Appeal or what alternative?

[Tanzanite]

My sister who is Nottinghamshire based, bought a horse in June 2020 for £5,500 from a dealer in Cheshire. The horse displayed a dangerous behavioural fault post the 30 day return period. In August 2020 the horse was returned back to the dealers yard in the belief the horse could be rejected and a refund forthcoming. A small claims hearing followed 8^th February 2021 and my sister’s claim was dismissed on the grounds she had not given the dealer the opportunity to ‘repair or replace’. The onus appeared to be on my sister to ask for this, and at no time did the dealer offer to ‘repair or replace’. We are not sure whether this onus on my sister is as the law states. A sales/livery agreement was imposed by the judge with 24 weeks at £150 per week, and costs were awarded to the dealer. This award included £250 for a claimed loss in value of the horse, which it also transpired, had been sold the day before the hearing by the dealer ie for a second time.

However, the judge made it clear she would not discuss or deal with the aspect of the horse’s sale, the hearing ended abruptly, no opportunity to ask for an appeal and no clarity on what was required of the dealer to recompense my sister the sale price of the horse. So at that point, the dealer had been paid £5.500 from my sister, plus awarded £4,073 costs (which has been paid) and received a second amount from the second sale of the horse. It is not clear as to after the judgement, whether the horse became the dealer’s to sell for a second time or was my sister still the owner of the horse?

Subsequently the court/judge sought the view of both my sister and her opponent as to whether any money was due to her, no prizes for guessing the dealer’s response. The court referred my sister to CPR 1998 in the event she was seeking to vary an order, give a direction or make an order.

During this period of limbo, my sister has obtained additional information which has brought to light that the dealer mislead the court. We have obtained proof that the horse was not at the dealer’s yard on sales livery from at least November 2020 but at another yard and was being advertised for sale from that yard on behalf of ‘the owner’, we can only assume the dealer had assumed ownership. The horse was sold for £6,000 and so the claim was false that there was a loss in value of the horse of £250.

We wanted to find out what options are available and considering the amount of money this has cost so far an estimate as to what the cost would be to launch an appeal through a lawyer. We understand permission has to be sought for an appeal on N164 and we might need to obtain the transcript from Chester Justice Centre on EX107. We haven’t taken these steps as to be honest we are floundering as to what is the best course of action.

[des8]

IMO your sisters best way forward is to request the money the dealer obtained when he resold the horse.

I don't think there is any mileage in appealing the judgment,
The rejection of the horse was not upheld, so the ownership continued to reside with your sister, who then paid for livery.

This essentially makes the dealer the bailee of the horse, which should not have been disposed off without first notifying the owner.
Any proceeds (less expenses) from the sale then belong to your sister.

Ask for the money, and if disputed, I think there is a claim under the Torts (interference with goods) act 1977

Tagging R0b for other input

[R0b]

Possible grounds of appeal here but there seems to be a few gaps that I don't quite understand.

1. Did the dealer at any point request an opportunity to repair or replace and if so, did you reject that and on basis?

2. This is a genuine (and curious) question but, can you actually 'repair or replace' a horse? If the horse has a behavioural issue can that be rectified? As for the replacement of the horse, can you get a like for like comparison so as to qualify as a satisfactory replacement? I'm thinking same breed, colour, age, characteristics etc.

3. You said that a sales/livery agreement was imposed by the judge. Can you explain what you mean by this? Did you enter into a sales/livery agreement with the dealer and the judge was simply enforcing the terms or, did the judge make one up on the spot?

4. Why were costs awarded? The value you mentioned would suggest the claim would be allocated to the small claims track meaning that recovery of costs are limited - was this the case or was it allocated to a different track?

5. Did the judge give any reasons for her decision as to why the claim was lost? What I mean by this is that sufficient reasons for the decision of the judge preferring the Defendant's view over yours.

6. There are grounds of appeal for setting aside a judgment where fraud is uncovered at a later date, but that's not something I would solely rely on, so depending on your responses to the questions there might be merit in going the appeal route.

7. When you said the court sought the view as to whether money was due, was this on the day of the hearing before it was ended abruptly or did the court/judge call you at a later date when the hearing had finished? It's not clear when this took place.