Triplot & Anor v Whetter [2011] EWHC 931 (QB)

[2011] EWHC 931 (QB)Case No HQ09X04574
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30 September 2011
Before
HH JUDGE ANTHONY THORNTON QC
Between
Mme Joelle TriplotClaimantsMme Mercedes DestineClaimantMs Joan WhetterDefendant
Mr Jonathan Bellamy (instructed by Edmondson Hall, 25 Exeter Road, Newmarket, Suffolk, CB8 8AR) for ClaimantsThe Defendant represented herself with the assistance of Ms Prudencia Azah (McKenzie Friend)Hearing Hearing dates: 12, 13 and 14 January, 1 April and 15 August 2011
JUDGMENT

HH Judge Anthony Thornton QC:

[1]The claimants, Mme Triplot and Mme Destine, are Belgian nationals who live near Liege. The action concerns three show jumpers, two owned by Mme Triplot and one by Mme Destine. These three horses were, they allege, stolen from Mme Triplot’s stables and riding school which is located in Chanxhe near to where she lives. Two of Mme Triplot’s other horses and two unnamed foals that were with her on livery were stolen at the same time. This theft occurred during the night of the 27/28 December 2008 and, some days later, on about 12 January 2009, the three horses came into the possession of the defendant, Ms Whetter. She owns a large number of horses which she keeps on her farm, The Lont, Draycott-in-the-Clay, Derbyshire.[2]Mme Triplot and Mme Destine contend that M Jacobs had no title or authority to sell the horses to Ms Whetter and that they are entitled to the possession of, and remain owners of, their respective horses. Thus, they claim their return from Ms Whetter who currently has possession of them and, pursuant to an undertaken given to the High Court on 12 October 2009, is required to look after them with reasonable skill and care whilst they remain in her possession.[3]Ms Whetter contends that she acquired the three horses in dispute as part of a lawful barter transaction from M Guy Jacobs, a Belgian national and that he either owned the horses or had the owner’s authority to sell them. She also contends that these are different horses to the three horses which were stolen from Mme Triplot’s yard and that, in any event, M Jacobs had good title or their owner’s permission to barter them to her. Alternatively, she alleges that the claimants are parties to a fraud whereby they procured M Jacobs to barter these horses to her intending to re-take them dishonestly by arranging for the Belgian police to liaise with the English police to visit her premises and seize back the horses using false documentation to establish their erroneous title to them.[4]M Guy Jacobs is a horse breeder, dealer and show jumper. As soon as Mme Triplot reported the theft of her horses within hours of discovering their loss, he was suspected by the Belgian police off being the principal thief of these horses. He was interviewed by the police on 12 March 2009 as a suspect and the evidence of the Belgian police at the trial is that he would, at some stage in the future, be charged and tried for their theft.[5]At the trial, the claimants were represented by counsel, Mr Jonathan Bellamy. Both claimants gave written and oral evidence and, additionally, written and oral evidence was given by M Michel Jennekens, Chief Inspector of the Zone de Police. He led the police investigations into the theft of the seven horses from Mme Triplot’s yard. He produced copies of a number of police documents that had come into being during the police investigations and he came to court voluntarily as a lay witness. Ms Whetter, who has represented herself throughout these proceedings gave written and oral evidence on her own behalf. The claimants adduced written evidence from Mr CWS Lane, an Equestrian Valuer, and Ms Whetter written evidence from Mr Daniel Delsart, a showjumper. These witnesses gave expert evidence as to the value of the horses. On behalf of the claimant, it was contended that this evidence was irrelevant and, in any event, Mr Delsart’s evidence should be excluded because Mr Delsart has no relevant expertise or experience that qualified him to give expert equestrian valuation evidence and, further because his report was highly improperly influenced by Ms Whetter.[6]The manner in which Ms Whetter represented herself created considerable difficulties for the fair and efficient conduct of the trial. Her defence, as it has evolved during and after the hearing, involved her in making very serious allegations of fraud, dishonesty and collusion against both claimants and M Jennekens. She maintained this case in the absence of any significant documentary evidence to support it and without having put it to any of them when she cross-examined them. Furthermore, her cross-examination generally was in large measure irrelevant, incomprehensible and based on assertions which were not supported by any evidence adduced at the trial. This method of conducting the trial culminated in her giving a short and incoherent closing speech.[7]Following the handing down of the draft judgment, Ms Whetter applied for permission to appeal on the ground that my findings were against the weight of the evidence and were perverse and that there should be a retrial because much of her case had been ignored in my judgment. In order to ensure that I had done full justice to her case, I directed that my judgment should remain as a draft judgment and that Ms Whetter should send to the court a list of each finding that she contended was against the weight of the evidence or perverse and each finding she contended should have been made but had not been addressed. This she did in an eighteen page document.[8]This document is, in effect, an application for further findings and reasons that she contended should have been, but were not, dealt with in the judgment. I have addressed this application in this revised and perfected version of my judgment.

