A legal case involving a dog walker who was injured by cattle is a reminder to horse owners of their responsibilities when public footpaths lead through grazing fields.

A farmer was fined £5,260 having pleaded guilty to breaching the Health and Safety at Work Act in a prosecution by the Health and Safety Executive (HSE), when a dog walker was trampled by cattle on a public footpath.

Litigation solicitor Bridget Sanger of Clark Willmott LLP told H&H that although there is no HSE guidance for horses, the sample principles will apply and the onus is on the horse owner to assess the risk of turning out equines in areas accessed by the public.

“Landowners, including farmers and horse owners, have a legal duty to ensure the safety of anyone on their land, including walkers using public rights of way,” said Ms Sanger.

Equine lawyer Hannah Bradley, partner at Aria Grace Law CIC, told H&H that if a walker is injured by a horse on a public footpath, a claim for damages could be pursued. The court will apply a three-stage test in which the claimant must prove that the horse was likely to cause damage or if the horse caused damage, it was likely to be severe; that the damage related to a characteristic not normally found in horses and that the owner knew about the characteristic that caused the injury.

H&H asked Ms Bradley whether having warning signs at fields with public footpaths could be admitting liability and she said generally speaking, it is not possible to disclaim liability for personal injury.

“A sign that says something like ‘horse may bite’ could arguably create evidence that the owner had knowledge of a certain characteristic, but also it could be used to argue that the claimant assumed the risk,” she said.

Bulls over 10 months old cannot be kept in fields with public footpaths, but there is no restriction on stallions or colts – Ms Bradley said owners should keep in mind the knowledge test the court will apply.

“It is likely that certain behaviours which might cause injury could be said to be more prevalent – and known about – in a stallion or colt,” she said.

Ms Bradley added that owners should give consideration to public liability insurance for horses, taking into account their personal circumstances.

“It is imperative to make sure that the policy has sufficient coverage for the full possible loss caused by an injury caused by a horse. Claims relating to life-changing injuries can run into millions of pounds,” she said.

British Horse Society director of access Mark Weston reminded owners that if they keep horses in fields crossed by public rights of way they have a responsibility to help ensure the route remains safe for everyone.

“It’s vitally important to understand what type of right of way runs through your land to begin with – whether this is a footpath for pedestrian access only, or a bridleway or byway, or restricted byway or bridleway, which can mean cyclists and fellow equestrians can use the route. This helps you understand who can pass through your land and what you need to do to ensure they can do so safely,” he said.

“Owners have a responsibility to make sure that horses grazing in these fields are suitable to be around members of the public and not known to behave dangerously. Extra care should be taken when deciding which horses are turned out in these fields, and we strongly advise against keeping stallions in fields where equestrians have rights of way.

“It’s also important that gates, fencing and stiles along the route are well maintained so people can pass through safely and horses cannot escape if a gate is accidentally left open.”

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A divorce case involving a dog has raised a talking point about how courts view animals in marital disputes – and highlighted that including horses in pre-nuptial agreements could be beneficial.

In the case of FI v DO, a dispute between a husband and wife over who should retain ownership of the family dog, the judge ruled in favour of the wife, who had solely cared for the dog for 18 months.

Pets are considered by courts as chattels – as stated by the judge in this case – comparative to a personal possession like jewellery or a car. But the judge also said the wife’s evidence was “far more in tune with someone who has the welfare of the dog at heart”.

“Few truths in family law land harder than discovering that, in divorce, your horse ranks legally alongside the furniture. The family court makes no distinction between a horse and a motorbike; both are property to be valued, divided or sold like any other asset,” equine lawyer Hannah Bradley and family lawyer Karim Assaad of Aria Grace Law told H&H, adding that in FI v DO “the judge could not have been clearer”.

“He said: ‘It matters not who paid for the dog. The dog is a chattel.’ In the same paragraph, he was concerned that the case ‘veered into the realms of a Children Act application’, rejecting the idea that welfare or emotional factors could determine outcome.

“Some commentators have read that decision as a turning point, a gentle move towards animal welfare and emotional attachment. We do not agree. The judge’s later references to who had ‘principally looked after the dog’ and where the dog felt at home were not an appeal to sentiment, but a recognition of fact.

“The wife had cared for the dog for 18 months and so in deciding between the parties, the court favoured the wife and consequently declared that she owned the dog in law.”

Ms Bradley and Mr Assaad said that although the judgment was “written with empathy it did not alter the legal test” to be applied.

“Pets remain chattels and the test is ownership. The fate of pets in divorce proceedings are decided by evidence, not affection,” they said.

“The same principles that applied in the FI v DO case applies with equal force to horses. Upon divorce, a horse may be sold and the proceeds divided or retained by one party who buys out the other or if the court is invited, having heard evidence, to determine who should remain in possession of the horse, it will do so on the basis of principles of ownership and not on welfare assessments.”

Solicitor Jacqui Dark of Equine Law UK told H&H that in her view, FI v DO was an example where the judge used his discretion to decide to whom the dog was given as part of the divorce proceedings, when the wife had not solely bought the dog but had become his main carer.

“My view is that this is correct, as it is in the best interest of the dog and the courts are quite right to take his welfare into account,” said Mrs Dark.

“The same would happen with any other animal in divorce proceedings. So, for example, if a husband purchased a horse and the wife did the daily care, overseeing vets, riding and training etc, it is possible that the judge – where there is a dispute as to where the horse is left after divorce proceedings – could allow ownership of the horse to be with the wife as part of the divorce settlement.”

Mrs Dark added that with a high-value horse, one party could ask the court to order its sale, an option the court could consider.

“Ultimately, the court can consider welfare and this is an important factor to take into account. Vets/other professionals can be called on to give expert evidence if necessary,” she said.

“If there is a pre-nup, this may change things and you should seek advice from a family law specialist on this point.”

Legal director Jennifer Headon of Birketts told H&H that pets have been a “hot topic” in family law and believes that including animals in pre- and post-nuptial agreements can be useful.

“There’s no reason not to factor pets into these agreements. It’s an emotive topic for clients, and you can save yourself a lot of emotional and financial toll,” she said.

“It might include who would keep the horses post-separation – or how the expenses will be divided. Although pre-nuptial agreements are not legally binding, they are generally given significant weight by the court if they’re properly entered into.

“I would advise they are drawn up by a solicitor, and one of the factors taken into consideration is whether the parties have had independent legal advice.”

British Horse Society (BHS) director of horse care and welfare Gemma Stanford told H&H divorce and separation can be an incredibly difficult time, and “it’s understandable that practical considerations around horses may not always feel like a priority”.

“However, as recent cases have shown, horses can become part of wider legal discussions, making it important for owners to keep clear records of ownership, financial contributions and day-to-day care, such as who pays for livery, veterinary fees and other ongoing costs,” she said.

“Seeking appropriate legal advice can help reduce uncertainty and stress for all involved. For BHS gold members, our legal helpline is available to provide confidential, practical guidance on a wide range of legal matters, including situations where personal circumstances may impact ownership”.

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Yard and horse owners are being encouraged to have written agreements in place to cover the authorisation of emergency veterinary treatment after an owner took action against her vet when her colicking horse was put down in her absence

The 2019 legal battle was brought after the horse was put down, rather than undergoing colic surgery, when its owner was not present.

While the vet told the yard owner surgery was an option, she did not advise on the horse’s chance of returning to competition. The yard owner did not pass on the fact surgery was an option to the horse owner, who said she would have opted for surgery had she been given more information on the prognosis.

The owner took legal action against the vet practice, claiming negligence for failing to advise the horse had a 50/50 prospect of returning to competition after surgery. The judge found as the yard owner did not pass on any information about surgery to the horse owner, she would not have passed on the prognosis, even if this had been given by the vet. Therefore, the case was dismissed.

Hannah Bradley of the Equine Law Firm told H&H the case was significant because it could have been brought against the yard owner for not passing on the information. She recommends yard and horse owners have an agreement in place on what decisions should be taken in the horse owner’s absence in an emergency.

“Having a contract is important; for yard owners’ protection and horse owners’ peace of mind. People have different expectations based on sentimental attachment, value of the horse and financial affairs,” she said.

“Everyone has to be clear because disputes happen when people make decisions they’re not authorised to.”

Ms Bradley said yards should have terms setting out emergency situations. She added that agreements can be made in an exchange of written communication such as email, whereby both parties agree.

“Society is becoming more litigious; people want to protect themselves and that is the correct thing to do — particularly from a yard owner’s perspective,” she said.

“For horse owners, it gives certainty because they don’t want a situation where they’re incurring vet bills they wouldn’t have authorised, or where a horse is euthanised when they wouldn’t have chosen this.”

British Horse Society (BHS) head of approvals Oonagh Meyer told H&H in the owner’s absence that deciding whether a horse should be referred to a veterinary hospital or for surgery is “almost impossible” if guidelines are not in place.

“Contracts should outline a plan to be followed in emergencies — for example, written details of a go-to contact the horse owner authorises to make decisions should they not be contactable,” she said.

“Communication should include clarity on permission to discuss and attend to the horse with the veterinary practice with which the horse or yard is registered. Many vets request clients notify them in advance of any such permissions.”

A spokesman for the Equestrian Employers Association told H&H written policies are “vital” for businesses with equines in their care.

“This should cover day-to-day care, responsibilities when contacting the vet and owners’ wishes in the event of emergency. It is better to have the conversation before an emergency than during a time-sensitive and stressful situation when emotions are running high.”

Things to consider

Ms Bradley recommends owners consider the following points:

• What efforts should be made to contact you if an issue arises in relation to the welfare of your horse?
• If you cannot be contacted, can a vet be called without your authority?
• Do you wish to put a cap on how much can be incurred on vet’s bills in your absence? Make this decision considering the level of your insurance cover and any exclusions on the policy. If necessary, agree a separate cap for fees that are potentially not covered by your insurance policy.
• Do you wish to define how certain important or urgent veterinary decisions should be made if you can’t be reached? It will be difficult to define your wishes for every possible scenario. You could, for example, agree the yard owner may authorise veterinary treatment to relieve the horse from pain or to prevent the deterioration of any condition.
• Do you wish to agree in what circumstances the yard owner may sanction the euthanasia of the horse? As you will unlikely be able to define all the possible scenarios where euthanasia may be a possibility, it may be sensible to agree that euthanasia may be sanctioned if it is advised by the attending veterinary surgeon.

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Family lawyer Claire Dean is a partner at Geldards LLP, part of the law firm’s family and equine law teams and has four horses of her own. In this article, Claire explains the steps you need to consider to ensure you keep hold of your horse when going through divorce proceedings.

The law in England and Wales states that any asset owned by a party, or in which a party has ‘an interest’, may become a marital asset to be divided or sold upon divorce. Horses fall into this category, even if the horse is owned in only your name.

A horse is often considered an expense and luxury, and in all too many divorce cases, is considered an asset that a non-equestrian spouse would want to be sold. The value of your horse and any proceeds of sale may well be included in the assets available to be shared on a divorce.

The good news is this can be avoided if there is a properly drafted pre- or post-nuptial agreement that ringfences your horse from the divorce pot. These agreements do not have to be long but should, for maximum protection, be drawn up by a specialist family lawyer.

In the absence of a pre- or a post-nuptial agreement, arguments often arise as to the affordability of maintaining your equine and whether or not this forms a ‘reasonable need’ after marriage. Arguments of this nature are upsetting and costly, but unless your horse is linked to your ability to earn money it may be considered an unaffordable luxury.

