7 April 2021 by

Pendragon v Coom [2021] EW Misc 4 CC (22 March 2021)

As we all know, the acquisition of puppies during lockdown has gone through the roof with the inevitable sad consequences of remorse followed by neglect and even abandonment. Dog theft has spiralled as the market responds by escalating the price of pedigree puppies.

But this case involved a different issue that could have arisen at any time (and indeed the relevant transaction took place over a year before the pandemic hit). The facts can be summarised quite briefly.

On 21 June 2018 the claimant bought an Old English Sheepdog puppy for £1000 from a professional breeder, Ms Pendragon. Ms Coom subsequently discovered that her puppy suffered from two conditions, latent at birth but which manifested themselves within months: hip dysplasia and diabetes.

Both are common conditions. Hip dysplasia is a hereditary disorder which causes the ligaments supporting the hip joints to become lax, resulting in the joints becoming unstable. The instability causes the ball and socket to become ill-fitting; this leads to abnormal wear of the joint and to slight dislocation and can cause pain and suffering in the dog. In milder cases, the condition may be managed with medication. In severe cases, total hip replacement is required.

The best way of preventing hereditary hip dysplasia is to screen breeding dogs for the disease, and screening leads to recognised hip scores, which are awarded on the basis of specialist interpretation of radiographs. The lower the score, the greater the chance of progeny having serviceable hips; a higher score increases the likelihood of the inheritance of genes that may result in hip dysplasia.

Diabetes insipidus in dogs is a disorder of the pituitary gland. It causes urine to be very dilute, and symptoms may include excessive urination and drinking. The condition may be due to a birth defect, trauma or a tumour of the pituitary gland, or it may have no identifiable cause. The condition can begin at any time between 7 weeks and 14 years of age. Treatment is typically by medication. Symptoms usually disappear quickly after the start of treatment, but the condition is life-long.

The puppy (“Lady”) had not been registered at the Kennel Club. She had been born as a result of accidental mating between her dam and her sire. An endorsement had been placed against the registration of the dam, which prevented registration of her progeny. Ms Coom knew that her puppy was not registered at the Kennel Club. This did not concern her, as she did not want to show Lady; she wanted her as a pet. The price for Lady reflected the lack of registration. Ms Coom knew the reason why Lady was not registered.

Before the sale, the breeder, Ms Pendragon, had tested Lady’s dam for her hip score. Lady’s mother did not suffer the condition but the test produced a very high score, which meant that her puppies were at risk of developing dysplasia. There was some factual dispute over whether Ms Pendragon knew the result of the test before the sale. Ms Coom maintained that if she had been told that the test results were high, or that it appeared likely that the test results would be high, she would not have bought Lady. Both the dysplasia and the diabetes were diagnosed in early 2019.

Ms Coom wrote to Ms Pendragon shortly after these conditions manifested themselves, complaining that “the goods” were not of satisfactory quality and requesting £1,000 as “a percentage of expected and already paid vet bills which is 20% of insurance monies I have to pay.” Ms Pendragon replied on 25 March 2019, saying, “any passing of money to you would involve your bitch being returned back to me.” Ms Coom declined that offer.
In May 2019 Lady underwent a total hip replacement but further surgery was required after one of the new hips dislocated.

Ms Coom commenced proceedings under the Consumer Rights Act 2015 in June 2019. She accepted that she had been aware the puppy was below market price because she had no pedigree papers, a matter which did not concern her at the time as she wanted a pet, not a show dog from which she intended to breed. She claimed the costs of the operation and future surgery (“repair”) and the costs of medication for diabetes (over and above what she was able to claim back from insurance). She claimed £5,000, being the sum of (1) £1,000 (for “% of insurance claim for diabetes insipidus, because she “wasn’t informed of possible illness, resulting in medications for life”) and (2) £4,000 (for “% of insurance claim on operation total hip replace on dog congenital should have been disclosed as a fault when selling puppy”). These claims only represented Ms Coom’s uninsured expenditure, 20% of the total sum.

Ms Coom’s expert report disclosed that it was not the practice of the vast majority of veterinary surgeons to discuss the results of radiographs taken to identify hip dysplasia and therefore it would have been reasonable to expect Ms Pendragon to wait until the specialists’ report had come in. The expert did opine that the treatment for both the hip dysplasia and the diabetes had been reasonable.

The judgment under appeal

The case before the District Court Judge at the County Court in Merthyr Tydfil was based on Chapter 2 of Part 1 of the Consumer Rights Act, which applies where there has been an agreement between a trader and consumer for the trader to supply goods under a sales contract. “Goods” means any tangible moveable items, and these are to be of satisfactory quality, defined under Section 9. The Act includes by way of remedy both the right to reject the goods and receive a refund of the price, although it may be open to a consumer to claim damages instead of a refund.

The DJ was at pains to emphasise that this was not a case of dishonesty, and that the parties had done their best to help him reach a decision. However he did find that Ms Pendragon had made a misrepresentation in that she failed to disclose the dam’s high hip score to Ms Coom and thereby represented Lady as being a healthy puppy. He held that Lady was not of satisfactory quality for the purposes of section 9 of CRA, by reason of her hip dysplasia, though not of her diabetes. He held: (1) by implication, that Ms Coom was entitled to refuse Ms Pendragon’s offer to take Lady back; (2) that she had a “right to repair the dog”, provided the cost of repair were “proportionate in value”; and (3) that she was entitled under section 24(2) of CRA to “a reduction in price up to a full refund”. Accordingly, he awarded to Ms Coom £4006.11 in damages and £1672 for costs, court fees and the expert report.

