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IN THE SUPREME COURT OF GIBRALTAR

Claim No 2015-Extraord-001
BETWEEN:
PAPA BEAR
Claimant
-andGOLDIE LOCKS
(Female)
Defendant

FESTIVE JUDGMENT
Ms Faerie Counsell for the Claimant
The Defendant did not appear and was not represented
CLAUS, Ag J:
1. This is an application for alternative service on the defendant (Ms
Locks).

2. The facts fall into a small compass. The claimant (Mr Bear)
claims damages against Ms Locks arising from an incident in
which Ms Locks is alleged to have trespassed on Mr Bears house,
destroyed an armchair, ate a quantity of porridge and slept in the
bed of Mr Bears son. These latter two matters are, I think, more
by way of aggravating the damages claimed for the trespass to
land, in view of the likely small size of any independent damages
claim for the conversion of the porridge and for the trespass to
goods resulting from the use of the bed.

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3. Ms Counsell, as is her duty on an ex parte application (see R v
General Commissioners for the Purposes of the Income Tax Acts v
Princess Edmond de Polignac [1917] 1 KB 486 and Memory
Corporation plc v Siddhu (No 2) [2000] 1 WLR 1443) draws one
issue to my attention. Can her client, being a bear, sue in the
courts of Gibraltar?

4. The capacity of a bear, or indeed any other animal, to sue has not
been the subject of any definitive decision of the Gibraltarian
Courts. There is, however, some relevant authority on the matter.

5. In Pramatha Nath Mullick v Pradyumma Kumar Mullick (1925)


52 Ind App 245 the Privy Council held that an Hindu idol had
legal personality and could sue and be sued. The dispute was as to
which of two brothers was entitled to possession of the idol on
their mothers death. The Privy Council decided that, since the
idol has legal personality, it was really up to the idol with which
brother it wished to reside. (Their Lordships did not say how the
idols wishes in this regard were to be ascertained.)

6. This Court would normally follow decisions of the Privy Council,


since it is the highest Court of Gibraltar. In my judgment an
animal, particularly a higher mammal such as a bear, is clearly a
fortiori the inanimate materials of which the idol was physically
formed.

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7. The only English case dealing with the topic, Grenouille v
National Union of Seamen, was a decision of a Court of Appeal
over which Lord Denning MR presided. The Court held that a
frog had locus standi to sue in the English Courts. Unfortunately
the decision was made whilst The Times newspaper was not being
published and did not attract the attention of the mainstream series
of law reports. However, a report of the case appeared in the Not
Yet-The-Times newspaper for August 1979. That report has been
reprinted in Denning, The Family Story (1981) at 219.

8. The headnote reads:


A frog was a person in law and accordingly had the necessary
locus standi to bring injunction proceedings before the courts,
especially where the respondent was a wicked and
irresponsible trade union. The Court of Appeal so held in
allowing an appeal by Mr Grenouille, a frog, of Balls Pond,
against a decision by Woolf J refusing to grant an injunction
restraining the National Union of Seamen from mounting a
picket around the appellants pond.
Lord Denning MR applied a decision by the deputy magistrate of
East Tonga (South Sea Reports, 1931-1958, p. 645) prohibiting the
destruction of 5000 toads for use in a marriage ceremony.
9. There is a suggestion that this report in the Not Yet The Times
newspaper cannot be relied on as authority. As I understand the
objection it is that a law report was in 1979 only admissible if it
was prepared by a barrister. The author of this law report was Mr
Marcel Berlins, who is a distinguished legal commentator, but it is
unclear whether he has been called to the bar or admitted as a
solicitor. If he was a solicitor, then there is an issue as to whether
reliance can be placed on the law report. It was only after the
Courts and Legal Services Act 1990 (UK), that solicitors were able

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to write authoritative law reports. Previously that was thought to
be exclusively the prerogative of barristers.

10. Section 115 of the 1990 Act (with the amendment made by the
Constitutional Reform Act 2005 (UK) Schedule 11 para 4)
provides:

A report of a case made by a person who is not a barrister but


who is a solicitor or has a Senior Courts qualification (within
the meaning of section 71) shall have the same authority as if it
had been made by a barrister.
11. This provision obviously post-dates the Grenouille judgment. The
question therefore arises whether it has retrospective effect, so as
to validate the 1979 report and make it admissible authority.
Halsburys Laws of England (11th Ed, 2009) Civil Procedure Vol
11 para 8 says:
In construing a statute which affects only the practice and
procedure of the courts, the presumption against retrospective
interpretation has no application, and unless the statute
otherwise provides, expressly or by necessary implication, any
changes effected by such a statute will apply to pending
proceedings and indeed will have retrospective effect.

