitable accommodation when necessary if sick or injured, had accommodation which was not harmful and did not have sharp edges or protrusions likely to cause them injury and were not the subject of breeding or breeding procedures which would cause suffering or injury.[88]Mr Tabari relied in support of his submissions on the expert evidence given by Mr Martin. Mr Martin stated in paragraph 3.0.11 of his report:
“It is therefore clear that in July and August 2006 the farm was not in suitable condition to keep cattle of any sort as the farm was insecure and unsafe for the cattle. There was nowhere that the cattle could be housed over winter and the shelter on offer to them contained serious hazards on which they could become injured. In addition, any cattle kept on the land would be reliant on supplementary feeding to meet their dietary needs or they would effectively starve. If the cattle could not be taken off the pasture during the winter then the ground would suffer further severe damage which would delay the arrival of the spring grass and lessen the amount of grazing produced leading to further requirements for additional supplementary feed. The absence of any handling system would also make the provision of necessary and routine husbandry impossible on the farm.”
Mr Martin concluded:
“5.0.2 It is my expert opinion that Emmadale Farm was not in a fit state for the keeping of cattle in July and August 2006 and that furthermore due to the characteristics of these cattle the failings of Emmadale Farm are amplified. 5.0.3 It is my expert opinion that to have left these cattle at Emmadale Farm would have made it impossible to meet the welfare needs of the cattle, have exposed the people responsible for the cattle on a daily basis to an exceptionally high degree of risk of personal injury and would also have failed to protect the general public from the risk of personal injury from the cattle due to the high risk of straying. 5.0.4 Whilst it may be suggested that alterations could have been made to Emmadale Farm to reduce and remove the risks this would have required a considerable financial investment, have taken a lengthy period of time and it would have been exceptionally difficult to complete the required work in a safe manner whilst the cows remained on the farm. Furthermore, during these works the needs of the cattle, the people responsible for them and the general public would not have been able to be met.”
[89]Echoing this last paragraph, Mr Tabari said in his written closing submissions:
“The only conceivable way that [the RSPCA] could have kept the cattle on the Farm within the boundaries of the law was to carry out substantial renovations and alterations to the Farm. In real terms this was impossible: [Mr Tongue] had given no such consent, and any such works would have constituted trespass to goods, or even criminal damage.”
[90]In my view, however, the terms of Mr Tongue’s consent were not such as to authorise the RSPCA to move the cattle to Phepson Manor. Inspector Long’s notebook, which provides the best record of what Mr Tongue agreed to, states that he gave permission for the RSPCA “to enter land at Emmadale” to care for the cattle. The consent was thus a limited one. There is nothing to suggest that Mr Tongue said or did anything to indicate that the RSPCA could move the herd off Emmadale Farm or that he, Inspector Long or the prison chaplain had such a move in contemplation at the time. Mr Tabari argued that there is no sufficient justification for implying a restriction into the bailment, but there is no need to do so. Mr Tongue’s consent was confined to Emmadale Farm by its express terms.[91]Mr Tabari also submitted that a term limiting the bailment to Emmadale Farm would produce an irreconcilable clash with the duty of care of a bailee recognised in The Winson. I do not accept this, however. Any duty of care that the RSPCA owed Mr Tongue as bailee must have been shaped by what it had been authorised to do. The consent that Mr Tongue gave cannot have imposed on the RSPCA any duty to remove the cattle from Emmadale Farm if, according to its terms, it did not permit such a move.[92]Further, I have not been persuaded that the RSPCA was legally obliged to take the herd away from Emmadale Farm when it did. I am sure that the RSPCA acted with the best of intentions and that it was much easier to provide the cattle with proper care at Phepson Manor than at Emmadale Farm. On the other hand, it was clearly possible to ensure that the cattle had adequate food and water without removing them from Emmadale Farm; in fact, they already had an improved “rumen fill” by 14 August. Again, provision of a “well-drained” lying area would not appear to have been an immediate problem in such a hot summer, and the public rights of way had been closed (albeit, as Mr Martin pointed out, that people sometimes ignore signs). Nor is it evident that lack of consent from Mr Tongue rendered it impossible to effect any necessary works at Emmadale Farm. Aside from the fact that the RSPCA did in fact erect some fencing, the simple fact is that Mr Tongue was never consulted. During the hearing, Mr Tongue himself observed that the RSPCA could have come to him in prison and said that the fences needed to be repaired or renewed, but that that did not happen. The RSPCA cannot, as it seems to me, have been entitled to proceed on the basis that absence of consent to works from Mr Tongue left it with no legal alternative but to move the cattle when he had not even been asked to consent. It is doubtless the case that the RSPCA was not well-placed to provide appropriate people to care for the cattle at Emmadale Farm and that substantial works would have cost significant sums, but accommodating the herd at Phepson Manor was also expensive and, in any event, such matters go more to practicality than legal necessity. Perhaps there might have come a time when it was apparent that the cattle could not lawfully stay at Emmadale Farm, but I do not think that that was the case by 22 August 2006, when they were in fact taken to Phepson Manor.[93]In the circumstances, the move to Phepson Manor can have been authorised, if at all, only because the cattle had been placed in the RSPCA’s care by the police. I do not think that it can be justified by reference to any bailment which the consent that Mr Tongue had given the RSPCA may have created. To the contrary, the shift to Phepson Manor would, if not sanctioned by the police seizure, appear to have involved a conversion of the cattle by the RSPCA, especially since the RSPCA was effectively disabling itself from ever returning the herd to Emmadale Farm or an agent of Mr Tongue. The cattle had been given a one-way licence and would not be allowed to leave Phepson Manor unless slaughtered.[94]That being so, it seems to me that, even if the RSPCA became a bailee for Mr Tongue as a result of the consent he gave on 1 August 2006 and, hence, potentially entitled to recover expenses from him, the right will not have extended to the costs of housing the cattle at Phepson Manor. A new