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If you are wishing to protect your horse from a divorce it is wise to obtain legal advice before your marriage ends when, with the assistance of a specialist solicitor, you may reach an agreement with your partner that the horse should be excluded from assets to be distributed upon divorce. Failing this, you will need to consider whether you could prove to the court that the maintenance of your horse is affordable, and the ownership of your horse falls within your reasonable needs.

For all the latest news analysis, competition reports, interviews, features and much more, don’t miss Horse & Hound magazine, on sale every Thursday

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Rebecca Stojak, an associate solicitor specialising in equine law, explains the steps you need to take in order to prove the ownership of a horse or pony

In the UK we don’t currently have one single document that proves ownership of a horse or pony.

A horse’s passport may be proof of identity of the horse, but it does not confirm ownership. So the question is, what does prove ownership of a horse?

In an ideal world, when you buy your horse you will have a dated receipt for any deposit and the purchase price of the horse. This should also detail who sold and bought the horse, for how much and how the purchase price was paid.

There should also, ideally, be a contract for the purchase of your horse. The contract doesn’t have to be a long document but should, for maximum protection, be drawn up by a specialist equine solicitor. The contract should contain the following, among other things:

• The date the agreement/contract is made
• The names and addresses of the seller and the buyer
• Details and a description of the horse, which could include:
  • The name of the horse
  • Passport number
  • Freezemark number (if your horse has one)
  • Microchip number (which matches the microchip number on the horse’s passport)
  • Height of the horse
  • Colour of the horse (and any distinguishing markings)
  • Sex of the horse
  • Age of the horse
• That the seller confirms that they own the horse and that all the details given (above) are accurate and true;
• Details of the deposit (if there was one) for example, how it was paid and when it was paid
• Details of sale price, the date it must be paid by and again how it is to be paid.

If you don’t have a contract for the purchase of your horse, there are other documents which, in the eyes of the English courts, could be used to help prove that you own your horse. For example these documents include your historic bills and/or records for your horse in relation to their insurance (if your horse is insured), their livery, farrier and any veterinary treatments (e.g. their flu and tetanus vaccination booster).

You should also ensure that you keep copies of correspondence with the sellers of the horse together with the original advert. I would recommend that you ensure that these records are as up to date as possible, for example on your vet’s records your horse’s name and identity is clear (i.e. cannot be mistaken for another horse).

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On 25 June 2018 it was also announced that new legislation is coming into force, which confirms that all horses (even those born before 30 June 2009) will need to be microchipped by 1 October 2020. There will also be a new Central Equine Database, which it is currently understood will contain the details of the horse’s microchip number together with the details of the horse’s owner.

When you buy a new horse I would recommend that you keep all documents relating to the horse in a safe place and ensure that electronic copies of documents are backed up, on a USB drive for example.

For all the latest equestrian news and reports, don’t miss Horse & Hound magazine, out every Thursday.

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A teenage part-time groom has been awarded more than £20,000 in compensation after being kicked while at work.

The groom was 16 when she was kicked by a horse on 1 April 2014.

She was working as a part-time groom at a livert yard in West Yorkshire when she was asked to turn out one of the horses.

The horse spun round kicked her in the face, breaking her jaw in two places and causing her briefly to lose consciousness.

She said she was not aware that one of the horses had a history of temperament issues.

A letter of claim was sent to the third party insurer alleging fault on the basis that the employer had failed to warn the groom of the horse’s known characteristics and failed to take positive steps to safeguard her health, safety and wellbeing while at work. An early admission of liability was obtained.

She was awarded £20,750 compensation via an out-of-court settlement on 15 July this year.

She is expected to make a “good functional recovery” from her injuries, although she was likely to suffer from altered sensation and mild paraesthesia of her lip indefinitely, in addition to suffering from mild permanent swelling of the left side of her jaw.

“We understand that people are often hesitant to bring a claim against their employer through fear of causing difficulties in the work place, but if you sustain injury as a result of your employer’s negligence you really shouldn’t be put off,” said a spokesman for HorseSolictor, who represented the groom.

“Employers are required to have insurance and have a legal responsibility to ensure that they have done all they can to protect their employees. Appropriate training, a safe work place and suitable safety equipment must be provided.

“In failing to either alert her to the known characteristics of the horse, or put appropriate measures in place to minimise the risk, her employer failed in its duty of care.”

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The divorce process is painful enough without having to face the stress of losing your horse as well. While the law provides for children in the event of their parents separating, there is no similar statute pertaining to pets.

Horses and other animals are treated on the same basis as chairs, paintings and other “personal chattels” — so it’s no surprise that disputes often arise over who retains them following divorce.

It’s usually best to try to resolve any disagreement between yourselves rather than relying on legal processes.

“If you are a couple and one of you is ‘horsey’ and the other is not, then it will be clear to both of you who owns the horse,” says Jennifer Wilkie of Anderson Strathern LLP. “It goes without saying that the ‘non-horsey’ half of the relationship may have little interest in retaining a horse and will be accepting of the fact that the horse belongs to their spouse.”

But what happens in cases where both of you want to keep the horse?

Who gets what?

According to Josephine Fay, family team solicitor at law firm Farrer & Co, there are no hard and fast rules governing how chattels should be divided.

“The issue will be determined on a case by case basis,” she explains. “Generally the courts are reluctant to engage in disputes regarding chattels — including pets — and parties are encouraged to reach an agreement between themselves. However, in highly contentious cases it may be necessary to ask a judge to decide.

“Obviously you can’t chop a horse in two, but if, for example, the parties still lived close to one another, they could agree to share time with the horse,” adds Josephine.

“If the only answer is for one party to keep the horse (and both want to), the court will ask each party to set out why they consider it would be most fair for the horse to stay with them. Reasons could include who bought the horse, who has the greatest connection to the horse (for example, was it the foal of a horse owned by one party’s family), whose post-separation home is best equipped for the horse, who could most easily buy themselves another horse and be happy with that outcome?”

Claiming ‘maintenance’

If it’s good news, and your other half is allowing you to hang on to the horse after the divorce proceedings go through, the next question is how you are going to pay the livery costs?

Justin Wadham, a consultant at equestrian law firm Edmondson Hall, says that maintenance costs will only be accorded in high net worth cases.

“Maintenance is generally based on income needs,” he explains. “The wealthier the parties, the more likelihood of it being the case that, for example, the husband will provide ongoing spousal maintenance to his wife.

However, in more “run of the mill” cases where there is a limited maintenance claim then it is almost certain that a court will not make one party pay monies towards the upkeep of a horse.”

Justin adds that the best way to avoid issues over ownership and maintenance costs is to have a pre-nup in place.

“If a couple in contemplation of marriage wish to enter into a pre-nuptial agreement, they would be advised to include the horse and how it would be treated should the parties divorce.”

The law in Scotland

Scottish law differs slightly from English law as it pertains to property — including horses.

The court’s decision as to who owns a horse will be decided on the basis of who the horse actually belongs to and whether the horse is considered to be matrimonial property, in which case it will be accounted for in terms of its value.

To simplify the divorce proceedings, it is crucial to determine who owns the horse when it is purchased.

Divorce and horses — 5 things to remember:

1. Horses are treated in law as a type of property known as a “personal chattel”.

2. Other pets, such as dogs and cats, are also treated as personal chattels — but because horses are more valuable and cost more to keep, the issue of who retains them on divorce may be more contentious.

3. It is possible to state in a pre-nuptial agreement who owns a horse and who will retain it in the event of a divorce.

4. The prospect of a horse being retained on divorce all depends on affordability.

5. “Time share” arrangements are an option when it comes to horses and other pets, and can be negotiated by your lawyers.

Ref: Horse & Hound; 1 January 2015

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Equestrian businesses are being warned of the potential dangers of being underinsured.

Two recent legal cases have highlighted the expense of defending personal injury claims.

In one case, defended by HorseSolicitor, which concluded in the autumn (28 October), an equine events display company was forced to pay out more than £15,000 after a sub-contractor was kicked by a partially sighted horse.

The claimant (not pictured), who suffered a fractured leg in the accident in Sheffield on 12 April, alleged that the company had provided an “unsafe place to work”.

The company was underinsured as it had specifically elected not to include cover for injury caused to employees/contractors by the horses.

Due to government changes to personal injury cases — implemented in April 2013 — even when a defendant successfully defeats a claim, there are very limited circumstances in which the court will allow the defendant to recover their legal fees incurred. Defence costs of a contested trial can run into tens of thousands of pounds.

“The defendant does not feel that they did anything to warrant the claim against them, however the commercial reality of defence costs being unrecoverable led them to choose to reach a settlement at an early stage,” explained the HorseSolicitor’s Neil Rees.

In another similar case, a livery yard owner in Usk, Monmouthshire, who was not insured for riding lessons, faced a claim after a child sustained back injuries in July 2013 on her property, requiring metal rods to be inserted into her spine.

The owner’s expenditure could potentially have been hundreds of thousands of pounds, but the case was closed on 12 January 2014 with legal fees of £1,500.

Both cases may have been avoided if the defendants had not been underinsured.

“Each policyholder should ensure that the level of cover and extent of the policy that they have meets the likely risks that they may face in the event of a claim,” Mr Rees added.

“Had the company paid for the increased insurance cover [in the first case] they would have had an indemnity from their insurer in respect of both the claimant’s claim for damages and legal costs, and also the costs of defending the case to trial.”

Ref: Horse & Hound; 11 December 2014

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A Staffordshire solicitor has started her own law firm, dealing solely with equine related cases.

Jacqui Fulton, formerly head of the equine law department and an associate of Blythe Liggins Solicitors, Warwickshire, started up her own business Jacqui Fulton Equine Law to provide a specialist service to horse owners.

“I felt it was time this huge industry had a dedicated law firm that people can turn to for help, representation and advice,” Ms Fulton said.

A solicitor advocate, Ms Fulton can represent clients in hearings up to and including the High Court.

Her workload will cover veterinary and purchase disputes, loan and competition contracts, riding and horse accident claims and representing riders in the Court of Arbitration for Sport.

“Riders, competitors, breeders and livery yard owners need to know the solicitors they employ really understand every aspect of the horse world. This is crucial if they are to be represented properly,” Ms Fulton said.

A horse owner, competitor and livery yard manager herself, Ms Fulton has competed her dressage horses up to Prix St George level, and breeds Hanoverians for dressage.

See the Jacqui Fulton Equine Law website, www.equinelawuk.co.uk for free law advice and further contact details.

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Q: I am looking for someone to loan my horse, but worry about the pitfalls.

A friend of mine was horrified to learn that her loan horse had been put down by a vet after a bout of colic. Is this allowed to happen?

AM, South Wales

Although the case you mention is a sad one, it is not an uncommon scenario. The welfare of a horse is the responsibility of the carer or keeper rather than the owner.

Furthermore, a vet has a duty of care to the horse and this takes priority over contacting any unavailable parties involved in the animal’s care.

“The story highlights the importance of having a sound loan agreement,” said Samantha McEwan, partner at law firm Stone King Sewell.

“The loanee is, of course, strongly advised to have the horse vetted as an objective evidence of its health at the commencement of the loan.”

