With riding an increasingly popular pastime there is a growing demand for equine lawyers to advise horse owners, both private and commercial.
Around £4bn a year is spent on horses in Britain, according to the British Equestrian Trade Association’s (BETA) latest national survey, with just over four million people taking to the saddle every year.
With 2.1 million riding at least once a month, and a further 2.2 million having ridden in the last year, there are 4.3 million participants in total, contrasting with the last estimate of 2.4 million.
Paul Smith, a solicitor in the specialist disputes team at south-east firm Cripps Harries Hall, reckons the equine industry could easily continue to grow. Citing research by BETA on the 2012 London Olympics, Smith says: ‘More than 90% of respondents believed that the Olympic effect would raise the profile of horse sports and generate more interest in riding.’
BETA itself adds flesh to this positive assessment. There are 1.35 million horses in Britain, including those kept by private owners and in professional establishments. And, since BETA’S last survey in 1999, leisure riding, horse schooling, competition riding and hunting have all enjoyed rising popularity.
Away from the paddocks, the way business is conducted in the equine industry has undergone a radical change in the last decade, thanks to the impact of European legislation and the strict interpretation of certain domestic acts by the English courts.
Caroline Bowler, a solicitor at Nottingham law firm Actons, says: ‘Traditionally, deals in the horse world have always been done with a handshake, but I believe that members of the equine society are becoming more tempted to enter into formal legal agreements to avoid problems later on.
‘Horse-riding does seem to have become more popular and there are people buying horses who do not have a great degree of experience, and are therefore more inclined to seek legal advice when things go wrong.’
Helen Niebuhr, head of the equine law team at Oxford-based Darbys, says people are now more aware of the benefit of having agreements in writing before issues arise. ‘We are advising our clients to do this where applicable to safeguard their businesses for the future. Many equestrian businesses are becoming more commercial and professional in the way they operate, which in turn means that there has been growth in this area of legal work.’
Though there are relatively few specialist equine law practices in the UK, Smith points out that more and more lawyers are trying to get in on the act. ‘It appears that a number of legal firms are now trying to specialise in equine law and are creating a separate department. I think firms are realising that it is a good area to get into, as the amount of equine work seems to be significantly on the rise.’
Niebuhr explains that this work can range from ‘pure equine’, such as disputes over horse sales or contracts for sale, loan, syndication or stud agreements, through to an assortment of work for individuals and businesses, which can include anything from property and planning work to commercial business advice and employment.
She says: ‘Employment law has seen continuous development over the last few years, and many smaller equestrian businesses are feeling the pressure to be more up to speed with the rights of their employees. The increase in buying horses from overseas and buying from the internet without viewing are leading to particular problems in disputes over both sale and possible negligent vetting.’
As well as an increase in demand for commercial contracts, there is growing awareness of the need to obtain advice on legal aspects of event organisation. ‘This often involves health and safety advice and advice on how to protect from potential liabilities,’ says Niebuhr. ‘Previously, this would be the last thing people would consider, particularly when organising local events. However, horses can cause a lot of harm, so it is even more important to protect against liability when organising this type of event. The risk of injury can be reduced by implementing strict rules for such events.’
One growing area of equine law work, says Smith at Cripps, is the purchase and sale of horses, which involve actions under the Sale of Goods Act 1979 and the Misrepresentation Act 1967. Cases under the Animal Welfare Act 2006 also appear to be on the rise, he adds. ‘This is probably due to the increased number of people who own horses and fail to care for them as they should, almost thinking they are like domestic household pets who are relatively self-sufficient, which horses are clearly not. It used to be the case that people who purchased a horse would have significant experience in keeping and caring for horses,’ he says.
Anne Vincent, a solicitor based at Gabbs’ Leominster office, predicts a rise in negligence claims for injuries, particularly at competitions. ‘We now have more and more rules intended to take the risk out of competing, encouraging people to forget that riding is an inherently risky sport and to seek to place blame somewhere if they do suffer an accident. I believe we should stop trying to protect riders so much and let them make decisions for themselves and be responsible for their own safety.’
On this theme, the Rt Rev Prof Barry Peachey, chairman of the Equine & Animal Lawyers Association, calls for the abolition of the ‘iniquitous provisions’ of the Unfair Contract Terms Act, which mean that liability for death or personal injury cannot be avoided by notice or contract terms.
‘People should ride horses at their own risk, and not expect to sue every time they hit the ground. In the USA, equine liability statutes protect riding establishments from being sued by injured riders. If we had the same here, insurance premiums would be greatly reduced.’
