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Is the law an 'undomesticated animal', writes Kim Franklin?

In this column we go from the sublime to the ridiculous. Last week we looked at Mr Justice Jackson's judgment in the new Wembley Stadium dispute between Multiplex and their former steelwork contractors, Cleveland Bridge. The extensive judgment, delivered in 16 parts, dealt with 10 preliminary issues relevant to a highly complex commercial dispute with many millions of pounds at stake. The judge told the parties that neither of them had won an outright victory and that, with the assistance of the court's decision, it may now be possible for them to arrive at an overall settlement. This is what the law is for - to provide a framework for disputing parties to resolve matters themselves - failing which to decide the dispute for them.

The appeal court was required to carry out precisely the same function in Broughton v Bower (Judgment 25.05.06).

Here the dispute was not about a multi-million pound contract for a major national project. It was about the meaning of the words 'undomesticated animals' in an agreement between neighbours. The claimant, Lady Delves Broughton, was the freehold owner of Doddington Cottage in Doddington Park, Nantwich, Cheshire. The defendants owned Demesne House which was subject to several restrictive covenants imposed for the protection of the neighbouring cottage. One of the covenants was that 'no pigeons or any undomesticated animals' would be kept on the property.

The parties fell out over the use of a right of way, boundary fences and the usual stuff of disputes between neighbours.

In subsequent court proceedings the claimant complained that the defendants were keeping racehorses and geese, which she said, were not 'domesticated animals'. The defendants' agreement to stop keeping horses, ponies and geese did not bring an end to the dispute and the judge found that the defendants had seven turkeys, four sheep, three bullocks, 18 ducks and three peacocks. Were they 'undomesticated animals'?

The judge gave the term a limited interpretation and held that, as none of the animals were akin to pets, the defendants were not entitled to keep them.

The Court of Appeal disagreed and, demonstrating the value of a traditional education at times like this, pointed out that 'domesticated' is the past participle of a transitive verb with an ordinary meaning in the English language, namely 'to accustom an animal to being kept by humans'. Provided therefore that the animal was of a species accustomed to being kept by or to living with humans, brought under their control and tamed, it did not have to live in the house or be a pet.

This represented something of a reprieve for the menagerie.

It also illustrates the wide range of issues that the courts are called upon deal with, thoroughly and fairly, whether they like it or not, however ridiculous the dispute. As always it is the warring parties, not the law, that is an ass, or a turkey or bullocks, as the case may be.

Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers in London. Visit www.crownofficechambers. com

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