The Law

[9]The claimants’ claim is for the delivery up of the three horses and is based on their claim that Ms Whetter has converted the horses. Conversion occurs when a person who is in possession of property refuses to return that property to another who is entitled to possession of that property when the person who is entitled to possession demands its return. It is important to note that it is not necessary for the person seeking the return of property to prove that she owns the property, that it has been stolen or that a thief has been identified or convicted of the theft of the property. Thus, a claiming party need not own the property being claimed, she merely has to prove that she was lawfully in possession of it at the moment of conversion, whether as owner, bailee or in any other way. In this case, the claimants claim that the horses were lawfully in the possession of Ms Triplot during the night of 27/28 December 2008, that they were stolen and that they came into Ms Whetter’s possession from someone who had no entitlement to sell or barter them or to hand them over to her.[10]The claimants seek to show that they are entitled to the return of these horses by proving:(1) The three horses currently in Ms Whetter’s possession were in Ms Triplot’s possession immediately before they disappeared from her stables during the night in question;(2) The three horses were removed from the stables unlawfully and without Ms Whetter’s authority;(3) The three horses were bartered to Ms Whetter by M Jacobs who was not lawfully in possession of them and had not acquired possession from anyone who was themselves lawfully in possession of them.

Background

[11]Mme Triplot is principally involved in part-owning and helping to run a restaurant and she also has a passion for horses. She owns a horse yard and stables where she keeps her horses and she rents some of her horse boxes to other people including Mme Destine who keep their horses in the boxes that they rent. Her passion has been fostered by her son, M Jonathan Leonard, who is an active competitor in Show Jumping and many of her horses are bought for, and used by, M Leonard. The two horses she claims from Ms Whetter are called Poutache La Mouche usually known as Mouche, a bay mare, and Liago, a grey gelding. Mme Destine is also Belgian and lives in Wareme. She is a friend of Mme Triplot and she stabled her dark bay stallion, Caretanne, at Mme Triplot’s stables. This stallion is the subject-matter of her claim against Ms Whetter.[12]M Guy Jacobs is a horse dealer and trainer of both horses and riders. The evidence suggested that he leads a somewhat shadowy existence and was thought by all the witnesses in the trial, including Ms Whetter, to have a criminal background. He kept some of the horses then in his possession at Mme Triplot’s stables but he appears to have spent long periods of time in England dealing in horses. He was known to Ms Whetter and she had undertaken at least one horse deal with him prior to December 2008. According to M Jennekens’ evidence, M Jacobs is still facing criminal proceedings in Belgium and will in the future be charged with stealing the seven horses from Mme Triplot’s yard which include the three in issue. As I have already stated, it is also he who bartered the same three horses to Ms Whetter in early January 2009.[13]Ms Whetter now accepts that M Jacobs has defrauded her in relation to a separate transaction in which she bought or bartered a horse from him which he subsequently stole from her. This transaction took place at the same time as the barter transaction of the three horses and M Jacobs stole back that horse a few days later and took it to Belgium with him. That horse was impounded by the Belgian police who still retain it as evidence of its theft.[14]Ms Whetter also put forward this positive averment in her original defence:
