Dogs and property throw up some of the more unusual and difficult issues on which a police lawyer is asked to advise. In the decision of Henderson v Comr of Police of the Metropolis [2018] EWHC 666 (Admin) and the subsequent costs decision at [2018] EWHC 1092 (Admin), the court visited two issues - the standing of a person to intervene in a case concerning the destruction of a potentially prohibited breed and kennelling costs during the course of an appeal by way of case stated / judicial review to the High Court.

This all goes back to the police’s finding a pitbull terrier – which is a prohibited dog contrary to the Dangerous Dogs Act 1991. It had been owned by a Mr Flynn who, the court noted, said that he had sold the dog some time before but could not recall to whom. The police accordingly brought an application for destruction of the dog under s4B(1)(a). In stepped a potential saviour – who had no propriety interest in (and had not met) the dog but who wanted to offer her a home.

The essential issue was whether a non-owner of a dog had standing either to be joined to the application so as to argue that the dog was not a prohibited breed or as a person being “in charge” of the dog for the purpose of submitting that they could rehouse it so as to avoid its destruction.

The court held:

- Standing on the issue of whether the dog was a pit bull was limited either to the owner or to those able to demonstrate an Article 8 right, which would include some persons in charge of the dog for the time being.

- On the court’s determination of whether or not the dog was a pit bull, a person who had never owned, possessed or met her could fall within the definition of a “person for the time being in charge” based on the decision in Webb v Chief Constable of Avon and Somerset [2017] EWHC 3311 – for the purpose of giving it a home and avoiding an immediate order for destruction.

- Only the owner of the dog or a person who was “for the time being in charge” of it had standing to argue that the dog should not be destroyed.

The matter was remitted back to the magistrates’ court. However – the costs order is what may interest police solicitors.

The appellant had lost the central point of whether she had standing to argue that the dog was not a pit bull. Having regard to Senior Courts Act 1981 s51(1) and CPR 44.2, the court held that the costs of the appeal fell within s51(1), being “the costs of and incidental to all the proceedings in… the High Court.” The Commissioner was, therefore, awarded her costs of the action.

As to the kennelling costs, the court held that the Commissioner had no alternative but to incur them additionally whilst the appeal ran its course. Accordingly, they were properly to be regarded as incidental to the proceedings. Although costs were in the court’s discretion, it was right to award them since the appellant would have been aware that pursing the appeal would cause them to be incurred. The court therefore awarded the Commissioner additional kennelling costs occasioned by the appellant's action.

George Thomas acted for the Commissioner in the High Court.