According to Samantha, a loan agreement should include the following:

• Authority regarding veterinary intervention and euthanasia

• Stipulation of an agreement to loan, not a sale or gift

• Description of the condition of the horse and equipment

• Details of how long the loan is for and any options for renewal or termination

• Details of where the horse should be kept

• Details of who pays for what — vaccinations, insurance, etc

“Incidentally, in the example you gave of the horse being euthanased, legal action on the part of the horse’s owner would have been unlikely to succeed — it would actually be evidentially very difficult to establish that the vet was negligent in putting the horse down, or that the animal’s owner would not have done the same thing if consulted,” said Samantha.

Information

Stone King Sewell (Samantha McEwan), tel: 01285 649717 www.skslaw.co.uk

This article was first published in Horse & Hound (6 May, ’10)

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Q: Seven months ago, I purchased a 16hh, five-year-old gelding who had been recently broken. The seller regularly bought and sold horses.

For the first few months he was fairly well behaved, although he could be tricky to handle and his stallion-like traits were put down to being broken late.

However, as he built up condition and strength, his behaviour – particularly around mares – has worsened.

Blood tests showed that he is a rig – an incompletely castrated male. Do we have any legal redress?

JK, Merseyside

Unfortunately, given the passage of time, it is highly unlikely you now have a right to formally reject the horse by returning it to the seller and demanding your money back, according to solicitor Stuart Farr, of Laytons Solicitors.

“However, the fact the seller had been buying other horses with a view to bringing them on and then selling, with at least some degree of regularity, may be sufficient grounds to allege that the individual was dealing horses in the course of a trade,” Stuart said.

“In that case, you would then be able to utilise the consumer protection rights available to you under the sale of goods legislation.

“Accordingly, a claim for breach of contract on the grounds that the horse is neither fit for its purpose, or of satisfactory quality, may be sustainable.

“Alternatively, as it appears you were told the horse was a gelding, it is likely you would be able to mount a claim based on misrepresentation in any event.

“The representation may either have been innocent, negligent or fraudulent, but in whichever case, you may be entitled to seek damages primarily based on the difference you paid for the horse and its actual value [as a rig] at the time of the purchase,” said Stuart.

Information

Laytons , tel: 0161 214 1600 www.laytons.com

This article was first published in Horse & Hound (8 April, ’10)

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Q: Are there any laws restricting the number of horses that can be kept on your own land for private use?

My neighbour keeps over 100 horses on his 40 acres of land, which seems excessive, especially when herds of them gallop up and down our boundary fencing.

Does the local authority have enforcement powers to restrict numbers?

PC, Suffolk

There are no laws restricting the number of horses kept privately, unless planning or “duty of care” regulations are challenged.

The UK does have generic animal welfare guidelines that reflect the need for disease control and animal welfare; organisations such as the British Horse Society and Defra advise horse owners on these guidelines.

Experts generally recommend one to two acres of grazing per horse.

Local authorities may become involved if overgrazed land becomes hazardous; the horses have “a negative effect on the local environment”; if there is a problem with noise pollution, or if the authorities become involved if there are welfare concerns with the horses.

Planning implications

Rebecca Hewitt, partner in the equine team at Darbys Solicitors LLP, advises you to look into planning considerations involved in keeping multiple horses: “Planning considerations can be surprisingly complicated when it comes to keeping horses,” she said.

“Keeping horses for your own enjoyment may not require planning permission, but only if the horses are deemed to be ‘incidental to the enjoyment of the dwelling house’, and kept within the curtilage of the property.

“Owners should also comply with the Animal Welfare Act 2006 and the Horse Passport Regulations 2005 [updated in July 2009],” said Rebecca.

“They have a legal duty of care to all horses to ensure they have a suitable environment to live in, a healthy diet and are protected from pain, suffering and disease.”

Information

Darbys, tel: 01865 811700 www.darbys.co.uk

This article was first published in Horse & Hound (18 February, ’10)

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Q: I purchased an equestrian property last year for private use. I recently received an enforcement notice from the council, threatening to demolish my house.

Apparently, planning for the property strictly requires it to be used as a stud and that the residential property is ancillary to this. Can I apply for a change of use?

RS, Berkshire

You could submit a change of use application, but it is important to open up a positive dialogue first with your local authority planning department.

“This will show you are actively dealing with the matter,” said equine lawyer, Sarah Jordan, of Daltons Solicitors.

“The planners may be open to you putting in a change of use application to part-private and part-livery, for example.

“Another option, albeit a potentially costly one, is for you to establish a breeding programme that would satisfy the planning condition.

“It would be vital to verify the exact requirements of the relevant condition to ensure you do not incur additional expense and inconvenience in connection with a breeding programme which is not capable of meeting the specified requirements.”

According to Sarah, your current private use of the property appears to be in breach of planning law, and therefore cannot continue.

“If you ignore the enforcement notice, you risk losing your home,” she explained.

“The solicitor who dealt with the purchase of your property should have brought the planning condition to your attention prior to exchange of contracts. The restriction may have been missed and could therefore form the basis of a professional negligence claim.”

Information

Daltons Solicitors, tel: 01730 262816 www.equinelawyer.co.uk

This article was first published in Horse & Hound (21 January, ’10)

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Q: I run a livery business from my farm and have recently experienced difficulties with a horse owner being unable to pay their livery fees.

I am worried that the owner will simply leave the yard without settling their debts. I believe I can claim their horse in lieu of their debts; can I do this or what are the alternatives?

MB, Leicestershire

Under English law, the claiming of a horse as you describe is referred to as “a right of lien”, whereby you are at liberty to retain goods until a bad debt is settled.

However, according to Kerry Humble of Blake Lapthorn solicitors, in the absence of a livery agreement, the law does not imply the right of lien into any agreement you and the owner may have.

“Far better is to pre-empt the situation before large amounts of money start accruing, and have a livery agreement drawn up that includes a lien over owners, horses or goods kept at the yard,” Kerry said.

“It is advisable to include the ‘power of sale’ in an agreement, so you can unequivocally sell such items to settle debts.

“However, it is important that the agreement is specific as to the terms of credit and when payment is due; for example, is it monthly, weekly, etc.”

In these uncertain economic times, it is important to keep an eye on unpaid accounts, so that large debts — which in some cases could outweigh the value of the horse, especially in today’s falling market — do not accumulate.

“Within an agreement, you can clearly define your terms of business and state what is and isn’t included in the livery service,” said Kerry.

“I would also suggest you ask for one month’s payment in advance from your liveries, or even a returnable deposit should an owner decide to leave the yard.

“A clear agreement will not only benefit your business, but also your owners, as there should be no disagreement as to what the livery fee includes.”

Without an agreement, you may have to seek your livery’s debts (up to £5,000) through the county court small claims track.

“However, each party has to meet their own legal costs,” said Kerry. “Court fees and witness expenses are recoverable by the successful party.”

Information

Blake Lapthorn, tel: 02380 857108 www.bllaw.co.uk

www.moneyclaim.gov.uk

This article was first published in Horse & Hound (21 January, ’10)

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Q: My 4×4 received panel damage after a horse on our livery yard fell into it. No one was injured, the horse was insured and my vehicle is covered by fully comprehensive insurance.

The equine insurers will not pay out because “strict liability does not impose” and no negligence can be shown — my insurance company wants to write-off my vehicle or fund a replacement.

The person who owns the horse claims that they have no money. As the “injured party”, I am out of pocket because of the small print in my policy.

LG, Worcestershire

Following a well-known test case, it was believed that owners would always be responsible for damage done by their horse; but this has turned out not to be the case.

H&H asked several insurance experts for their advice regarding this situation.

Guy Prest of KBIS British Equestrian Insurance says that since the car owner has a comprehensive policy, the correct procedure is for him to make a claim on his own motor policy.

“The insurer would then make a claim against the insurance cover of the third party [horse owner]. Even if the third party’s insurance accepted liability, the settlement would probably be the same,” said Guy.

“As to whether the horse owner is liable or not, there are two ways to establish liability — negligence and/or a breach of statutory duty. Strict liability can occur in certain circumstances in relation to horses, under the Animals Act, as a consequence of the Mirvahedy v Henley case.

“In this case, it would appear the horse owner has legal liability cover, but the insurer does not consider the horse owner is liable and is therefore denying the claim. If that is the case, the insurer has fulfilled its policy obligations.”

South Essex Insurance Brokers’ (SEIB) David Buckton agrees this is not a question of policy small print, but a point of law.

“I don’t have all the details, but this case would seem to be one of those genuine, blameless accidents, with no particular circumstances to bring the Animals Act in to play,” he said.

“It is understandable that a rider may feel sorry for a third party, particularly if that person is a friend who has suffered damage caused by the rider’s horse.

“The rider may feel for all sorts of reasons that they should compensate the injured party in some way, but unless there is a legal liability, they don’t have to.

“In simple terms, if the horse owner is not compelled legally to pay damages, there is nothing for the insurer to pay.

“There have been several court decisions following the test case that have helped to clarify the particular circumstance when a claim brought under the Animals Act will be successful,” David concluded.

Information

KBIS, tel: 01635 247474 www.kbis.co.uk

SEIB, tel: 01708 850000 www.seib.co.uk

This article was first published in Horse & Hound (7 January, ’10)

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Q: We bought a pony from a horse dealer, taking along an equestrian expert, but have since experienced problems with the animal.

The pony windsucks – which wasn’t noted in the two-stage vetting – and box walks, has attacked other ponies and backed up and kicked me, breaking my arm. I am still off work and unable to drive.

He also broke my finger when I was loading him and drags his handlers. I have asked the dealer for a full refund, or an alternative pony suitable for a 13-year-old, as discussed during purchase.

The pony was not advertised, but described verbally to us. Have I legal recourse?

SC, Worcestershire

According to Richard Brooks of solicitors Withy King, winning a legal case against the dealer may require you to engage an expert witness with a credible understanding of equine behaviour. This is because the seller will deploy the standard argument that something the buyer has done has caused the problems.

“In every sale, the buyer is entitled to rely on statements made by the seller, be it in adverts or verbally, when discussing the horse’s attributes,” said Richard.

“I will assume as this involves a horse dealer, that this is a sale in the course of a business; hence, the buyer is able to rely on the protection of the Sale of Goods Act 1979. Accordingly, goods – including horses – must be of satisfactory quality.

“They must be fit for the purpose for which the seller knows they are being purchased, which I will assume is the case here. I will also assume the behavioural defects existed at the time of the sale, but were somehow not evident.

“‘Satisfactory’ is a slightly woolly term, but it is common sense that if you pay good money for a horse, it should be of good quality,” he said. “The sellers defence for such a claim is to show that the defect should have been picked up in the vetting.

“However, in this case there are several defects being complained about and any one of them may mean the pony is not satisfactory. Vettings cannot pick up all defects and in this example it is not obvious that it should have done so.

“‘Fitness for purpose’ is a quite separate argument and the seller cannot use the same defence to a claim that the horse is not fit for purpose.”

With the backing of your equestrian expert, there is a reasonable case under the Sale of Goods Act.

“You should claim your money back, plus all expenses since purchase and, quite possibly, compensation for your injuries,” said Richard. “Time is of the essence in making your case.”

Information

Withy King, tel: 01865 792300 www.withyking.co.uk

This article was first published in Horse & Hound (31 December, ’09)

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Q: The owners of our neighbouring field have a stallion. The dividing fence, which is their responsibility, is made from sheep netting and barbed wire.

What would happen if the stallion escaped and covered my mare or injured my gelding?

MW, Bedfordshire

The duty of the horse’s owner arises under the law of negligence and the Animals Act 1971.

“If a horse owner has been negligent by having inadequate fencing, they can be liable,” said Sarah Webb, partner at Russell Jones & Walker.

