John Potts, The Alpaca Stud
January 5, 2009, the date of the attack, seems a long time ago. The resolution was finally achieved on December 6, 2011.
The following is a guide to the steps you can take to ensure the dog owner is prosecuted and how you can achieve recompense for your loss. You will need stamina, patience and a certain amount of money (which you should recover) if you are to see the process out.
Our attack took place during that spell of freezing and snowy weather nearly 2 years ago. The attack was by an Akita crossbreed (a Japanese hunting dog) and a very old Labrador. Difficult to believe? Well, we caught it in action-and it wasn?t pretty. Any dog can be led and that is what happened in this case. The dogs ?had history?: 3 or 4 previous sheep attacks, including the sheep of a local magistrate, but in every case either the police or the CPS gave up after months of statement taking.
First lesson to be learned: you cannot give the case to the police or the professionals, sit back and leave it to them. Odds are nothing will happen or time limits will expire. You have to direct, chivvy and even threaten them. In my case I reported one police sergeant to the IPCC (Independent Police Complaints Commission) who investigated and wrapped his knuckles (I can?t believe this is why I am now regularly followed to the village by a police car monitoring my speed!).
We were fortunate (if that is the right term) in witnessing the attack and in catching the dogs, so there was no squirm room as to who had done it. Despite this we still faced a defence that ?my lovely little pooches would not have done that!? The first piece of advice is to try and suppress the emotion of the event and try to gather as much evidence as possible at the time: photographs, statements from witnesses/passers-by, and, if possible, details of the dogs-even if you have to set off in pursuit. Most dog owners will deny culpability to protect their animals often because they cannot believe that ?their old Labrador? could do such a thing.
Next, grit your teeth and call the police. Now you will have to be strong and not take ?no? for an answer. Some of the statements we faced were: ?have you got any evidence as there is not much point in coming out otherwise?; ?is there any blood!?;?have you found any cigarette ends or chewing gum!?;?we can?t come out in these conditions until a 4-wheel drive vehicle is available. Maybe tomorrow.?
We housed the killer dogs and fed and watered them for 2 days until the police deigned to come out. I had insisted that the dogs? owner came with them as I wanted her to see what had been done by her dogs which she refused to secure. As she was collecting her well-fed dogs we dragged 2 of the eviscerated carcases into the barn. The police sergeant exploded: ?you can?t bring those in here with women present!? He tried physically to stop us until I reminded him that he was a visitor on my farm and his action constituted an assault. Without more ado he ordered his officers into the 4 wheel drive and told us if we wanted any help from the police we should go to the local station. This is the Sergeant who should now not be in line for promotion.
The police were reluctant to proceed, citing the old chestnut that alpacas were not covered by The Animals Act 1971. I finally managed to make contact with the CPS and directed them to The Dogs Act 1871, Section 2 of which is still good law and provides a clear route for a prosecution to take place:
2 Dangerous dogs may be destroyed.
Any court of summary jurisdiction may take cognizance of a complaint that a dog is dangerous, and not kept under proper control, and if it appears to the court having cognizance of such complaint that such dog is dangerous, the court may make an order in a summary way directing the dog to be kept by the owner under proper control or destroyed.
Eventually the prosecution commenced and, many months later, concluded in the Hayward?s Heath Magistrates Court. The owner of the dogs pleaded guilty and received a small fine of £300. The Labrador was ordered to be muzzled. The owner had taken advantage of old case law and gave the hunting dog to a friend. She did not inform the police until more than 6 months after the offence. As the attack constituted a summary offence and had to be prosecuted within 6 months it was then too late for the police to prosecute the new ?owner.? They could have challenged the ?disposal? of the dog on the basis that it was not a bona fide sale/transfer but only done to pervert the course of justice, but they chose not to do so. The Labrador has since been seen running loose?unmuzzled.