“All three of the horses were brought to England by a horse dealer/agent named Guy Jacobs, who I believe had the right to sell them to me. This man is a longstanding personal friend of the claimants. Although the claimants know that Guy Jacobs brought the horses from Belgium to England and sold them. They have not accused him of stealing these horses from them. He supplied me with passports when he sold the horses to me in Jan 2009. Guy Jacobs returned to Belgium in Feb 2009. When he left he stole my passports from the yard where they were filed, ready to be sent to the British Showjumping Association for registration. When the passports were shown to the Derbyshire Police by the claimants in an attempt to get possession of the horses a few weeks after his return, I knew that they could only have been obtained from the Belgium dealer, Guy Jacobs. This is a scam he uses in liaison with his associates, the claimants, to prey on vulnerable people to whom he sold the horses, and intimidate them so they will hand the horses over, so that he can sell them again with different passports and obtain payment again and possibly yet again and so it goes on.”
[15]The only evidence adduced by Ms Whetter to establish this criminal conspiracy was her own evidence. This was almost entirely supposition and personal belief. The only direct evidence she adduced was her interpretation of the three horse passports produced by the claimants, that although they were held out as passports for the three horses in issue, the horses described in each were different from the horses it was suggested that they were the passports of. She produced no witness who could assist in substantiating any part of this supposed conspiracy, and she never suggested to M Jennekens in cross-examination that he had been duped by the claimants into considering M Jacobs to be a principal suspect for the theft of the horses or even to be a collaborator in the claimants’ criminal conspiracy that she was alleging took place. Ms Whetter’s evidence also failed to explain why the claimants reported the loss of their horse within hours of discovering the theft and why they have consistently from that moment implicated M Jacobs as being an instrumental figure in arranging that theft when he was, as she contends, a co-conspirator with both claimants.[16]The claimants’ evidence to prove their entitlement to the return of the horses is based on five separate strands. They firstly adduced evidence that Mouche and Liago had been bought by M Triplot and Caratanne by M Destine. They secondly adduced evidence that showed that the loss had been immediately reported to the Belgian Police and of the investigations undertaken by M Jennekens that led to M Jacobs being and remaining the prime suspect for the theft of these horses. They then produced evidence, in the form of DNA sampling and of the numbers stored in the horse chips carried by the horses which linked the horses directly to the horses of the same name that they had owned and stabled and which had disappeared on the night in question. They finally adduced identification evidence from those who had an intimate knowledge of the three horses. The claimants also gave direct evidence in their answers in response to Ms Whetter’s diffuse and at times incoherent questions which sought to put to them her suspicions and conjectures as to the dishonesty that she was contending that they and M Jacobs had perpetrated.