“Under the general law of negligence, damage caused by the escaping horse, including covering a mare, could be recovered from the owner if a lack of care on the owner’s part was shown.”

Claims under the act provide for strict liability for damage done by animals. According to Sarah, claimants must prove the animal has escaped and caused damage, by demonstrating the following:

• The damage is of a kind that the unrestrained animal was likely to cause and it was likely to be severe

• The damage was due to a characteristic of the animal not normally found in an animal of the same species

• The characteristic was not normally found, except in particular times/circumstances

• These characteristics were known to the keeper

“Equine insurance policies usually provide indemnity for accident, sickness and injury,” added David Buckton, associate director of South Essex Insurance Brokers (SEIB).

“An accidental injury to an insured horse caused by another animal would generally be covered by such a policy.

“I see that the fence is the responsibility of the stallion owner. But, regardless of who is responsible for the fence, I would strongly recommend you put up your own fence of an adequate strength to protect your animals.

“Perhaps you and your neighbour could agree to share the cost? The stallion owner may have a public liability insurance policy, which you might get a payment from if it could be shown that the stallion owner was liable for any damage, as described by Sarah Webb.

“In this example, it would be far better to negotiate safe management of all the animals involved, rather than wait for an accident to happen,” he said.

Information

Russell Jones & Walker, tel: 0207 837 2808 www.rjw.co.uk

SEIB, tel: 01708 850000 www.seib.co.uk

This article was first published in Horse & Hound (29 October, ’09)

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Q: I moved into my own yard with five stables and six acres last year.

There are two buildings opposite — one a commercial business — and both tenants are complaining about the smell of the muckheap, which is removed by a local farmer four times a year.

The council asked if I could cover the muckheap up, but I am worried about the fire risk.

I have also considered having someone collect the muck and leaving a trailer for me to fill, but the council does not like that idea because it will be “unsightly”. What can I do?

A Holden, Beds

There are no products that adequately deal with the smell of a muckheap and covering the heap would, as you say, bring its own risks.

A spokesman from the environment and planning department of Central Bedfordshire council explained that nuisance smells are dealt with as statutory nuisances under sections 79 and 80 of the Environmental Protection Act 1990.

Statutory nuisance

“Under this legislation, we would probably look at such complaints in terms of accumulations of a nuisance. Whether a smell was a statutory nuisance would depend on its severity and duration, and its distance to the houses in question,” the spokesman explained.

“We would make a judgement as to whether the smell materially interferes with a person’s enjoyment of their own home. There are no readings taken to assess the level of smell!

“Our best advice in this scenario is to have the muck regularly removed by a regulated waste contractor; perhaps more frequently than your current three-monthly removal.

“I would not recommend covering up the muckheap, as this will increase the likelihood of harbouring rodents.”

The Environment Agency deals with commercial — as opposed to private — issues concerning odour problems, but added: “We realise the distinction between an acceptable and an unpleasant smell can be subjective, but also recognise that persistent odour can have a big impact on people’s quality of life.

“Our odour experts do work with companies to help resolve problems and, where businesses ignore odour problems, we can and do bring prosecutions.”

This article was first published in Horse & Hound (22 October, ’09)

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What sort of issues do I need to consider when preparing a health and safety report for a novice hunter trial?

KDL, Northants

As an event organiser, you will have a duty of care to both spectators and competitors.

According to Samantha McEwan, head of equine law at Stone King Sewell Solicitors, you will need to carry out a risk assessment before the event, and take steps to eliminate or at least reduce the identified risks as far as possible.

The following points should be considered as a minimum, although this is not a definitive list.

• How are people going to get in and out?

• Is the collecting ring and start/finish area large enough and roped off?

• Does your insurance policy cover the event?

• Are there enough people at the event to act as stewards?

• Is your course safe? Are there any overhanging trees or cables? What is the ground like? Make a last check of the ground on the day, particularly if the weather is bad

• Advise competitors in your conditions of entry that riding hats and body protectors meeting current safety standards must be worn

• Ensure that dogs are kept on a lead at all times

• Ensure food hygiene for any catering facilities

• Provide adequate toilets

• Keep an accident book

• Limit the use of all-terrain vehicles (ATVs)

• Communication: your stewards will need mobile phones, whistles, flags and walkie-talkies

• Arrange suitable medical, vet and farrier cover for the day

It is advisable to include a disclaimer on your entry forms and promotional material stating that the organiser has taken steps to ensure the health and safety of all present, but that visitors must take their own personal safety precautions.

In terms of planning the logistics of your event, you can seek help from the British Horse Society’s affiliation scheme, British Riding Clubs.

Information

British Horse Society www.bhs.org.uk

Stone King Sewell Solicitors, tel: 01285 649717 www.skslaw.co.uk

This Q&A was first published in Horse & Hound (11 June, ’09)

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Q: I went to try out a horse advertised as “ideal for bringing on for dressage“. What they hadn’t mentioned was that it was a newly retired show jumper who could no longer jump and that they were trying to sell it as a dressage horse.

Is this misrepresentation or does that only come into play after purchase?

WM, West Lothian

In legal terms, when a horse is being sold, views may be expressed by a seller in order to convey a positive impression of the horse, but which are merely intended to generate interest from purchasers.

These views may be expressed verbally or in writing, such as in an advertisement.

“Describing a horse as ‘highly desirable’, having ‘great potential’ or ‘ideal for bringing on for dressage‘ are examples of these views; but such ‘sales talk’ will normally have no legal effect,” explained Stuart Farr, of Laytons Solicitors.

“Other comments, however, may be more factual and specific and will go to the heart of a horse’s condition or capabilities. A purchaser may rely on such ‘representations’ when buying.

“In this context, a ‘misrepresentation’ is essentially an untrue statement of fact made by a seller that is relied on and induces a purchaser to buy the horse in question.”

Stuart gives the example of a seller who wrongly asserts that a horse performs to advanced level dressage.

The seller may be exposed to a claim from a buyer who bought the horse in reliance of that statement and subsequently discovers that the horse has no skills in dressage.

“Stating that a horse has potential to do something in the future, however, may be closer to an expression of opinion rather than fact, although much will depend on whether the person making the statement has specialist expertise or knowledge,” Stuart said.

“There are various types of misrepresentation – fraudulent, negligent or innocent.

“Depending on the type of misrepresentation alleged, an aggrieved purchaser will usually claim damages. In addition, the contract may be ‘set aside’, or legally annulled, in order to return the parties to their original positions.”

Information

Laytons Solicitors, tel: 0161 834 2100 www.laytons.com

This article was first published in Horse & Hound (4 June, ’09)

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Q: My teenage son rides a horse at a private livery yard where the yard owner looks after the horse for its late owner’s husband. My son grooms and rides the horse and one of the liveries rides out with him.

The livery and the yard owner are happy for my son to ride and help with the horse, but both say he rides at his own risk.

While I pay a small contribution towards the horse’s keep, he is not on loan to us. Should I take out insurance for my son?

CP, West Yorks

This is actually a somewhat complicated scenario. We asked David Buckton, associate director of South Essex Insurance Brokers (SEIB), for his advice.

“This appears to be an arrangement set up to ensure continued care for a horse after its owner has died. Did the deceased wife have any insurance that could be or has been transferred to the husband, who is now the horse’s owner?” asked David.

Is there existing insurance?

“The parent should find out whether either the horse’s owner (the widower) or the yard owner, or both, have existing insurance that covers the situation. They probably haven’t, as they say the child rides at his ‘own risk’.

“The situation is complicated by the son’s young age,” said David. “Does the yard have a written health and safety policy? As the son seems to be carrying out activities on behalf of the yard owner, has the yard owner consulted the local authority regarding a young person’s work permit?”

Formal loan agreement

“I would be concerned about the arrangement as it stands — the son is being left in a potentially risky situation, possibly without adequate supervision,” said David.

“The parent is paying a contribution towards keep, although it is said not to be a loan arrangement. I would recommend that a formal written loan agreement is drawn up, setting out who is responsible for insurance — the British Horse Society [BHS] provides examples of these.”

Who is responsible?

“Once in place, the parent, as the borrower, is now responsible for the horse and the son’s riding becomes a family activity, not a job done for the livery yard,” explained David.

“Insurance could then be obtained from a specialist equine insurance broker or, for example, by taking out gold family membership of the BHS. This includes public liability insurance and personal accident cover — although personal accident benefits for children are reduced.”

Information

South Essex Insurance Brokers, tel: 01708 850027 www.seib.co.uk

British Horse Society www.bhs.org.uk

This article was first published in Horse & Hound (4 June, ’09)

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Q: If buying a horse from a German agent, who would be liable if things went wrong?

RB, Surrey

Tanja Uredat, managing director of the German Horse Center, a service for buying German dressage horses and show jumping horses, says brokers usually do not enter into direct contractual agreements with purchasers.

“Purchasers must choose and assess vendors carefully,” she said.

Tanja recommends clarifying terms of the commission, payable to the agent by partners such as studs.

“Will commission be reimbursed if the purchase is cancelled?” she said. “The German Horse Center pays commission back if cancellation occurs within a year of the purchase date.”

According to Tanja, the German vendor usually carries out a pre-purchase inspection and X-rays.

“However, a further inspection should also be carried out on behalf of the purchaser, for example by a horse hospital or independent equine vet,” she said.

The contract of sale is formalised directly with the vendor. Michael Klimke, lawyer at the German Horse Center’s legal partners, Klimke & Kollegen, advises that a statement about the horse’s level of training and health status should be included in the contract.

“If at the time of transfer the horse has an illness of which the purchaser was not initially aware, there is a legal right of return in Germany, depending on circumstances,” he said.

According to Mark Charter of UK solicitors Blake Lapthorn, the owner and agent may both potentially be liable in the event of things going wrong, depending on the agreement terms and circumstances.

“The best purchaser protection is a pre-sale, detailed, written contract which, in addition to details about the horse, specifies jurisdiction of the legal system in which disputes will be resolved – for this reader, England and Wales,” said Mark.

“If the reader obtained judgement in the English court, that judgement could be enforced in Germany – the converse is true if the German vendor sued the reader.

“If the horse is vetted by a German equine vet, the reader should be aware of the logistics of pursuing a claim against a equine vet in a ‘foreign’ jurisdiction, if there was a vetting problem.”

Information

Blake Lapthorn, tel: 02380 857116 www.bllaw.co.uk

The German Horse Center, tel: 0049 2161 475935 www.germanhorsecenter.com

This Q&A was first published in Horse & Hound (14 May, ’09)

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Q: My horse was five-stage vetted, but turned out to be a windsucker. My vet said the horse has abnormal dental wear that should have been picked up at the pre-purchase vetting.

I have sent a case against the vet to the small claims court, but need to prove a windsucker is worth less than a horse without a stable vice, for financial recoup.

How do I do this?

WR, Merseyside

According to Professor Tim Greet of Rossdales Equine Hospital in Newmarket, an equine vet should be able to identify dental wear, and should note their findings on the veterinary report.

“However, abnormal wear can be subtle,” said Tim. “A pre-purchase vetting affords a rather limited opportunity for identification of stable vices. Worn or irregular incisor margins don’t necessarily indicate a horse is a windsucker and there are other reasons horses can wear incisor teeth irregularly.

“Even if the vet didn’t actually witness the horse windsucking, he should write on the report and discuss with the potential purchaser the finding of significant incisor irregularity.”

