December 2012 – Not A Scheme Of Merriment

Author: Mitchells Roberton
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  • Being the month of Christmas there is, even in legal circles, an inclination to merriment. But Dr Johnson has warned that “nothing is more hopeless than a scheme of merriment”. Taking heed of that warning this Bullet Point Update does not aspire (even) to read like a long-winded Christmas cracker joke, but some levity may nevertheless be allowed.
  • Judicial opinions might not be considered a promising source for even the smallest beam. As the late Lord Rodger of Earlsferry, once Scotland’s most senior judge, said:

“the judges in the Court of Session today are not likely to be criticised for undue use of humour in their opinions. On the rare occasions when such a comet makes an appearance in the Edinburgh firmament, it transits so quickly that an observer might easily miss it.”

  • All the same, if one looks, there is occasionally enough to raise a smile. Two of the cases mentioned below concern animals: a cow, and a dog. No doubt exhaustive researches could unearth a case involving a reindeer but, realistically, the reindeer would turn out to be a manufactured one; and that would only disappoint. The cow and the dog were real, and we must make do with them.
  • The third case mentioned below (Baigent & Anor. v The Random House Group Limited) contains more of a puzzle than humour as such. But puzzles have a place at Christmas too.

The cow


  • The cow in Cameron v Hamilton’s Auction Marts. Ltd had been delivered by lorry to an auction market. Rattled by the prospect of an uncertain future, she escaped. In her escape, she damaged a nearby shop and some of the shopkeeper’s goods. The shopkeeper raised an action of damages against the auctioneers and against the farmer who owned the cow.
  • The facts were more remarkable than that dry summary suggests. The cow broke through a gate and escaped into the street. There she climbed a stairway above a shop.  The upper floor of the shop was not built for cows. She fell through into the shop below. There, in her struggles, she turned on a tap, causing the shop to be flooded. The shopkeeper’s goods were damaged. The action of damages against both the auctioneers and the farmer failed. The judge summed things up thus:

“One cannot help sympathising with the [shopkeeper] in her loss, but I feel forced to the conclusion that a gate-crashing, stair-climbing, floor-bursting, tap-turning cow is something sui generis, for whose depredations the law affords no remedy unless there was foreknowledge of some such propensities.”

The dog


  • The facts in Welsh v Brady were not so remarkable. Here a dog walker, Ms Welsh, raised an action of damages against Mr Brady, another dog walker, for a severe knee injury she suffered when Mr Brady’s black labrador “Ebony” (named perhaps somewhat unimaginatively) crashed into her when running at speed. Ms Welsh sued for £160,000.
  • The point at issue focused on section 1(1)(b) of the Animals (Scotland) Act 1987. This says (emphasis added):

“…a person shall be liable for any injury or damage caused by an animal if—

(b)          the animal belongs to a species whose members generally are by virtue of their physical attributes or habits likely (unless controlled or restrained) to injure severely or kill persons or animals, or damage property to a material extent; and…”

  • The court put the question thus:

“Are fully grown black labradors, by virtue of their physical attributes or habits, likely (unless controlled or restrained) to injure severely or kill persons or animals?”

  • It may not surprise many to learn that the court’s answer was no.
  • There were various submissions by the lawyers presenting the case as to the meaning of the word “likely”: there were references to the meaning of “likely” in the Factories Act 1961;  in the Wildlife and Countryside Act 1981; and in the Animals Act 1971.
  • The court seems to have been unimpressed by all this agonising over the word, declaring “likely” to be in ordinary usage and having a range of connotations, depending on the speaker and the context. The court concluded with the observation:

“For our part, we do not think it “likely” that we will assist others in applying the [Animals (Scotland) Act 1987] by proposing a definition of the word which the statutory draughtsman has not thought it necessary or appropriate to provide.”

The code-setter judge


  • Mention of the Da Vinci Code may not be very Christmassy. But in the 2006 case against its author Dan Brown for plagiarism, the judge could not resist inserting a coded message of his own into his judgment. The code was eventually broken by a media lawyer and the judgment’s hidden message revealed.
  • The  case was then appealed. One might have thought the Appeal Court judges in 2007 would have made some critical remarks about the lower court judge’s fun and games in his judgment with coded messages. But no. This was their response:


“Not surprisingly after a lengthy trial, [the lower court’s] judgment is long, running to some 70 pages. Remarkably, [the lower court judge] delivered it less than three weeks after the end of the hearing. As was noted at the time, he was prompted by the extensive use in [the Da Vinci Code] of codes, and no doubt by his own interest in such things, to incorporate a coded message in his judgment, on which nothing turns. The judgment is not easy to read or to understand. It might have been preferable for him to have allowed himself more time for the preparation, checking and revision of the judgment.”

  • So, whilst there is some criticism of the drafting of the judgment there is no hint of censure in relation to the coded message lurking within it.

There is little of Santa Claus’ “ho-ho-ho” about any of the cases above; but maybe at least a little Christmas tee-hee.


Note: This material is for Christmas purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Paul Neilly:



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