Basis of claimants’ claims

[17]M Triplot claims for the delivery up of two horses that she claims to own and which are in Ms Triplot’s possession. The first, called Mouche, is described as a bay mare, born on 23 March 1999 with a unique equine number 056098100266930 with these identifying features: white socks on all legs except her right front leg and a white star on her forehead. This horse was bought by M Triplot on 1 September 2004 from M Jacobs with a second horse. The consideration for Mouche was €7,260, being the settlement of a debt for outstanding livery fees that were due to her from M Jacobs on that date. The sale took place in her stables and is evidenced by a document signed by both parties.[18]The second, called Liago, is considered by M Triplot to be jointly owned by M Triplot and her son, M Leonard. This is a family arrangement since, in law, M Triplot acquired the horse herself. Moreover, she has always looked after this horse and stabled it so that she remains, in law, its sole owner. It is described as a dappled grey holsteiner warm blood gelding, born on 2 July 2003 with a unique equine number 972000000874378 with these identifying features: a grey mane and whitetail and two darker grey marks over his left eye, a pink mark over his lip and a number 32 on his left hind quarters. This horse was bought by Ms Triplot in her sole name from M Laurent Lamoussière for €30,000 at the same time as she bought a second horse, Oldenburger, for €10,000. This purchase is evidenced by a written contract dated 30 October 2008.[19]The third, called Caretenne, is described as a dark bay zangersheide stallion with a unique equine life number of 985120030847108 with these identifying features: a whirl to the left of the median on his forehead at the upper eye level, a feathered whirl on the left hand crest of his neck and a feathered whirl on the right hand crest of his neck with a few white hairs, a snip just above his nose and a white sock a third up the canon bone on the right fore and right fore ermine (bay) and also a left hind white to his fetlock and left hind ermine (bay). Mme Destin bought this horse from its original owner on 27 March 2006 for €30,000.[20]It is of considerable significance that when M Triplot reported the theft of her horses to the Belgian police on 28 December 2008, she provided to the police the horse passports that were still in her possession and also their equine life numbers. This is verified by the documents provided by the Belgian police and by the evidence of M Jennekens. These numbers are set out in a microchip embedded in each horse. The three numbers set out above were provided to the police are the same three numbers as are to be found in the chips of the three horses now claimed by the claimants that are currently in Ms Whetter’s possession. Evidence and Findings (1). Acquisition and verification[21]Mouche. Mme Triplot produced an original receipt dated 1 September 2004 signed by her in her maiden name of J. Leonard as buyer and M Jacobs as seller. The receipt records that M Jacobs was selling Mme Triplot two horses, one of which was a mare with an identification no 410975199 and a microchip no 056098100266930 for which the sale price was for €7,260. The purchase price was calculated by reference to one year’s outstanding rent for stable hire which was, in consequence, discharged.[22]Two original documents were produced for this horse. The first was a registration certificate. The identification no of the registration certificate is the same as the identification number shown on the invoice. There is pasted onto the front page of the identification certificate a slip which contains the same microchip number as that set out on the invoice. The identification number does not contain Mouche’s name. It was obtained in 2006 and it contains a sketch with inserted markings placed there by a vet which correspond to markings on the horse. The vet has signed and authenticated his signature and has dated his signature as 7 March 2006. The document also provides a genealogical tree showing the horse’s pedigree. The document was obtained at that time to enable the horse to be taken to international showjumping competitions and it records that there is an original birth certificate for the horse dated 17 March 2003. The horse now claimed by Mme Triplot in Ms Whetter’s possession has similar markings to that shown on the sketch and the same microchip number. Furthermore, the DNA analysis has matched this horse’s DNA with that of a horse called Pronto, thereby verifying that Pronto sired the horse described in the registration document. The registration document also contains the same information, namely that Pronto sired this horse. Thus, the DNA analysis undertaken recently confirms that the registration document is correct in showing Pronto as having sired Mouche and that the horse in Ms Whetter’s possession was the same horse as that acquired by Mme Triplot on 1 September 2004.[23]The identification is confirmed by the original FEI passport also produced by Mme Triplot. This is also dated 7 March 2006 and is in Mouche’s name. It also contains a slip with the same microchip printed on it and the same markings recorded on the same sketch with further descriptive details written in French and all authenticated and verified by the same vet as verified the details in the registration certificate.