Warranty not included

Potential purchasers should be aware that in the Royal College of Veterinary Surgeons’ (RCVS) pre-purchase examination report, note three states: “If purchasers wish to obtain a warranty covering such matters as… freedom from vices… they are advised to seek such a warranty in writing from the vendor, as these are matters between vendor and purchaser and are not the responsibility of the veterinary surgeon.”

Independent witness

If a claim is to be made against another party, according to Stuart Farr of Laytons Solicitors, prior to issuing legal proceedings, it is invariably useful to obtain an independent veterinary expert report as well as a valuation report.

“These reports are often helpful in enabling parties to resolve their disputes without the need for legal proceedings,” he said. “Otherwise, they should provide assistance and explanation to the court regarding the technical aspects of the issues in dispute, while providing an impartial opinion on the animal’s condition, prognosis and any loss of value.

“Valuation evidence generally needs to focus on the difference between the price you paid and what it was actually worth at the time of the purchase – vets may naturally feel uncomfortable about giving expert opinions on value. A reputable horse dealer may be able to assist, particularly as they may be able to source suitable comparisons of similar sales on the open market, in order to substantiate their professional opinions.”

Information

Laytons Solicitors, tel: 0161 834 2100 www.laytons.com

This Q&A was first published in Horse & Hound (7 May, ’09)

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Q: Last year I sent my dressage horse to a reputable horse dealer to be sold for £13,000. Three months later, the horse was still not sold, so I asked if I could collect him.

However, when we arrived, we discovered the horse dealer had left the premises. No phone calls were returned, and I later found out he’d changed his name.

I then received a letter from his solicitor stating he had gone bankrupt and that I was listed as a creditor as he had sold our horse for the agreed amount.

After searching for the horse, we discovered he’d been sold through another horse dealer. Do we have any right to claim the horse back or do we just have to wait and hope that we receive the £13,000 through the administration process?

JG, Dorset

In this situation, it would appear you have a claim attached to the proceeds of your horse’s sale.

“It seems from your question that the horse was actually sold before you attempted to terminate the agency relationship, so the onward sale is probably a red herring,” said Mike Pavitt of solicitors Blake Lapthorn. “In any event, you cannot recover the horse from an innocent purchaser. Your claim attaches to the proceeds of sale.

“On the face of it — subject to the terms of your agency agreement — the horse dealer held the proceeds (net of commission) upon trust for you. You may therefore be able to claim that money if it can still be identified, and has not been mixed with other funds.

“The horse dealer’s insolvency does not necessarily mean the office holder has no funds, just that creditor claims exceed those funds,” said Mike. “If the funds have gone or been mixed, you will have to stand in line as an unsecured creditor. We therefore suggest you take specific legal advice.”

How do I claim my money?

In cases of bankruptcy, there is a hierarchy of fund allocation, with secured creditors who have a claim on collateral, for example the dealer’s mortgage provider, being first in line.

When a third party sells a horse for you, as in this case, it is vital to get a formal agreement in place.

In the event of making a claim as a creditor, the claimant would need to show they had a “fiduciary relationship” with the insolvent person, meaning they were accountable to you in terms of any sale proceeds. A signed agreement would be proof of this relationship.

Anyone who thinks they are a creditor in cases of bankruptcy or liquidation should contact the official receiver at the Insolvency Service to make sure they are listed as a creditor.

The Insolvency Service website has further details of what to do when an individual who owes you money goes bankrupt.

Information

Blake Lapthorn, tel: 02380 857028 www.bllaw.co.uk

Insolvency Service www.insolvency.gov.uk

This Q&A was first published in Horse & Hound (30 April, ’09)

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Q: Over the past two years, the standard of care at my livery yard steadily declined. I decided to give one month’s notice, as required in the contract, but one evening discovered my horse in a dirty stable without hay or water and the owner away until morning. I removed him from the livery yard the following morning. Am I able to recoup the month’s livery costs I paid upfront?

PC, Hampshire

It is reasonable to terminate your livery contract where a fundamental breach has occurred.

“It seems that there has been a string of failures in this case, culminating in a serious breach,” said Richard Brooks, partner at solicitors Withy King. “There is every indication that such breaches would continue and, in the circumstances, you are entitled to your money back.

“It goes without saying that there are two sides to every contract — if you pay your money in return for a promised service, then you expect and are entitled to receive the promised service in return.

“The livery yard has failed in its part of the bargain, and cannot therefore demand that you keep your part of the bargain by paying during the month’s notice period.”

Mark Charter, head of the agriculture and equine team at solicitors Blake Lapthorn, added that the relationship between the reader and the yard owner is still regulated by the livery contract, despite the fact that the reader terminated the contract during the notice period.

“While much will depend upon the exact terms of the livery contract — whether it is a verbal agreement or in writing — one would expect an agreement to impose an obligation on the livery yard owner to feed and water a horse,” said Mark. “Consequently, the failure to do so adequately would be a fundamental breach of contract.

“Following the yard’s breach, the reader was entitled either to treat any future obligations under the agreement as discharged, and claim damages for the breach. By removing the horse from the yard, the reader treated the agreement as ‘at an end’.

“As such, subject to any express terms of the agreement, it appears the reader is entitled to recover the cost of stable and livery services paid from the point of the breach, which on these facts, coincides with the removal of the horse from the livery yard.

“In all likelihood, however, any claim by the reader will fall within the jurisdiction of the small claims court. Consequently, if the livery yard owner does not repay the reader the livery costs in question, and the reader has to sue the livery yard owner, the reader will not recover in that process any fee incurred in taking advice from solicitors,” said Mark.

“There is no reason why the reader could not claim such an action without the involvement of solicitors — however, as in all matters such as these, the economics of pursuing the sum in dispute can ultimately outweigh the sum itself.”

Information

Withy King, tel: 01672 514781 www.withyking.co.uk

Blake Lapthorn, tel: 02380 857116 www.bllaw.co.uk

This Q&A was first published in Horse & Hound (23 April, ’09)

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Q: I bought a saddle from a franchise representative. The company has taken my deposit, delivered an incorrect order and tried to increase the price. When I refused to accept the saddle they sent me, they said they would only correct the order on condition that I paid the full amount before delivery, which I did.

The delivery was then delayed by a further month and, when I finally received my new saddle, it had a gashed seat. I have asked the company to replace it or refund the £1,350 paid. They have indicated they are not willing to do this. What can I do?

GU, London

H&H approached the company that supplied the alleged faulty goods, but they declined to comment.

Goods supplied under a consumer contract must be both fit for their purpose and of satisfactory quality.

In 2002, the law changed to provide additional remedies to a consumer who purchases faulty goods from a seller who operates as a trade or business.

These enable a buyer of defective goods to request the seller either repairs or replaces the goods or, in certain instances, reduces the price or even rescinds the contract. These remedies must be exercised by the consumer within six months of delivery of the goods in question.

When a consumer requests a repair or replacement item, this should be done within a ‘reasonable’ time, and without causing any significant inconvenience to the buyer, according to Stuart Farr of Laytons Solicitors.

“In addition, the seller must bear any reasonable costs associated with the repair or replacement including postage, labour and additional materials,” he said. “A seller can, however, seek to challenge the exercise of these rights if the overall cost would be disproportionate to the goods.

“It would be reasonable to request an interim replacement while the seller affects a repair, if, for example, the horse is a competition horse requiring to maintain its fitness and competitive standards.

“If the company is not prepared to reach a compromise, you might still have the right to reject the damaged saddle and to claim back the purchase price,” said Stuart.

Information

Laytons Solicitors, tel: 0161 834 2100 www.laytons.com

Trading Standards www.tradingstandards.gov.uk

This Q&A was first published in Horse & Hound (16 April, ’09)

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Q: In September 2008 I sold my colt. His passport was changed to the new owner, and an arrangement made that he would stay with me until gelded by my vet, for which I would bear the cost.

However, my vet discovered a sarcoid on his sheath, so the gelding did not proceed. The colt had no further treatment and now the purchaser is requesting the return of the purchase price. Where do I stand?

BA, Borders

It is not uncommon for both parties to agree that certain events will take place before physical possession of the horse is transferred.

“The question that arises, however, is whether the contract between the parties becomes conditional on those events actually taking place,” said Stuart Farr of Laytons Solicitors. “If they don’t take place, the whole contract could become void, or unenforceable.”

Richard Brooks of solicitors Withy King agrees.

“There is a contract here, albeit an oral, not a written one,” he said. “Much depends on whether the contract was concluded on the proviso that the colt was gelded. Did the seller say, in effect, ‘I will buy the colt as long as you geld it?’. If that is the case, the fact that it is not gelded means the seller is not able to satisfy their part of the bargain and cannot force the buyer to pay.

“In legal terms, the contract has been ‘frustrated’ by circumstances nobody anticipated, and both parties should be put back in the position they were in before the deal was done.

“On the other hand, if the gelding operation was discussed only after the purchase contract was concluded, then the question becomes whether the sarcoid is sufficiently serious to constitute a breach of contract,” said Richard.

“If the colt was ‘sold as seen’ then the buyer must buy. Not many sales actually fall into that category because it is only natural for parties to discuss the horse. This means the quality of the horse has to match the words used. A relatively minor sarcoid that affects neither health nor performance is unlikely to constitute a breach of contract.”

“The process of committing any sale agreement to writing is vital and can provide much needed certainty in less straightforward cases, for example, where several things need to be actioned before the horse is delivered to the purchaser,” added Stuart.

Information

Withy King, tel: 01672 514781 www.withyking.co.uk

This Q&A was first published in Horse & Hound (16 April, ’09)

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Q: I am a horse dealer and give a 28-day warranty to allow purchasers time to try a horse. I sold one and three months later the new owner demanded her money back, as the horse has kissing spines.

The horse had passed a five-stage pre-purchase vetting and I feel that, by taking the horse back, I will look guilty and it will affect my reputation.

RA, Lincolnshire

A: The symptoms of kissing spines can be subtle,so it can be difficult to diagnose.

The five-stage pre-purchase vetting is there to allow the vet to offer his opinion on whether the horse is likely to be fit for purpose at the time of examination, rather than excluding all possible abnormal conditions that might be present.

Therefore, if a horse did not show any back problems under saddle or during the vet’s examinations, prompting further X-rays and nerve-block type tests, the horse would quite likely have been assessed as “suitable for intended use’.

“A number of conditions are difficult to identify and asymptomatic abnormalities such as kissing spines are problems that can be present at the time of examination, but still undetectable without recourse to further testing [such as X-rays],’ said vet Deborah Pett MRCVS of Cinder Hill Equine Veterinary Clinic in Sussex.

“Anyone purchasing a horse must accept a degree of risk.”

In terms of the Sale of Goods Act (SGA): “When a horse is sold as part of a trade or business, the SGA 1979 (as amended) will imply certain terms into the contract for sale,” explained Stuart Farr of Laytons Solicitors.

“The most common terms relate to the description applied to the animal – that it should be fit for its purpose, and that the horse should be of satisfactory quality.”

Provided the person buying a horse can establish that a seller has breached a term implied by the SGA, they may be entitled to reject the horse and request a refund. However, they must complain within a “reasonable time”.

“What constitutes a reasonable time depends on the circumstances of each case,” said Stuart. “Nevertheless, where a full pre-purchase vetting is carried out and a warranty is given, there would appear to be strong grounds for arguing that a four-week period is sufficient for the buyer to reject the horse and request a refund. Anything beyond that would suggest that the problem being complained of was not present at the time of sale.