Niebuhr says another reason claims have increased – and caused insurance premiums for the horse industry to rise – is the strict liability for damage provisions in the Animals Act 1971 (AA 1971) which, she says, means that ‘even where a horse owner is not negligent in any way, they can still be held responsible for injury or damage caused by their horse’.
She says the 2003 House of Lords case of Mirvahedy v Henley, which set a precedent dealing with the strict liability provision under section 2(2) of the act, has had a big impact on the industry as a whole.
‘Not only were people made more aware of their ability to claim for damages in the event of injury or damage, but also the knock-on effect on the insurance industry meant that horse owners and keepers were taking advice on reducing their risk of being responsible for damage,’ she says.
In Mirvahedy, the Lords concluded that the keeper of an animal could be strictly liable for damage that resulted from behaviour which was in no way abnormal for an animal of the species in particular circumstances. The Mirvahedy ruling, says Smith, was tempered by the decision in Clark v Bowlt  EWCA Civ 978 where, at first instance, it was found that although neither party was negligent, the claimant was liable under the Animals Act. The Court of Appeal, however, held that the size and weight of a horse is not a normal characteristic, and not specific enough to satisfy the test laid down in section 2(2)(b). Lord Justice Sedley remarked that the section ‘was not intended to render the keepers of domesticated animals routinely liable for damages which result from characteristics common to the species’.
The confusion that has long been thrown up by the loose drafting of the 1971 act could be clarified, says Bowler, if the Animals Act 1971 (Amendment) Bill 2008 – which had its second reading in Parliament in March this year – becomes law. It ran out of time in the last session but, she says, may be introduced in part 9 of the Marine Bill. She says: ‘The proposed bill essentially replaced the existing wording of section 2(2) with references to animals with ‘unusual characteristics’ and ‘conditional characteristics’. These suggested amendments would ultimately have the effect of limiting the circumstances in which strict liability would apply, in cases where damage was attributable to the act of a non-dangerous animal.’
Jonathan Hand, a barrister at Outer Temple Chambers in London, who has acted in various horse-related disputes says: ‘There is no doubt that greater certainty about the application of section 2(2) of the 1971 act would be welcome – though achieving that may well prove elusive – and there is a good argument that the circumstances in which keepers of horses may be exposed to strict liability should be restricted.’
Peachey says one of his association’s chief concerns centres on European unification. He refers to a reported proposed meeting between representatives for farriers (specialists in equine hoof care) and the Department for Environment, Food and Rural Affairs to discuss amendments to the Farriers (Registration) 1975, which would allow unqualified European farriers to work in the UK. ‘Heaven help our horses if this little lot goes through,’ he says.
One of an increasing number of expert witnesses on equine law, Peachey says the Single Joint Expert (SJE) rules have had a devastating impact on the association’s expert witness members. ‘We believe the SJE is seriously detrimental to the interests of justice. But, of course, the government has no interest in justice, only in saving money. The problem with horse litigation is that two experts may have different views, yet either may be right. Now the court only gets to hear one view. That is fundamentally wrong, and an affront to justice. However, as few horse owners vote Labour, this government doesn’t care anyway.’
Bowler and Niebuhr agree that emotions run high in disagreements over horses, meaning that reaching a resolution can be much more complex than might be expected in other kinds of disputes. ‘The nature of disputes over horses is that sometimes they can run and run, because people are acting on principle and the evidence can be thin on the ground,’ says Niebuhr. ‘We are often dealing with a situation where the evidence boils down to one person’s word against another’s.’
Bowler adds: ‘People who have purchased horses which have turned out to have a chronic health condition that existed at the time of sale tend to become attached to the horse. Generally, such purchasers fear for the horse’s well-being if they return it to the vendor following breach of contract or misrepresentation. This welfare element and personal attachment adds a degree of complexity to resolving disputes which does not tend to exist in respect of other types of sale-of-goods claims.’
To succeed as an equine lawyer, says Eleanor Temple, a barrister at Kings Chambers, Manchester, the prerequisites are a passion for horses and their welfare and for riding. ‘It often helps if you own your own horse, particularly in relation to the terminology used, which assists tremendously in dealing with experts,’ she adds.
Horse owner or not, being an equine law specialist is a good business move. ‘The future for equine lawyers will only get better,’ says Smith. ‘As more and more people appear to be buying horses, this will inevitably lead to far more equine disputes in which clients will require specialist legal advice.’
Lucy Trevelyan is a freelance journalist