[24]Liago. As already set out above, this horse was bought by Ms Triplot in her sole name from M Laurent Lamoussière for €30,000 at the same time as she bought a second horse, Oldenburger, for €10,000. This purchase is evidenced by a written contract dated 30 October 2008. The DNA test that was carried out on a sample from Liago which was compared with DNA from Liago’s sire obtained from the Holsteiner Society stud book showed that Liago was indeed sired by that horse and that the horse in Ms Whetter’s possession was the same horse as that bought from M Lamoussière.[25]Caretanne. Mme Destin produced Caretanne’s original Euro Passport. This showed the horse’s name, original owner from whom Mme Destin bought the horse on 27 March 2006 for €30,000. Mme Destin produced the original receipt. The microchip number recorded on the slip attached to the passport is the same number as that embedded in the horse. For Caretanne, a DNA test was carried out on a sample taken from the horse when in Ms Whetter’s custody by a testing laboratory in Belgium who had previously, prior to the theft, DNA tested Mme Destin’s horse. That testing laboratory certified that the DNA/blood profile of each test were identical, thereby confirming that the same horse had been tested on both occasions and that the horse in Ms Whetter’s possession was the same horse as that bought by Mme Destine on 27 March 2006..[26]Atlet. A fourth horse, Atlet, owned by Mme Triplot was found when the stables of the third party where Ms Whetter had located that horse were visited by Mme Triplot accompanied by Derbyshire Police Officers. The stable owner had, so she informed the police officers, bought that horse from Ms Whetter and she has since permitted it to be taken back to Belgium, being satisfied that Mme Triplot was the legal owner of the horse. That horse corresponded to details in its passport including the chip number and description and a DNA sample, when tested showed that the horse was Atlet.[27]Polo. A firth horse,Polo was bought by Mme Triplot from M Jacobs for €14,500. Mme Triplot paid for Polo partly in cash and partly by exchanging a horse called Landetto. Mme Triplot produced the original bill of sale recording the sale of Landetto to M Jacobs. Polo’s papers have been kept by the Belgian Police to await the trial of M Jacobs and were not available. However, a copy of an email dated 17 September 2009 that was sent by M Jennekens to the British Showjumping Association. This provided the chip numbers of four horses he was seeking to trace, three of those four being the three now in issue and the fourth being Polo’s chip number. The chip number assigned to Polo by M Jennekens, which he had obtained from Polo’s papers then in his possession, is the same chip number as Polo, the horse was given originally. In fact, Polo has never been found but this incident provides further evidence that all five horses were stolen from Mme Triplot and have been the subject of genuine police investigations ever since. (2). Belgian police investigations[28]M Jennekens confirmed that Mme Triplot had reported the theft of the three horses and the others stolen at the same time, the day after the theft was reported to have occurred and it was shown that Mme Triplot had provided the police with the horses’ microchip numbers at the same time. M Jennekens had only met Mme Triplot on two occasions, one when he had visited her stables in about 2006 when investigating previous suspicions about M Jacobs’ horsedealing activities and once when he arranged a confrontation between M Triplot and M Jacobs, an occasion on which he also subsequently interviewed Ms Whetter who had travelled to Belgium to assist the police with their enquiries. M Jennekens explained that when he visited the stables in 2006, M Triplot was not involved in any way with his enquiries but he had considerable suspicion about the horses and horsedealings of M Jacobs. He photographed all the horses in the stables and took a full inventory, including those belonging to M Triplot. He had her permission to do this. He had then checked his files when given the task of investigating the theft of serve horses from M Triplot’s stables and he found a photograph of Mouche there and her name in the inventory. That horse was the only one of the seven stolen horses that M Triplot had in the stables on that earlier occasion. However, it was clear from his records that Mouche was being stabled there and was registered in M Triplot’s name in the documents he had used to make his inventory. (3). Expert evidence[29]The expert evidence was obtained after Ms Whetter had applied for this evidence. The person that Ms Whetter instructed to provide valuation evidence was not, when his CV was considered, someone who had any requisite qualification or experience to provide equine valuations. Moreover, when Ms Whetter was cross-examined, it emerged that Ms Whetter had played a significant role in drafting and producing the report. I therefore find that it is inadmissible and I pay it no further consideration.