“This might depend on the nature of problem with the animal. In most circumstances, however, taking three months to complain would be too long, and would not entitle a buyer to reject the sale and demand their money back.”

Information

Cinder Hill Equine Veterinary Clinic www.cinderhillequinevets.co.uk

Laytons Solicitors, tel: 0161 834 2100 www.laytons.com

This Q&A was first published in Horse & Hound (2 April, ’09)

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Q: I bought a young eventer for £10,000 from a horse dealer, but a month later she went lame. A vet confirmed she had a degenerative condition.

As this was deemed pre-existing, the insurance company will not pay out. She was not X-rayed at the time of purchase as the insurance company was willing to insure her on the basis of a five-stage pre-purchase vetting.

Although the insurance policy doesn’t cover pre-existing conditions, could I challenge its decision? The company accepted the risk on the basis of the pre-purchase vetting. Osteochondrosis (OCD) was not known at the time of purchase.

Or would I be better off pursuing the horse dealer for costs or for him to buy her back for the purchase price? He proclaimed the horse sound at the time of purchase.

KB, Berwickshire

It is vital you read the conditions of your policy regarding pre-existing conditions and follow correct grievance procedures with your insurance company.

According to David Buckton of South Essex Insurance Brokers (SEIB), insurance law requires everyone to make a full disclosure of knowledge about what they are insuring, while the Association of British Insurers’ code of practice modifies this to disclosure of what can reasonably be known.

“In this case, it seems that the insurer has accepted the reader did not know of the problem when taking out the policy as they have not declined the claim on the grounds of a material non-disclosure,” he said. “At SEIB, we would not waive the X-ray requirement if loss of use cover was proposed.”

An insurance company is only liable for something that happens within the policy period. This condition pre-existed policy inception, but the policyholder didn’t know of it – bearing in mind X-rays would likely have shown up the problem. The important date – when the condition first developed or when it first became clinically manifest – will depend on the precise wording of the exclusion in the policy.

“If you are unhappy about the insurer’s decision you are entitled to complain, and if you are dissatisfied with their final response, you may refer your complaint to the Financial Ombudsman Service (FOS),” said Guy Prest of Kbis insurance company. “In this case, if taken to the FOS, I believe they would find in favour of the horse owner.”

The Sale of Goods Act 1979 implies that the goods are fit for their purpose, are of satisfactory quality and correspond with their description.

“The horse appears to have had a latent defect – something which examination prior to purchase could not have revealed,” said Elizabeth Simpson, senior solicitor with law firm Andrew Jackson. “It is nevertheless something that could render the horse unfit for its purpose. The horse dealer is still potentially liable even though the utmost skill and judgement on his part may not have revealed the existence of the OCD.”

However: “You may have lost the ‘right to reject’ due to having already confirmed acceptance of the horse to the seller, the passage of time or carrying out acts which may be considered inconsistent with the seller’s ownership of the horse,” said Elizabeth.

If unable to reject the horse, you would be entitled to seek damages.

Information

SEIB, tel: 01708 850027 www.seib.co.uk

Financial Ombudsman www.financial-ombudsman.org.uk

Kbis, tel: 01635 244379

Andrew Jackson, tel: 01482 325242 www.andrewjackson.co.uk

This Q&A was first published in Horse & Hound (19 March, ’09)

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Q: The recent falling out between a stud and its agent has left breeders who bought semen for artificial insemination (AI) from the agent in the lurch. Can broodmare owners protect against such commercial disputes?

CA, Devon

The dispute between a Belgian stud and its France-based British agent has left breeders who bought semen from the agent with difficulties obtaining covering certificates, passports and branding (news, 19 February). H&H asked several breeding experts for their advice to worried broodmare owners.

The Defra-approved Glenwood Stud in Northumberland imports semen from various EU states. Co-proprietor Valerie Williams believes there are many reputable semen agents available.

“However, things can go wrong,” she said. “We have encountered problems such as semen being sent from Germany by road, instead of air, and semen that has been verbally guaranteed to be sent with the necessary health certificates, when there were none available. Broodmare owners should do their homework and should also talk to the stud working with their broodmare.”

Jonathan Pett of Trojan Stud in Carmarthenshire said: “We use a couple of different semen agent and deal with some studs directly,” he explained. “We use agent for most of our imported semen purely for ease — one agent will have several studs on their books, and will sort out all the paperwork.”

Carol Brown of Gloucestershire-based semen importers, Equine AI, recommends using well-established agents who could: “Provide information on a range of stallions and their semen quality, arrange importation, ensure the required health papers accompany the semen, notify Defra, and track the delivery,” she said.

“Another option is to choose a semen agent who provides all of this, plus an artificial insemination centre — the complete package.”

David Ashby of sport horse insurers Amlin Plus believes there is no cover available to insure against a semen agent severing ties with a stud.

“However, anyone can take out prospective foal insurance from 42 days post-covering — or artificial insemination — or 60 days post-embryo transfer on a foetus,” he said.

Information

Amlin Plus, tel: 020 7423 0920 www.amlinplus.co.uk

Equine AI/Willesley Equine Clinic, tel: 01666 881026 www.equineai.co.uk

Glenwood Stud, tel: 01661 886453 www.glenwoodstud.co.uk

Trojan Stud, tel: 01267 275 676 www.trojanequine.com

This Q&A was first published in Horse & Hound (12 March, ’09)

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Q: I bought a horse from a private seller and was told he was 100% in every way. I rode him twice before buying, once in the school and then went hacking round a local park.

After a five-stage pre-purchase vetting I bought him and he was everything I had expected – until we reached a road where he was petrified.

I contacted the previous owner who told me: “When hacking out we avoided roads, but he was fine when with other horses and he didn’t mind JCBs and other vehicles around our yard.”

Not what I had previously been told, but I gave him a chance in the company of a bombproof horse, but he still panicked every time a car came near us.

Trying to be positive, I moved him to a new yard with off-road hacking, but this is a 25min drive away and more expensive.

Someone on this new yard had also tried my horse but was told he was nervous on the roads. If I had been told this I would not have bought him.

Do I have any comeback from the previous owner?

SN, Kent

The law that most frequently applies in disputes of this kind is the Sale of Goods Act 1979 (SGA) and the common law of misrepresentation. Where you are buying a horse privately, the SGA applies certain terms into the agreement – in this case, that the horse corresponds with the description given in the sale advertisement or given verbally by the seller.

“Your prospects of success in court – if that is what it comes to – will turn on the strength of the evidence you can amass to support your case compared with that of the seller,” said Mark Charter, head of the agriculture and equine team at Blake Lapthorn.

“Was the horse advertised and what exactly was said in it? Were there any witnesses to your negotiations with the seller who could vouch to who said what?”

If it can be shown that it was a fundamental term of the agreement that it should hack out quietly on roads, it may be possible to claim damages.

“However, as you have kept the horse and persevered, you may have lost your ability to rescind the contract,” explained Mark. “The basis for a claim for damages is to put the innocent party financially in the position they would have been if the issue had not arisen.

“If you can establish misrepresentation on the part of the seller – how the horse behaved when hacking in traffic – you can sue for damages for loss. However, the law categorises different types of misrepresentation – fraudulent, negligent and innocent – and your remedy will depend on which category it falls into.”

The issues in resolving a dispute such as this are:

• To collate all the relevant information eg the advertisement and your own notes, and those of any witnesses, as to who said what

• To be clear as to the outcome you require – returning your horse, selling your horse, and/or recovering compensation?

• To discuss with the seller – initially on a “without prejudice” basis – an acceptable solution. If a solution cannot be agreed, are you prepared to take court action?

• A solicitor will advise you on the economics of pursuing litigation.

Information

Blake Lapthorn, tel: 02380 857116 www.bllaw.co.uk

This Q&A was first published in Horse & Hound (12 March, ’09)

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More legal advice concerning equestrian equipment

Q: I bought a numnah and the tackshop embroidered my horse’s name on to it. Back home we tried it on with the saddle, but the embroidery was covered up and it barely fitted.

We took it back, and the retailer got out a small saddle and tried it on with the numnah, claiming the problem was our fault, not theirs. The lady told us it was full size.

Are we legally entitled to have the numnah replaced?

ST, West Midlands

Alison Goodwin, director of the tackshop in question, Diamond Saddlery, recalls an adult purchasing a saddlecloth which was embroidered with the eight letters of her son’s horse’s name.

“The lady returned the cloth explaining the saddle obscured part of the embroidery,” said Alison. “This seemed unusual, as we embroider many cloths, and are aware of leaving space for the saddle flap. I asked about the make of the saddle, style and size, and put the saddlecloth under a 17in GP saddle in the store. It was OK. I also asked the customer to pop back with the cloth and her own saddle so I could assess the problem.

“We need to know whether the saddlecloth is the incorrect size for the saddle, or whether we have stitched it incorrectly,” she explained. “However, the customer has not returned to allow us to find a solution, and we have not received any correspondence regarding this.

“This situation is extremely unusual — our in-store embroidery staff are very experienced and embroider many items on a regular basis.”

Buyers have certain statutory rights under the Sale of Goods Act and the Sale and Supply of Goods to Consumers Regulations. A buyer should expect a purchased product to be of a satisfactory quality, must be “as described” on the advertising, label or in-house promotional information, and should also be “fit for purpose”.

Where a fault occurs within six months of purchase, and when the customer requests a repair or replacement, the buyer does not have to prove the fault exists. The trader must prove the goods were not faulty. However, circumstances can affect such a claim, for example if the seller believes the customer examined the item before purchase, and checked its sizing.

Executive director of the British Equestrian Trade Association (BETA), Claire Williams, says in cases of a dispute, BETA normally refers people to the Trading Standards Institute.

“If the trader in question is a BETA member, we can offer to arbitrate a solution for both parties,” said Claire.

Information

www.tradingstandards.gov.uk

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Q: My mare was killed in her field one night when she walked under a dipped power line attached to a damaged telegraph pole.

The owner of the field has never been asked for maintenance access by the power company.

Should the local electricity board be checking the power lines regularly and are they therefore responsible for this accident?

DH, Yorkshire

This is a sad occurrence, but unfortunately not an isolated one.

Tim Price of insurers NFU Mutual told H&H that any injuries or damage arising from broken power lines might give scope for legal action against the owners of the power lines, if they were negligent or in breach of any statutory duty.

We asked a member of the Health and Safety Executive’s (HSE) electrical networks specialist team to explain the legal background.

“Owners and operators of overhead power lines, or distributors, are required to comply with certain safety regulations,” said the spokesman. “In general, these require distributors to ensure their equipment is constructed, installed, protected, used and maintained so as to prevent danger — including to livestock and domestic animals — so far as is reasonably practicable.”

Overhead lines must be a minimum height above ground for each voltage level. Distributors must make “dead” any line that does not comply with these regulations.

“All instances of an overhead line being below the statutory height are reportable to the HSE,” said the spokesman. “HSE does not as a rule get involved in claims made under civil law, however.

“Electricity networks must be inspected with sufficient frequency to ensure compliance; typically, every four to eight years for wood pole lines. These can be carried out on foot or by helicopter — using Thermovision equipment to locate problems that can then be rectified before failure occurs.

“These routine inspections may well be carried out under the provisions of the Wayleave Agreement without the landowner being made aware. It is quite possible that, for some networks, no maintenance will be required for 20 years.”