As a retired lawyer I also decided to issue civil proceedings against the owner for the losses we had suffered (3 young boys in the potential stud group and a fourth found days later, when the bad weather cleared, in nearby woods where it must have been chased, wounded and /or killed). As expected the case was moved from London to the Brighton District Registry. I had started the claim in the High Court where the costs are higher but as the amount claimed exceeded £50,000 I had the right to do so. My reason was that, if it came to enforcement, the High Court Sheriff is much more efficient (and aggressive) that the Bailiffs who enforce for the County Courts.
A defence was lodged at the last minute and further delays ensued as the Defendant?s household insurers took over the claim. I could have objected as if Insurers had not been told of the previous attacks by these dogs they would probably have refused cover. However, it was not in my interests to do so as I knew that if I proved my case Insurers, at least would have some money! I also knew from previous experience that insurers would run the case to the door of the court, if not beyond. This is the way they usually act hoping that the Claimant gets fed up or cannot afford solicitors? costs over the months or years before the case goes to court. I was not wrong. Delay, delay, delay. Also, despite the finding of guilt in the criminal courts the Defendant (through Insurers) did not admit liability (subject to quantum) for another 6 months, adding to the costs. When I threatened to strike out the Defence they suggested, they would remove cover from the Claimant in that event as she was not co-operating and causing the delay. I still made the application at the next case conference in front of a District Judge. During the hearing he found out that I was legally qualified and I was told:? Mr. Potts, we are not in London now, we will deal with this our way!? A long list of Directions was ordered-most of which were, in my opinion, unnecessary. The timetable for these directions to be complied with stretched until August 2011. Exactly what the Insurers would have wanted-another 16 months of solicitors? costs to deter the Claimant. Every direction thereafter involved delay by the Defendant!
Expert witnesses were required. I instructed Mary-Jo Smith of Bozedown Alpacas, our main competitors, both for her expertise and as someone who no one could suggest would do us any favours. Reports were put in and a meeting of experts had to be held. The Defendant?s expert was someone who had worked on a government agricultural farm and I don?t believe had ever seen an alpaca. Mary-Jo examined the fleeces of the dead young stud males, their pedigrees and also went through the other boys in their group. The Defendant?s expert did not visit us. He allegedly went through the animals on Alpaca Seller and averaged the price of males! Mary-Jo?s opinion on value was £10,000-£20,000 per alpaca. The Defendant: £830 per alpaca. At their meeting he revised his opinion to between £2000 and £12000 per alpaca.
A few days before the hearing, after I had instructed a solicitor and barrister, as I had to go in the witness box, we received an offer of £15,500 which I turned down. On the day before the hearing this was increased to £20,000. Again I declined. There is a risk with turning down offers as they were made under the Rule which puts you at risk for the other side?s costs from that date if you do not achieve an award greater than that offered. The evening before the hearing the offer was improved to £30,000. I decided to go ahead to assess how the court would take the evidence-although I said I would accept £35000.
I spent about 1 ½ hours in the witness box and I will admit that the Defendant?s barrister was very good. It became clear that we would probably not succeed in our claim for the 4th alpaca although there was no doubt in our minds that it was caused by the dog attack.
At the lunch recess we informed the Defendants that we would accept £30,000 if it was still on the table. It was and an Order was made by consent. The Defendant will also have to pay our costs, to be taxed by the court if not agreed. As I no longer keep a practicing certificate I will probably receive no costs for my time. However, with the court costs, my barrister and a solicitor for a month the costs were just under 30,000!
No one won. We were slightly out of pocket on our valuations and I had put in legal work over 2 years. The Insurer?s tactics, in this case, did not pay off. It will have cost them around £60,000 for a case they could have settled for £30,000, or maybe less, 2 years ago. However, if insurers had not been involved I am sure a Defendant in person would have settled long ago.
So, if you have a dog attack, there are ways to have the dog owner prosecuted and ways to claim compensation, if you have the resolve to do so?and I think it is important to do so for the industry as these cases will become known.
If you suffer an attack I am very happy to offer advice and encouragement over the telephone but I cannot run the case, as I am no longer in practice.