The Appeal

There were several grounds of appeal, only a couple of which concern us here. The appellant contended that the District Judge had made a substantial procedural error in permitting Ms Coom to advance a case in misrepresentation that had not been pleaded, and that this misrepresentation open to the judge on the evidence. Ms Pendragon also argued that the judge had erred in law in that he set the standard of suitability under section 9 of CRA impossibly high and that he had erred in law by awarding damages for losses that were insufficiently pleaded or proved.

HHJ Keyser QC, sitting as a High Court Judge, found that the treatment by the court below of the question of misrepresentation was “problematic”, even allowing for the leeway that must be given to litigants in person filling out small claims forms. The DJ had commented that “the defendant, in knowing of and failing to disclose prior to sale the existence of the puppy’s underlying health condition and defect, misrepresented the puppy as a healthy puppy.” As it stood, that was a finding of non-disclosure rather than of misrepresentation. The puppy did indeed have an underlying health condition and defect, although Ms Pendragon did not know of it at the time of sale.

Turning to the first ground of appeal, the judge observed that the test of “satisfactory quality” is ultimately the test of conformity to the “standard that a reasonable person would consider satisfactory”. The condition of hip dysplasia, latent at the point of sale, did not mean that the animal’s condition was unsatisfactory for the purposes of section 9(1).

The price paid for Lady reflected the fact that she was suitable as a pet but not for breeding purposes, but the evidence does not show that it reflected any discount for the risk of a particular defect or condition.

The second ground of appeal was that the judge had erred in law in that he made an order for repair when repair was not possible and was therefore not available under section 23 of CRA. HHJ Keyser agreed. The consumer’s “right to repair” under section 23 of the CRA is not a right to carry out a repair but a right to have a repair carried out by the trader. In the expression “right to repair or replacement”, the words “repair” and “replacement” are alternatives. He found that the award made by the Judge below in respect of veterinary bills could be justified, if at all, “only as an award of common law damages for breach of contract”.

The appellant’s arguments relating to damage encapsulated the question as to whether the judge below had been right to award damages of £3,006.11 in respect of the cost of veterinary treatment of a puppy that he found to have no monetary value. Ms Coom’s claim to recover her expenditure on veterinary fees was advanced on the alternative bases of the “right to repair” in section 23 and common law damages. The problem with damages in this context is that the typical cases where cost of repair is adopted as the appropriate measure of damage are those involving defective building, where the presumptive measure of damages is the cost of cure.

As for the remedies that might actually have been available under section 23 (the “right to [require the trader to effect] repair” and the “right to replacement”), Ms Coom did not purport to exercise either of them. On the facts of this case, it is clear that she could not have done so, because Ms Pendragon could neither provide replacement goods nor effect a repair of Lady within the terms of section 23(8) of CRA. However, if the cost of veterinary fees had been, as it was advanced as being, within the scope of the statutory right to repair, it would have been permissible only if it were not disproportionate to replacement: section 23(3)(b). The notional value of a conforming dog would have been £1,000. The cost of the supposed “repair” (veterinary treatment) would have been about £9,500; it would, of course, be the total cost of the treatment, not an uninsured element of that cost. That would clearly have been disproportionate to replacement. In fact, the comparison does not fall to be made. The point is nevertheless of interest when considering whether the veterinary fees could properly be the appropriate measure, or quantum, of damages. [para 72]

The basic problem was that the cost of remedial works (the veterinary bills) was an inappropriate measure of damages for the sale of a “defective chattel”, especially when the difference between the value of the goods sold and the value they would have had if in conformity with the contract was reflected in the award of a price reduction. [para 75]

The reasonable course for Ms Coom, concluded HHJ Keyser, was to exercise her statutory right to reject the puppy. She would then have been entitled to recover the price paid for Lady. She might also have been entitled to recover some damages. She would, anyway, have avoided “substantial expense that was quite out of proportion to the value of the dog.”[para 78]

HHJ Keyser accepted Ms Coom’s statement that she was attached to her pet. What he did not accept that this “made it reasonable to retain the animal at an expense that was disproportionate to its value” and that she was most unlikely to have considered incurring “without recourse to insurance and to a third party to pick up the bill”. The question was whether, having decided not to exercise the right of rejection but instead to retain Lady, Ms Coom can recover damages in respect of the expenses for which she would have been entitled to compensation if she had exercised the right of rejection. In the judge’s view, she could not.

Ms Coom should be entitled in these proceedings to recover in respect of the fees that had been incurred by the end of March 2019 in respect of the hip dysplasia but not otherwise.

Comment

This conclusion, though consistent with consumer and contract law, strikes a discordant note in current times. In recent months a petition has circulated the country calling for a specific offence for dog theft, with 8 years minimum sentencing and a fine of at least £5,000. The idea is that companion animals occupy a position between children and chattels, and that the theft of a dog, whilst not a kidnap, should not be equilibrated to the theft of a bicycle or a similar object.

Dogs are like members of the family to many people and current laws do not reflect this. Dogs are a support network for so many, a family member, a lifeline.

The petition has of today’s date reached nearly 300,000 signatures, three times the number requisite for consideration for parliamentary debate. Any freshly bereaved dog owner, or, worse, one who has been victim of dog theft, does not react well to the innocent question “when are you going to get another one?” This kind of enquiry, however well intentioned, invariably comes from someone who has not formed an attachment to a dog. These social animals, whose bond with homo sapiens arguably dates back 14,000 years (long before the establishment of agriculture), are not replaceable chattels.