CE Electric UK is responsible for electricity distribution in Yorkshire, northern Lincolnshire and the north-east. Company spokesman Michael Sargood was unable to comment on this specific incident, but said: “General industry guidelines are that 10 per cent of the overhead line network should be inspected every year — a different 10 per cent each time.

“When CE Electric UK carries out inspections, we look at the condition of electricity pylons, the lines themselves and any equipment, such as sub stations. We also use helicopters to conduct overhead line inspection.”

The relevant distribution network operator should be the first port of call for members of the public/landowners who want to report problems such as a dipped power line.

If callers to the company are not satisfied with the response, they should contact HSE’s public information line on 0845 345 0055 for advice, information and support.

This Q&A was first published in Horse & Hound (26 February, ’09)

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Q: I have loaned a mare for four years and our formal agreement expired in October. Two years ago, I offered to buy the mare, but the owner wouldn’t sell her. The owner has since moved away and rarely contacts me.

Early in 2008, I asked to cover the mare, and thus extend the loan period, to which I didn’t receive a reply so didn’t go ahead. I have since heard nothing from the owner apart from a brief phone call in September.

I would like her to take the horse back, but will keep her if I have to. I intend to write to the owner, but where do I stand? Can I start charging her a livery fee? If she doesn’t pay, can I sell the horse to recover the debt? Could I put her on loan to someone else?

SH, Staffordshire

This is a complicated case so you should contact a solicitor immediately. However, Elizabeth Simpson, senior solicitor with Yorkshire law firm Andrew Jackson, has some advice.

The first point is in regards to breeding from the mare, which you were correct not to proceed with, as “the mare does not belong to you and you will be liable if anything goes wrong,” explained Elizabeth. “There will also be a dispute as to ownership of the foal.

“While you continue keeping the mare, you are required to take reasonable care of her. You should keep a record of expenses. But you should not loan her to anyone.”

You could sell the mare, but must first notify the owner in accordance with the Torts (Interference with Goods) Act 1977, allowing sufficient time for collection.

“You should also set out any claim you may have for payment of expenses incurred in maintaining her,” said Elizabeth. “If the owner does not contact you, or if you cannot find her, you can sell for the best price reasonably available. The sale proceeds are due to the owner, but you can deduct costs of sale.

“You should attempt to agree sums due to you in maintaining the horse, failing which it is probably best to bring a claim before the court so that you cannot be said to have unlawfully taken monies to which you were not entitled.”

If you have no luck in contacting the owner, you can apply to the court for an order for sale.

“The court may permit you to deduct the costs of sale,” said Elizabeth. “The balance is, in principle, due to the owner but you could ask the court to award you expenses if these cannot be negotiated with the owner.”

Information

Andrew Jackson, tel: 01482 325242 www.andrewjackson.co.uk

This Q&A was first published in Horse & Hound (12 February, ’09)

Q: Our neighbours stand five stallions at their stud. They are turned out in two adjoining fields to us — one of which is adjacent to our driveway.

This means we have to ride our mares past cavorting stallions to exit our property and we have already had one nasty accident doing so.

Our local environmental protection officer, who maintains the neighbours aren’t running a business, says the Environmental Protection Act offers us no protection.

He suggests we build a new drive to our property, or lead our horses down and mount them on the main road.

How can we protect ourselves legally, so we can ride our horses safely on our property?

CL, Somerset

According to the Office of Public Sector Information (OPSI), it is the duty of local authorities to regularly inspect their area for any statutory nuisances.

These include criminal offences that affect local people, such as animals, actions or noises that are prejudicial to health, or become a nuisance — whether the “nuisance” is instigated by businesses, or private individuals such as your neighbours.

OPSI stated that local authorities must decide what steps are “reasonably practicable” to investigate complaints made by a person living within its area, and assess which statutory nuisances ought to be dealt with.

According to solicitor Richard Brooks, partner in the racing and bloodstock division of law firm Withy King, it is difficult to see an immediate solution.

“Privately, the only remedy may be to sue for compensation after the proverbial horse has bolted,” Richard said. “However you’re right to consider the Environmental Protection Act 1990, which regulates pollution and ‘nuisances’.”

Section 79 of the Act specifically includes within the definition of a statutory nuisance, “any animal kept in such a place or manner as to be prejudicial to health or a nuisance”, and section 80(1) of the Act states that “where a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, it shall serve an abatement notice”.

Richard said: “As you have discovered, getting the local authority on your side is sometimes easier said than done, but I do not know why they are suggesting the neighbour must be a business before the Act can be employed for protection — abatement notices can be served on any person.

It may simply be that the Act is thought to be designed for larger scale problems, but this situation is understandably significant for you and your partner. I suggest persevering with the local environmental protection officer.”

Information

Withy King, tel: 01225 425731 www.withyking.co.uk

This article was first published in Horse & Hound (29 January, ’09)

Q: A month ago the Environment Agency began clearing a ditch in our horses’ field. Within a few days, the horses started developing ringworm-like symptoms.

A vet took skin and blood samples which revealed a secondary blood infection. He suspects some sort of poisoning.

The Environment Agency took water samples, which came back clear, but I was told the soil samples it had taken had not been analysed because it didn’t know what to look for.

Twelve horses now have symptoms and we still have no answer. The Environment Agency accepts no responsibility and I am unable to prove otherwise, but it is a coincidence that this has occurred at the same time as the ditch dredging.

What is my legal position?

SB, South Wales

According to Richard Brooks, partner in the racing and bloodstock division of law firm Withy King, a judge will need to see evidence proving that the two events are more than a coincidence.

“If an outside agency had created a risk, with the foreseeable result that your horses were injured, the agency may be held liable,” he explained. “It is unlikely to be good enough simply to tell a judge that the above scenario is too much of a coincidence. The judge would need evidence from a suitable expert. However, without knowing more, it is difficult for me to advise on the relevant area of science.

“There is a process known as ‘pre-action disclosure’, which may oblige the agency in question to produce the compelling evidence that is required to prove the case,” said Richard.

“If a court claim is being considered, the prospective claimant is permitted to demand the potential defendant produces relevant documents. The defendant cannot be forced to undertake tests and other investigations. However, if for example the Environment Agency possesses worksheets, memos and test results that relate to work done and substances — such as herbicides — used, then it should produce copies for you, even if they adversely affect the agency’s case.”

Although in theory an outside agency that had created a risk could be held liable, in this situation the Environment Agency has conducted its own investigations and found nothing linking its work to the horses’ condition.

A spokesman for the Environment Agency said: “We were very concerned about these horses’ well-being. Upon hearing of their condition, we immediately investigated this case. We have found nothing that links our work to the unfortunate condition of the horses, and hope the cause is found soon.

“Our teams carry out ditch clearance work all year round to cut the risk of flooding to thousands of people, and we take the utmost care to make sure it does not harm local wildlife or animals. We did not use any sprays at this site.

“On a separate note, our staff and contractors are fully trained to use herbicides safely and have to get written permission to use them.”

Information

Withy King, tel: 01225 425731 www.withyking.co.uk

Environment Agency, tel: 08708 506506 www.environment-agency.gov.uk

This article was first published in Horse & Hound (15 January, ’09)

Q: Out hacking the other day, I noticed that one of the fields through which I follow a bridlepath contained a bull.

Is it legal to keep a bull in a field with a bridlepath?

MW, Hampshire

Legislation rules that only beef bulls are permitted to graze on land with public access, and only if they are with heifers.

Solicitor Richard Brooks, a partner in the racing and bloodstock division of law firm Withy King, explained: “Section 59 of the Wildlife and Countryside Act 1981 bans bulls of recognised dairy breeds in all circumstances from being at large in fields crossed by public rights of way [footpaths, bridleways or byways].

“Bulls of all other breeds are also banned from such fields, unless accompanied by cows or heifers, but there are no specific prohibitions on other cattle. ‘Fields’ in this legislation does not include areas such as open fell or moorland. A breach of this law is a criminal offence, punishable by a fine,” he said.

Section three of the Health and Safety at Work Act 1974 requires employers and the self-employed to ensure, so far as is reasonably practicable, that they do not put other people, such as members of the public, at risk by their work activities.

“This applies to keeping bulls or other cattle in fields,” explained Richard. “In addition, the farmer may be liable to pay compensation to anyone who suffers an injury to themselves or their horse.

“Farmers can most certainly be found liable for accidents caused after placing livestock close to a path or bridleway, and Withy King has a number of cases of accidents involving cows.”

The website www.bridlerides.co.uk states: “We have found that bulls with females in tow are normally quite ‘peaceable’ — but take care not to come between them and their ‘harem’.

“If you find a bull whom you think is dangerous, you are entitled to consider it an obstruction — so make your way round the field at a safe distance, and let us know, so we can try to get it removed.”

A National Farmers’ Union (NFU) spokesman added: “There are circumstances in which farmers are able to keep bulls in fields crossed by public rights of way, but the facts of each situation need to be considered to fully address individual enquiries.”

Information

Withy King, tel: 01225 425731 www.withyking.co.uk

This article was first published in Horse & Hound (25 December, ’08)

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Q: I bought a kind, talented pony for my daughter to play polo on at school level. A year later, my daughter gave up and I sold the pony to another polo player.

Now, two years on, I have received a county court claim form telling me that, in his view, the mare was not as described — she was difficult to play and could only be used as a hack — and she’d been put down after she got an infection.

He is claiming £3,000 for the mare and £85 for his costs. Where do I stand?

MT, Sussex

Claims for breach of contract, such as this, can be brought within six years of the alleged breach.

“The purchaser could ordinarily either reject the pony and seek his money back or seek damages,” said Elizabeth Simpson, senior solicitor at law firm Andrew M Jackson. “If the former, this must be done promptly and two years appears an unreasonably long time. Had the pony lived, I would not expect such a claim to succeed.”

“The fact that he also allowed the pony to be put down before raising any question over its suitability for polo will, potentially, impact heavily upon the merits of his case,” said Eleanor Temple, barrister from Kings Chambers in Leeds. “Fellow polo team members, their parents or a team trainer may be able to provide helpful witness evidence from the time your daughter rode her.”

Relevant polo club records from the date of the sale of the pony could also establish when and why the pony stopped competing.

“I would also be interested in seeing the pony’s veterinary records between sale and destruction,” said Eleanor.

The purchaser may have a claim for damages if he can prove representations made about the pony were false and that he has suffered loss as a result.

“If no pre-action letter was sent to you and the proceedings were the first you knew about the matter, this would not find favour with the court as litigation should be a last resort,” added Elizabeth Simpson. “The claim is likely to end up in the small claims court where neither party could expect to recover their legal costs, if any.”

Information

• Andrew Jackson, tel: 01482 325242 www.andrewjackson.co.uk

• Kings Chambers, tel: 0113 242 1123 www.kingschambers.com

This article was first published in Horse & Hound (18 December, ’08)

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Q: I am looking to buy a new horse, but am feeling slightly apprehensive about the whole process, having read stories of “dodgy dealers” and unsuitable horses being misrepresented.

I understand the Sale of Goods Act is there to help people like me, but how could it help?

Does it cover horses sold on behalf of someone else?

SG, Worcestershire

According to Sarah Webb from solicitors Russell Jones & Walker, it is important to remember that the Sale of Goods Act 1979 only applies to a sale where the seller is “acting in the course of business”, such as a horse dealer.

The majority of one-off private horses for sale, where owners have outgrown their horses or are selling them for some other non-business reason, will not be covered by the act.

“For a sale to be in the course of business, it does not mean that the seller must necessarily be a horse dealer,” said Sarah.

