Guildford Borough Council v Hein

Section 222(1) of the Local Government Act 1972 permits a local authority to seek a civil injunction to prevent threatened or continuing criminal offending. The jurisdiction is exceptional and must be exercised cautiously. Deliberate and flagrant defiance is an important example, but is not a precondition. The court must be satisfied that prosecution is likely to be ineffective in achieving the statutory public-interest purpose. A civil court cannot use the jurisdiction to fill gaps in a detailed criminal scheme by transferring ownership or authorising permanent disposal of animals without legal foundation. Once a statutory disqualification expires, animals must generally be returned. Where a lawful injunction prevents return, reasonable future care costs may potentially be recoverable, but the claim in this case failed.

Guildford Borough Council brought proceedings under section 222 of the Local Government Act 1972 after statutory disqualifications preventing Dr Hein from having custody of dogs expired. The Council sought an injunction preventing her from keeping dogs at Amberwell, a declaration permitting it to sell or dispose of 26 dogs, and recovery of care costs.

On 28 October 2004 the Guildford County Court restricted Dr Hein to three dogs of the same gender, made the declaration, and dismissed the claim for damages. Both parties appealed. The central issues were whether civil proceedings could prevent threatened offending under the criminal law, whether the court could fill gaps in the animal-protection and dog-breeding legislation, and whether the Council could recover the dogs’ care costs.

The appeal was allowed in part by a majority comprising Lord Justice Clarke and Waller LJ. The declaration was set aside. The injunction restricting Dr Hein to no more than three dogs of the same gender was upheld, subject to consideration of whether the numerical limit should be varied. The Council’s cross-appeal concerning care costs was dismissed. Sir Martin Nourse would have discharged the injunction as well, but that view did not command the majority.

1. Under section 222(1) of the Local Government Act 1972, a local authority may institute and maintain civil proceedings to enforce obedience to the criminal law. The jurisdiction must be exercised exceptionally and with great caution. There must be more than a mere infringement, and the court must be able reasonably to infer that unlawful operations will continue unless effectively restrained and that prosecution is likely to be ineffective. The principles in Stoke-on-Trent City Council v B&Q (Retail) Ltd [1984] AC 754, City of London Corporation v Bovis Construction Ltd [1992] 3 All ER 697 and the later authorities supported that approach.
2. Deliberate and flagrant flouting of the law is an important factor, but it is not a necessary condition for relief. A quia timet injunction may be granted where the facts show that criminal proceedings are unlikely to secure the statutory public-interest purpose. The risk that the return of 26 dogs would lead to unlicensed breeding and possible animal suffering made this an exceptional case.
3. The court could not use section 222 to fill gaps in the criminal legislation. The Breeding of Dogs Act 1973 permitted ancillary orders concerning custody and care, but did not authorise permanent arrangements for disposal or transfer of ownership. The declaration therefore lacked a statutory or common-law foundation. The approach was consistent with Worcestershire County Council v Tongue [2004] EWCA 140 and the caution against parallel judicial creativity expressed in Chief Constable of Leicestershire v M [1989] 1 WLR 20.
4. Once the disqualification expired, the Council had no right to retain the dogs merely because their return might lead to further offending. Its proper remedy was to seek an injunction. The injunction, once granted, entitled the Council to refuse redelivery except pursuant to arrangements which complied with its terms.
5. The Council could not recover the claimed care costs for the period after expiry because the dogs ought to have been returned. Nor could it rely on the rejected statutory application for payment made under the 1973 Act. The cross-appeal was accordingly dismissed.
6. Obiter, the majority indicated that if an injunction prevented return and Dr Hein refused to give directions for delivery to suitable persons, the Council might have a correlative right to reasonable future care costs, and possibly reasonable remuneration, under principles of necessity and bailment.

• Court of Appeal (Civil Division) allowed Dr Hein’s appeal in part, set aside the declaration, upheld the injunction subject to possible variation, and dismissed the Council’s cross-appeal: [2005] EWCA Civ 979.
• Guildford County Court, before His Honour Michael Cook sitting as Deputy Circuit Judge, granted an injunction limiting Dr Hein to three dogs of the same gender, made a declaration concerning the 26 dogs, dismissed the Council’s claim for damages, and ordered Dr Hein to pay 80 per cent of the Council’s costs.