Bailment

[95]Mr Tabari submitted that a new or varied bailment arose between Mr Tongue and the RSPCA following Mr Fletcher’s letter of 29 December 2006 to Mr Tongue (as to which, see paragraph 39 above). This, he said, put forward two possibilities: slaughtering the cattle or Mr Tongue meeting the cost of boarding the animals. Mr Tongue, Mr Tabari argued, accepted the proposals by his conduct: he was adamant that the cattle should not be slaughtered, but not that they should not be retained by the RSPCA and provided no alternative.[96]In my view, however, it is impossible to discern or infer any acceptance on Mr Tongue’s part. In fact, he said in terms in response to Mr Fletcher, not only that the RSPCA was not to kill his cattle, but that it “should return [his] property”. The reality was that that was not an option: the RSPCA could not lawfully take the herd back to Emmadale Farm. That, though, was not Mr Tongue’s doing, and he cannot be said to have chosen for the RSPCA to keep the cattle at Phepson Manor. Pollock CB remarked in Taylor v Laird (1856) 25 LJ Ex 329 (at 332):
“One cleans another’s shoes; what can the other do but put them on?”
Mr Tongue was in a comparable position.[97]I ought to deal specifically with the suggestion that Mr Tongue could have produced passports for some or all of the cattle and so facilitated a move off Phepson Manor. Mr Tabari relied in this respect on evidence to the effect that some passports were found at Pumphouse Farm. Mr Tongue said that the discovery was not made until after the cattle had been slaughtered. My own view is that any such discovery is anyway unlikely to have included appropriate passports for the herd with which I am concerned. The chances are, I think, that such passports did not exist or, at least, were not in the Tongues’ possession.[98]In short, it seems to me that no bailment came into being after Mr Fletcher’s letter of 29 December 2006.

Compromise

[99]It is Mr Tongue’s case that a binding compromise was concluded at the meeting at Pumphouse Farm on 14 September 2012 (as to which, see paragraph 47 above). His points of claim (which were drafted for him professionally) state: “c. … Mr Hopgood offered to compromise the claim for charges (in full and final settlement) (‘the Offer’) if the Applicant [i.e. Mr Tongue] agreed:- i. that the Cattle without passports should be slaughtered …; and ii. to take possession of the cattle with passports and progeny (bred from the Cattle) by nominating a stockman (not himself). d. Mr Hopgood confirmed that if the Applicant agreed to c (i) and (ii) there would be ‘no money to pay’. e. the Applicant accepted the Offer using words, the gist of which was ‘okay – do that then’.” i. that the Cattle without passports should be slaughtered …; and ii. to take possession of the cattle with passports and progeny (bred from the Cattle) by nominating a stockman (not himself).[100]Mr Tongue and Ms Green (who was also at the meeting) both gave evidence to the effect that they understood an agreement to have been reached. In contrast, Chief Inspector Hopgood maintained that, while he explained a number of options, no agreement was concluded. In fact, he said, he would not himself have had authority to write off the RSPCA’s claim against Mr Tongue and, moreover, Mr Tongue had yet to make a farm fit to receive the cattle.[101]On balance, I agree with the RSPCA that there was no binding agreement. Whether or not the Tongues and Ms Green, subjectively, considered at the time that an agreement had been made, I do not think that, viewed objectively, that was the case. That conclusion is supported by Chief Inspector Hopgood’s notebook entry and the subsequent correspondence. Given, however, the views I have expressed earlier in this judgment, the point does not matter.

Conclusion

[102]In my view, Mr Tongue does not owe any money to the RSPCA and the Trustee’s decision to admit a proof from it should therefore be reversed.