[30]The claimants’ expert, Mr CWS Lane, is an equestrian expert of considerable experience. He has over forty years’ experience with horses and has provided over 900 expert’s reports on all areas of equestrianism in the last ten years. Had his evidence of value been relevant, it would have been both credible and reliable. What is of relevance is his general evidence as to identification features of horses. He stated that it was clear from research that he was aware of and from his own experience that it was both difficult and very unreliable to age a horse by an inspection of their dental patterns. He was able to confirm the microchip numbers of the horses and that the horses he inspected were, in their markings, value and apparent age, the same as those described by the claimants. For the record, he valued two of the three horses I am concerned with as at December 2008 as follows: Mouche - €28,000 - €30,000 and Caretanne - €30,000 - €40,000. (4). Ms Whetter’s evidence[31]Ms Whetter gave evidence to the effect that she could tell from her own observations and her own examination of the horses’ teeth that the horses in her possession were not, certainly so far as Mouche was concerned, the same horses as described by the claimants. She remained convinced that the claimants were collaborating with the Belgian police to enable them to recover horses that she had legitimately acquired from M Jacobs. However, of particular significance was her evidence as to why she did not have the horses Belgian passports in her possession. Her explanation was that M Jacobs, when he arrived with the horses she was to barter, had a large collection of horse passports in his possession which he allowed her to see in a very cursory manner. However, he shuffled and displayed these passports rather in the manner of a card dealer performing a three-card trick and he never allowed her to inspect any of the passports or to retain them. Ms Whetter was unable to explain why she had allowed herself to be duped in this way. Equally crucially, Ms Whetter did not call an equestrian expert to give evidence of the respects in which it could be clearly established that the physical characteristics of the horses differed from those described in the documents and she was unable to provide any explanation as to why she was correct in asserting that, notwithstanding the chip, DNA and documentary evidence, “her horses” were not the same as those shown to be owned by Mme Triplot or Mme Destine. Furthermore, she failed to put her suspicions about the Belgian police to M Jannekens and her suspicions were effectively destroyed by the evidence, which I accept, that M Jennekens had only met Mme Triplot on two occasions and that Mme Triplot had reported the theft within twenty-four hours of it occurring with evidence of their identity which conformed to the evidence taken from the horses in Ms Whetter’s possession. (5). Ms Whetter’s case[32]Finally, I will address Ms Whetter’s arguments which were to the general effect that the claimants have not proved that they are entitled to the return of the three horses.[33]Ms Whetter asserted on a number of occasions that it was necessary for the claimants to prove that the horses had been stolen by M Jacobs and that could only be proved by proof that he had been convicted of their theft. These assertions are erroneous in fact and law. Firstly, the claimants only needed to establish that the horses left Mme Triplot’s possession without her authority. It was not necessary to prove that they had been stolen and even less necessary to prove that they had been stolen by a particular person and that that person had been convicted of the theft. In fact, the claimants did prove that the horses had been stolen and, on the balance of probabilities, that the thief was M Jacobs, no doubt in conjunction with others unknown.[34]Ms Whetter’s principal case was that the horse passports produced by the claimants did not describe the horses in her possession, in terms of age and physical markings and that, in any event, these passports had been manufactured or doctored, in plain English had been forged. However, Ms Whetter produced no expert evidence of identity, age or forgery and, in any case, was unable to shake the much more reliable DNA, chip numbers, documentary and police evidence which remained unshaken even if Ms Whetter had succeeded in making good her points about the unreliability of the passport evidence.[35]Finally, Ms Whetter asserted that the findings I have made undermined the earlier and binding findings of Judge Seymour in the interim summary judgment proceedings. In fact, Judge Seymour had given Ms Whetter leave to defend and had ordered that DNA evidence be obtained. Thus, he did not make any findings about ownership or identity, he merely found that the case should go to a full trial. (6). Discussion and summary of findings[36]I conclude that the claimants have proved beyond any reasonable doubt that, between them, they own, and were and remain entitled to possession of, the three horses.

Ms Whetter’s claims to purchase and for stabling and livery

[37]Ms Whetter has, as I find, most unreasonably retained possession of the three horses and most unreasonably has ignored the overwhelming evidence that her beliefs as to those horses are wrong. It is most unfortunate, from her point of view, that she did not instruct solicitors at an early stage who could have advised her as to her position. She certainly has the resources to instruct solicitors for that purpose but she has unreasonably believed in the correctness of her own view so firmly that she has never regarded it as necessary to obtain legal advice.[38]It follows from those findings that Ms Whetter’s claims to be entitled to buy the horses or for payment of compensation for their stabling and livery.

Conclusion

[22]The claimants are entitled to immediate delivery up of the three horses and Ms Whetter’s counterclaim for the right to buy the horses and for compensation for their stabling and livery is dismissed. HH Judge Anthony Thornton QC