“A person who sells with ‘some degree of professionalism and regularity’ can be acting in the course of business. A horse bought to bring on to sell could be described as in the course of business. Unfortunately, the answer will turn on the facts of each case.

“Obviously, a stud selling horses would be acting in the course of business, but somebody who bought a horse as a youngster, competed it for a number of years themselves and then sold it on probably would not, as it would be difficult to show regularity and that the primary purpose was business other than training and competing the horse,” she explained.

“Once you have established the sale is in the course of business, then you can rely on the important aspect of the act – that the goods must be reasonably fit for the purpose for which they are intended, provided that purpose is made known to the seller, must be of satisfactory quality and must comply with any description given of them to the buyer.”

If goods are sold by an agent and if the agent is selling in the course of business, then the provision of the act will apply – unless the seller, on whose behalf the agent is acting, is not acting in the course of business and the buyer knows that at the time of the sale, or the seller takes reasonable steps to make it known to the buyer at the time of the sale.

“This is important as obviously horses can often be sold through agents on behalf of an individual who would not normally be covered by the act,” said Sarah.

Information

Russell Jones & Walker, tel: 0800 9169015 www.rjw.co.uk

This article was first published in Horse & Hound (4 December, ’08)

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Q: We sold a home-bred filly a few years ago. We agreed with the purchaser in writing that when the mare was “put in foal” we would buy the first filly foal for an agreed price.

The present owner told us last year that she would be transferring an embryo from the mare in question into a surrogate mare and we agreed not to claim the resulting foal.

The owner did, in fact, transfer two embryos and now has a colt and a filly. Are we right to pursue a claim for the filly foal? Are embryo foals classified as being out of the mare when the mare doesn’t actually give birth?

TS, Lancashire

It depends on how your agreement with the new owner was worded, said Stuart Farr, equine lawyer at Laytons solicitors.

While it is sensible to commit the terms of your agreement to writing, it is just as important to ensure there are no ambiguities or future problems stored up in what the parties sign.

“The key issue here isn’t so much how embryos are classified but the status and enforceability of the original agreement itself,” explained Stuart.

The agreement suggests that the first filly foal would be purchased “at an agreed price”.

“While this was no doubt intended to keep both parties’ options open for the future, it actually reduces the arrangement to little more than an ‘agreement to agree’,” said Stuart.

“It is not a contract in the true sense because the payment obligation is contingent. It is not apparent the transfer of embryos was even contemplated when the original agreement was signed and this may affect your rights of recovery.”

Elizabeth Simpson from law firm Andrew Jackson added: “The seller agreed not to claim the embryo foal, irrespective of its sex but on the understanding that there would only be one.

“Therefore, if the colt was born first then I consider a court likely to find that the seller has a claim to the filly foal as being the first “out of” the mare. If the filly was born first then I think a court would find the agreement not to claim “the resulting foal” would refer to her – subject to that agreement being found to be binding.

“If the owner is prepared to put the mare in foal again – naturally or to a surrogate — you may take the view that the second filly along would do just as well.”

Information

Laytons solicitors, tel: 0161 834 2100 www.laytons.com

Andrew Jackson, tel: 01482 325242 www.andrewjackson.co.uk

This Q&A was first published in Horse & Hound (27 November, ’08)

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Q: I am an equestrian web designer and I recently set up a website for a horse dealer who has since ceased trading and gone bankrupt, owing me payment for my work.

I believe the client knew he was struggling back in June, but still kept me on — I even sub-contracted some of the work to another designer, and paid her myself.

Can I recoup my losses? I have been told it is unlikely as the company owes so many people.

I don’t have a specific insurance policy to cover this incident and work as a sole trader.

CK, Midlothian

According to Colin Davison, author and chartered accountant, the losses you suffer on your bad debt are treated as a cost against your business.

“They will reduce your tax bill,” he said. “As a basic tax payer, you will receive 20 per cent reduction in the tax and eight per cent reduction in national insurance contributions (NIC), but of course not full recovery for your losses.

“A company being insolvent and then leading to an administration process is not like personal bankruptcy,” said Colin.

“This is because it offers a potential legal recoup to you from any directors under specific situations. If the director of the company took on your services when they knew the business was insolvent and could not make its debts, the director could be personally liable. You could then chase the director for their own assets — their nice countryside retreat,

for example.

“While I would always recommend seeking legal advice, often it is the crafty methods — such as arranging to meet up with the director and threatening legal action — that will see you getting paid,” he said.

“They will be keen not to go to court, as public knowledge of this could see everyone being paid and most people in this position will simply write the lost payment off. I would, however, recommend you take a senior advisor with you if you do choose to meet with the director.”

Stuart Farr of Laytons solicitors concurs, and added: “A close look at any contractual documents in your possession may provide you with avenues to pursue the directors in their personal capacity, particularly if you can show wrongful or even fraudulent trading.

“Contractual documents are often not watertight, so you may find yourself in a position to argue that your contract was not, in fact, with the company, but rather the private individual behind it.”

Information

Cranleys, tel: 01256 830000 www.cranleys.co.uk

Laytons solicitors, tel: 0161 834 2100 www.laytons.com

This Q&A was first published in Horse & Hound (27 November, ’08)

Q: A public footpath runs through my horses’ field and my neighbour climbs over our boundary fence from his garden and through my field to access the path.

To give himself clear access, he has lowered the boundary fence, sprayed weedkiller and cut the long grass, leaving the clippings within reach of the horses.

I am worried they will escape through the lowered fence, as I would be responsible for any damage they may cause. Plus grass-cuttings are dangerous to horses if eaten.

The police told me it is a civil matter.

Can I take action against him for criminal damage and trespass, and reclaim the cost of having to replace the fence?

The RSPCA said it was unable to act unless the horses consumed enough weedkiller to show up in a blood test.

ST, Yorkshire

First, your neighbour is trespassing by crossing the field to get to the footpath, but find out for certain whether you own the boundary fence over which he is climbing.

“Provided you own the land over which your neighbour is crossing and he has no legal right of way across your property to reach the footpath, he should not be climbing over your boundary fence — provided the boundary fence belongs to you — as this amounts to trespass,” said Kerry Dovey, a solicitor in the agriculture and equine team at Blake Lapthorn.

“A practical solution to the problem would be to erect a boundary fence to the original height and put up signs stating your land is private.

“If he continues to use the fence as access, it would be worth instructing a solicitor to write a strongly worded letter threatening an application for an injunction. You need to be sure your neighbour has no legal right of access on to your land, as no doubt he would raise this in response to any solicitor’s letter.”

One option is to sue for the cost of replacing the fence but, said Kerry, “it is likely to be a small claim of less than £5,000 and therefore would not be economic to instruct solicitors to issue a claim”.

“If your horses suffer injury by eating the grass cuttings, again you could sue for damages depending on the financial loss you have endured in accordance with the economic value of your horses,” she explained.

As a horse owner, even if your neighbour maliciously cuts down your boundary fence and your horses escape, causing injury to third parties, you would still be held liable.

“Therefore, it is fundamental you try to ensure your boundary is secure to prevent the escape of the horses,” said Kerry.

“It is always advisable with land grazed by livestock that is crossed by a footpath to install a suitable gate system that allows public access along the footpath, but helps to minimise the escape of your horses — for example, two gates with a self-closing mechanism.”

Information

Blake Lapthorn, tel: 02380 857108 www.bllaw.co.uk

This Q&A was first published in Horse & Hound (20 November, ’08)

Q: OUR neighbouring horse owners choose to “herd” their horses with arm flapping and chasing, rather than leading them in and out of the fields. Our schooling ring borders their land, so when this happens, it can be distressing for us and our horses. We have asked the neighbours on numerous occasions to stop, but they say they can’t lead more than one horse in at a time. If they caused an accident could they be held responsible?

GT, Glos

AS solicitor Richard Brooks, partner in racing and bloodstock at law firm Withy King explains, giving a definitive answer in this case is difficult.

“There are two conflicting principles recognised in law. First, a man’s home is his castle, and he should not be told what to do there. Second, a man owes a duty of care to his neighbours,” he says. “This is a tricky case, and not one I would like to take all the way to trial because I can see arguments on both sides and judges are not entirely predictable.

“There is nothing inherently wrong in the neighbour’s behaviour, and it is questionable if it can be characterised as a breach of their duty of care towards the letter writer. However, if I were the ‘herder’, I would be worried to find myself in the situation of having been warned that my actions were at risk of causing an accident, only to carry on and see an accident happen. The neighbour could be held responsible for an accident caused by their actions, but the case is far from black and white,” Richard concludes.

Stuart Farr, equine specialist at Laytons solicitors, adds: “It is difficult to characterise your neighbours’ behaviour as unlawful.

“It is unlikely to be classed as a nuisance in tort law [that provides a range of circumstances in which a person may be held liable for certain types of civil wrongs].

“Nor are their actions likely to fall foul of the Animals Act legislation, or constitute a breach of duty as an occupier of land.”

“If an accident were to occur, you may be able to claim against your neighbour if their actions were the principle cause. Such a case would be decided on its particular facts and merits, and success would by no means be a certainty. It would be sensible for you to take practical precautions on your own premises to avoid the risk of an accident and to make sure that your own insurance is adequate.”

Information

• Laytons Solicitors www.laytons.com Tel: 01618 342100

• Withy King www.withyking.co.uk Tel: 01225 425731

This Q&A was first published in Horse & Hound (9 October 2008)

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I bought my first horse, a 16.1hh eight-year-old bay gelding, in August. He has exceptional stable manners and a lovely personality. Although I live in Hampshire, I bought him from a horse dealer in Scotland via the internet, with the intention of continuing my side-saddle riding and show jumping.

Before buying the horse, a BHSII friend and I both rode him and I was shown papers from a stage two vetting he’d passed two months earlier. The horse dealer said the original passport had been lost, so he’d got a duplicate.

One month after the horse was delivered, he showed signs of having a bad back, so we started to get him physiotherapy treatment. Subsequent X-rays showed that he has “bridging vental ossification” of the spine, or kissing spines, which is a permanent, untreatable condition. The vet’s advice was that he should not be ridden again.

We informed the horse dealer that the horse was no longer useable – the one thing we didn’t have insurance cover for – but the dealer refused to take the horse back and give us a refund.

I have discovered that the Scottish small claims court has a maximum claim sum of £750, which is less than the price paid for the horse, and I don’t know what I can do now.

HW

We contacted experienced equine solicitor John Armstrong, of Smail & Ewart, which is based in Biggar in the Scottish Borders, for legal advice.

He stated: “As the seller is a horse dealer, the Sale of Goods Act will apply and the buyer is entitled to a horse of merchantable quality.

“Provided the buyer’s vet is prepared to confirm that the gelding has kissing vertebrae, and that it was a pre-existing condition he was suffering with prior to purchase, the reader is entitled to reject the horse and get their money back. Failing acceptance of this by the horse dealer, the buyer’s remedy would be to pursue him through the Sheriff Court in an Ordinary Action.

“With regard to internet purchases, protection is offered by the Consumer Protection (Distance Selling) Regulations 2000, which came into effect on 31 October of the same year. The regulations give rights to consumers and impose obligations on businesses that enter into distance contracts. Most importantly, they provide a cooling off period of seven days, whether or not there is anything wrong with the goods that have been purchased.”

Information

For equine legal advice relating to Scottish law, contact Smail & Ewart

Tel: 01899 220058

This Q&A was first published in Horse & Hound (14 December, ’06)

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