© Equine & Animal Lawyers Association 2013.

The Equine & Animal Lawyers Association

If you need an Expert Witness and you don’t instruct one, you could be heading for big trouble. Read the following salutary tale

Why do I need an Expert Witness?

The Equine & Animal Lawyers Association has recently seen the appearance of a new form of enquiry seeking an expert witness to assist in suing a solicitor for professional negligence. The action arises out of a case under the Dangerous Dogs legislation where a Defendant was convicted of allowing her dog to be dangerously out of control in a public place, whereby a person was injured. The circumstances were that the dog, a German Shepherd-type mongrel had been left in a rear garden, and had escaped by unknown means. So far as the owner was concerned the garden was secure, and the dog had never escaped before. This dog was an ordinary family pet, kept in a house with small children, well fed and well cared-for. The dog was a much-loved member of the family and had never previously shown the slightest disposition towards any sort of aggression.


On the day in question the escaped dog had walked about a quarter of a mile from its home when it came across another dog. This dog turned out to be a feral stray with no known owner. When the two dogs met, an independent witness said that the feral stray immediately attacked the Defendant’s dog and there was a melee in the street. This attracted the attention of several people, one of whom, a young man, waded in to try to break up the fight. It was his evidence that whilst trying to seize the collar of the Defendant’s dog he was nipped on the hand by that dog. He did break up the fight, he said by giving the feral stray a lusty boot in the ribs, causing it to flee. That left him holding the Defendant’s dog by the collar it was wearing, which carried an identity disc.


In the meantime someone else had called the police and a police officer duly appeared. The Defendant’s dog was seized by the police and taken away to custody by the local dog warden. The Defendant was interviewed, and in due course was prosecuted. As the offence is one of strict liability the Defendant had no alternative but to plead ‘guilty’. The Defendant appeared unrepresented before a District Judge, believing that as the incident was not his fault on any conventional assessment of blame, he had little to fear. He expected a ‘slap on the wrist’ paltry fine, and expected to get his dog back.


He was to be sadly disillusioned when the District Judge said that this was an aggravated offence under the legislation, and he was of a mind to consider a custodial sentence, and have the dog destroyed. He said that dogs should not be biting anything except their food, and if they did and came before him, a destruction order could be expected. On the credit side, the District Judge recognised that the Defendant was unrepresented and was totally unprepared to deal with any of this. He adjourned the case and told the Defendant to find himself representation.


The Defendant went to a local solicitor who specialised in criminal law matters. That was when his problems got worse. The solicitor assured him that he would not receive a custodial sentence and that the District Judge was just seeking to frighten him. Custody in such a case was wholly unjustified, but the Crown Prosecution Service was seeking the destruction of the dog. The solicitor said that this was not a problem either because he could 'explain to the court that the dog was not dangerous'.


This of course was completely wrong. Any more knowledgeable  solicitor would have immediately sought the assistance of an expert witness experienced in such cases. That expert witness would have carried out an analysis of the case and an assessment of the behaviour of the dog in order to determine whether or not it was likely to be a further danger to the public. A report would have been prepared for the information of the court, and the expert should have been called to attend court to give evidence of the findings. The Defendant did not know anything about this, and trusted his solicitor.


When the case returned to the Magistrates Court the Defendant was called by his solicitor to give evidence about the dog. He did so, but when his solicitor stood up the District Judge asked where was the expert’s report, and indeed the expert witness he was expecting. The solicitor said that there was no expert witness or expert’s report forthcoming, as he had not taken any expert advice. The District Judge’s attitude was a simple one. He said that due to the ‘ineptitude’ of the solicitor, there was no independent evidence about the dog upon which he could rely. Accordingly he would make an order for the forthwith destruction of the dog, and he fined the Defendant. No order was made for disqualification.


This was a severe shock to the Defendant and his family who were severely traumatised at the loss of their beloved family pet. His wife had weeks off work suffering from stress. They immediately asked their solicitor if they could appeal this decision. The solicitor said that there was no point, as an appeal could not succeed. The dog was destroyed. After some consideration the family realised that the conduct of their solicitor left a great deal to be desired, especially in the light of the comments of the District Judge who had described him as inept. The family sought the advice of a solicitor experienced in dog cases and discovered the details of what their solicitor should have done. As the result of this advice they are now suing their original solicitor for damages for his professional negligence in not instructing an expert witness on their behalf in a concerted attempt to save their dog’s life after an incident which was not their or their dog’s fault. The second element of the claim is that they were wrongly advised against lodging an appeal against what was a manifestly unjust decision.


Unfortunately this is very far from being the first time that I have heard similar stories where solicitors through personal incompetence or systemic mis-management of cases have failed to take expert advice on animal matters. This advice is readily available from the relatively small group of experts who regularly carry out this sort of work, yet very many cases are processed every year without experts being involved. There can be no excuse for not picking up the phone to an expert in any animal case, because people who are not experienced with animals simplydon't know what they don't know! The lesson of this case is that if lawyers fail to do what is required in the representation of their clients they can expect to be sued for professional negligence, together with the attendant risks of professional disciplinary proceedings.