In my judgment this presumption applies here. Thus, even if Mr


Berlins was a solicitor rather than a barrister, his report would
acquire retrospective authority.

12. There is in any event precedent for the Court relying on law
reports not made by barristers or solicitors. Michael Rubenstein,
who from its foundation edited the Industrial Relations Law

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Reports, is only qualified in the United States of America. He says
that in 1975 Peter Pain QC sought to rely on a report in the IRLR
in a case being heard by Lord Denning MR. Lord Denning asked
whether the report and the series were edited by a barrister or a
solicitor and, on learning that it was not, said that it was a
commendable example of free enterprise: Middle Templar (54th
Ed, Michaelmas 2014) at 30-31. The case where this occurred
appears to be Chappell v The Times Newspapers Ltd [1975] 1
WLR 482, [1975] IRLR 90. It is not entirely clear why Pain J, as
he later became, needed to refer to the IRLR version of a case,
since all the cases cited in Chappell were available in other series
of law reports. Be that as it may, there is, however, no doubt that
the IRLR are regularly relied upon in Courts and Tribunals in
England.

13. I hold that the Court has a discretion to admit law reports not
prepared by barristers or solicitors.

Accordingly, even if Mr

Berlins was neither a barrister nor a solicitor, I hold that I can rely
on his report of the judgment in Grenouille. Were it otherwise, it
might never be possible to attach precedential weight to this
otherwise important authority.

14. In the United States of America, there also seem to have been
relevant developments. Jeffery Toobin writing in the New Yorker
(Rich Bitch: The legal battle over trusts funds for pets, 28 th
September 2008) said:
The modern history of legal rights for animals begins with a
chimpanzee named Washoe. He was the first signing
chimp, the first chimpanzee who learned sign language to
communicate with people, Victoria Bjorklund, the head of the
exempt-organizations practice at the New York law firm of
Simpson Thacher & Bartlett, said. There came a time when

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he was going to be sent off to be used in medical testing, and
there was a lot of distress about that possibility. So Bjorklund
and others set up a trust (funded with the proceeds of a book
about Washoe), and appointed a guardian to protect him and
several other chimps like him. The problem was that New
York law said that a guardian could be appointed for a person
with a disability. Was Washoe a person under New York
law?
The lawyers at Simpson Thacher argued that the mental,
emotional, sociological, and biological characteristics of
Washoe and the other chimps warrant their treatment as
persons entitled to representation. The lawyers submitted
affidavits from such animal experts as Jane Goodall, who said
that chimpanzees are biochemically closer to humans than
they are to any other of the great apes. According to the brief
in the case, the chimps are capable of rational thought,
communication, and other higher cognitive functions,
justifying their treatment as the legal equivalent of minors or
disabled humans. In a 1997 decision, the surrogate of Nassau
County agreed and appointed a guardian to administer the trust
for the benefit of the chimps. That trust was then respected
by the State of Washington, where Washoe lived, Bjorklund
said. We think it was the first trust ever established for the
benefit of specific nonhuman primates.

15. Unfortunately Ms Counsell was not able to produce a copy of the


surrogates decision in Washoe, but it is clearly persuasive
authority for giving at least some animals legal rights enforceable
in their own names.

16. Against this formidable weight of authority, Ms Counsell rightly


draws my attention to the recent English High Court case of
Mooson v HSBC Bank plc t/a First Direct [2015] EWHC 3308
(Ch). There Ms Mooson sought to bring a claim, not just in her
own name and that of her two children, but also in the name of
two dogs, Goldie, aged 18 months, and Diamond, aged two years.
Snowden J said at [10]:

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Miss Wilmot-Smith [for the bank] also makes the obvious
point that dogs are not capable of bringing legal proceedings.
Among other things, CPR [rule] 2.3(1) defines claimant as a
person who makes a claim, and a dog is not a person. I also
cannot see how a dog could give instructions for a claim to be
brought on its behalf or be liable for any orders made against
it. There are a whole host of other reasons why proceedings by
dogs must be void, and accordingly I am satisfied that in so far
as the claim purports to be made on behalf of the two dogs it
should also be struck out.

17. With all due respect to the learned judge, this reasoning is circular.
Person is defined as an entity that has legal personality: see
the article on Person in Jowitts Dictionary of English Law (3rd
Ed, 2010). If a dog or a bear has legal personality, then it is a
person.

Further the CPR only governs procedure, it cannot

change the substantive law.

If dogs and bears have legal

personality, then they are persons and the CPR cannot take away
from them their right to sue and be sued.
18. Likewise, how Ms Counsell obtains her instructions is a matter for
her; she has ostensible authority to act. Insofar as Mr Bear lacks
capacity to conduct the proceedings, he is ipso facto a protected
party: see CPR rule 21.1(2)(d). Thus, were this in due course a
proper objection on the part of Ms Locks, all it would mean is that
a litigation friend would need to be appointed for Mr Bear. It
would not be fatal to the claim: CPR rule 3.10.

19. I note that Ms Wilmot-Smith did not refer the judge to the
authorities I have cited earlier, so he had no opportunity to
consider them.
conclusion.

If he had he may have reached a different

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20. In my judgment Mr Bear can bring the current proceedings.

21. I turn then to the application for substituted service. Ms Counsell


said that the difficulty the claimant faced was that all they knew of
Ms Locks address was that she lived in a far away country
inhabited by people of whom we know nothing. I do not see that
as being a problem at all. It is clearly a reference to Neville
Chamberlains description of Czechoslovakia: see The Times, 28th
September 1938 page 10. Accordingly I order that alternative
service be affected by advertisement in one national newspaper in
the Czech Republic and in one national newspaper in Slovakia.

22. For completeness, I should add that, as I was completing this


judgment, Dudley CJ enquired as to what I was doing. I was
pleased to see him. I had come a long way. For my expenses
claim I needed to know what the mileage rate payable by the
Gibraltar Court Service was for a sleigh and reindeers.

He

expressed surprise (in, I have to say, somewhat emphatic


language) that I was sitting as a judge in his Court-house, since he
was unaware that I had been appointed as an acting Justice.

23. I pointed out that omnia praesumuntur rite et solemniter esse acta
and cited Coke on Littleton at folio 6b. He looked a little stunned
and asked whether I always spoke with the relevant authority
immediately to hand. He added that he already had quite enough
of that sort of stuff from Jack J. I confirmed that I did. Even if
there were deficiencies in my appointment (as to which I made no
admissions), I had at least de facto authority to sit: see, I said,
Baldock v Webster [2004] EWCA Civ 1869, [2006] QB 315,

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where the Anglo-Gallic Court of Appeal held valid a decision
made by a recorder of the Crown Court, who had sat as a High
Court judge without any authorisation whatsoever.

24. I added, as the United States Supreme Court said in Norton v


Shelby County (1886) 118 US 425, 444-445, that:

Where an office exists under the law, it matters not how the
appointment of the incumbent is made, so far as the validity of
his acts are concerned. It is enough that he is clothed with the
insignia of the office, and exercises its powers and functions
The official acts of such persons are recognised as valid on
grounds of public policy, and for the protection of those having
official business to transact.

25. My killer argument was: I have the red robe on and Im a-gonna
judge. The Chief Justice muttered something about ermine and
usurpers. I agreed with him that the ermine on my gown was
indeed a bit hot. Salmon grey silk trimmings, as worn by the other
judges, were undoubtedly more suitable to the Gibraltarian
climate, but both are perfectly judicial.
26. As to his point on usurpers, his argument seemed to be that, if I
knew I was not entitled to sit as an acting judge, then I could not
be acting as a de facto judge. I pointed out that the Court of
Appeal left this question open in Fawdry & Co v Murfitt (Lord
Chancellor intervening) [2002] EWCA Civ 643, [2003] QB 104.
Moreover Dudley CJs formulation seemed to be contrary to
Norton v Shelby County. The Chief Justice was, I suggested, just
going to have to leave the issue to the Court of Appeal of Gibraltar
in the (possibly unlikely) event of Ms Locks taking the point on
appeal. I could not help a little guffaw (a throaty Ho! Ho! Ho!
not being very judicial) when explained I had to be elsewhere over

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Christmas, but I promised to be back for some more sitting toward
the end of next year.

27. Accordingly, I shall make an order for substituted service on Ms


Locks by advertisement in a national newspaper in the Czech
Republic in both English and Czech and in a national newspaper
in Slovakia in both English and Slovakian.

28. Lastly, I should pay tribute to the almost magical qualities of Ms


Faerie Counsells advocacy and submissions.

S Claus
Acting Puisne Judge
24th December 2015

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