LAST WEEK the High Court in London cut the Kennel Club Rule A43 bans on Newfoundland breeder Mrs Phyllis Colgan (Karazan) from five years to three years, allowing her to show immediately with only another six months to serve of the initial ‘registration’ ban imposed on April 20th 1999.

Delivering his reserved judgment nine days after the three day case, Mr Justice Cooke said that the ban was ‘manifestly excessive and disproportionate’ to the ‘object of the rules and the offences for which she was convicted.’

Mrs Colgan, 53, who now lives the USA was not present at the final hearing.

In May 1998 she had hired a 7.5 tonne box van to help transport some of her 32 Newfoundland dogs from her home at Southgate Farm, Rushbrooke Lane, Bury St. Edmunds in Suffolk. Ten of the dogs died from heatstroke on one of the hottest days of the month when the van was held up in traffic on the M1 motorway.

Mrs Colgan was given an absolute discharge by Leicester Magistrates’ in January 1999 after an RSPCA case and 16 convictions under the 1911 Protection of Animals Act. She was ordered to pay £2,000 costs.

Three months later the Kennel Club then applied its ‘catch all’ rule A43 as a result of the case and banned her from the use of KC registration and competition for a period of five years.

Announcing his decision Mr. Justice Cooke, said: “In my judgment the disciplinary rulings made by the Kennel Club General Committee were not unlawful by reason of the Rehabilitation of Offenders Act, nor did the review or failure to review fall foul of that statute.

“The penalties imposed was however, disproportionate and Mrs Colgan is entitled to a declaration to that effect”.

However, Mr Justice Cooke added: “No claim for damages will lie against the Kennel Club in relation to the disciplinary decisions taken”.

He had described the Kennel Club as “the well known organisation which regulates and supervises the breeding and showing of dogs in the UK.

“It’s activities include the classification of breeds, the registration of pedigrees, transfers of registrations to new owners, the licensing of dog shows, the framing and enforcement of Kennel Club rules, the awarding of Challenge, Champion and other certificates, the registration of canine associations, clubs and societies and the publication of an annual Stud Book and the monthly Kennel Gazette”.

As such, the court had been told, the five year ban had the effect of worldwide ramifications with the US applying a reciprocal arrangement over suspensions.

Last Monday a KC press release commented on the case saying: “The Kennel Club can confirm that judgement has now been given in the case of Mrs Phyllis Colgan v The Kennel Club. The court action arose as a result of the Rule A43 decision to suspend Mrs Colgan for a period of 5 years from all canine activities from 20 April 1999.

“Mr Justice Cooke held that the penalty imposed by The Kennel Club on the claimant was disproportionate and that Mrs Colgan is entitled to a declaration to that effect. However, the judge also ruled that the claimant was not entitled to damages, accepting The Kennel Club’s submissions on this point. The judge’s preliminary view on costs is that The Kennel Club should pay two thirds of the Claimant’s costs, but this is subject to further submissions to be made by both parties.

“Also in his judgement, Mr Justice Cooke made specific mention of the fact that he found nothing wrong with the A43 procedure and he found no fault on the part of The Kennel Club with regard to the decision-making process. In the judgement, Mr Justice Cooke’s remarks included:

1 “There was nothing unfair about the procedures adopted when they are taken as a whole”

2 “There were no real disputed issues of fact and the essence of the offence and the defence to it were transparently clear from the materials which the General Committee received. No oral hearing was therefore needed for the committee to proceed fairly”

3 “Nor could Mr French’s (Kennel Club CEO) Brief be described as unfair when taken as a whole”

4 “ Nor is there anything in the point as to the lack of independence of the tribunal”.

“It seems that the judgement is based on the fact that, compared to the Magistrates’ sentence, the penalties imposed by The Kennel Club were felt by the judge to be excessive. Mr Justice Cooke stated that: “The minutes of the meeting of the General Committee show that they had regard to the essential feature of the offence and do not reveal any misunderstanding or error of principle in the approach taken. Nonetheless, the disparity between the magistrates’ sentence of absolute discharge and the General Committee’s imposition of five year penalties is acute.

“The judge found that a reasonable penalty would be a three year ban in respect of registration and a two year ban in relation to other canine activities.

“The Kennel Club is now considering the judgement carefully in consultation with its legal advisers as to whether any further action is required”.

Phyllis Colgan provided the following statement for publication:-

“In 1999 the Courts in England granted me an Absolute Discharge following the tragic accident that occurred in 1998.

“I have always felt that the actions of the KC were unfair and wholly disproportionate to the wrongdoing of which I had been accused and I have had to come back to the High Court to correct the KC’s unfair and unjust ban. This has been a most stressful and daunting task.

“The High Court has totally vindicated my position by ruling that the penalties imposed by the KC were “manifestly excessive and disproportionate” and I am delighted with that decision. The effect of the judge’s decision that I will now be able to return to my career in the world of dogs.

“I would like to thank the many friends and others that have given me their support during this very painful period of my life.

“The judge described press comment following the accident as unbalanced, if not inaccurate and he further found that much of it was sensationalist in approach and focused on my domestic circumstances.

“I sincerely hope that those who have been unfairly influenced in the past by the unbalanced, inaccurate and sensationalist media coverage now review the facts and circumstances surrounding the accident with a more rational eye and do not judge me in quite the same way and allow me to rebuild my life. Nothing can compensate for the tragic loss of my beloved dogs but I can now look to the future”.

In her response to the KC press statement Mrs Colgan said:

“The KC in reporting the High Court ruling whilst acknowledging that the court had ruled that the penalty imposed upon me was “disproportionate” seemed to have overlooked the court’s full statement that their ban was ‘Manifestly excessive and disproportionate”.

“The KC has pointed out that the High Court ruled that my request for damages had been denied.

“What the KC has not emphasised is that the High Court ruled that following the rules of case precedent the judge stated that the KC were not contractually obliged to reach a correct decision and damages could not flow from any wrongful decision on the part of the KC.

“In overturning the KC ban the judge ruled that the decision of the General Committee of the KC decision was indeed “wrongful”.

The KC has quoted that the judge found nothing wrong with the A43 procedure and he found no fault on the part of the KC with the decision making process, but the fact is that he found that the procedure and the process still led to a decision that the judge ruled as “manifestly excessive and disproportionate”.

“A major factor which I believe did not emerge because of the refusal by the KC to disclose a range of documents and their claim that they had lost files, was the influence that was exerted upon members of the committee and others to apply the ban.

“The General Committee of the KC was presented with a dossier containing approximately 150 press cuttings which the judge described as “some of which was unbalanced, if not inaccurate. Equally, much of it was sensationalist in approach and focused upon my domestic circumstances...

“My opinion is that whilst the A43 procedure and decision making process may have nothing wrong or contain no faults, the fact remains that the committee relied upon, amongst other things, the dossier presented to it containing the press, cuttings and other undisclosed letters and based upon that material arrived at a ‘wrongful decision”.

Mrs Phyllis Colgan looks forward to returning to the show ring and, commenting on various questions, said that there are owners of Karazan dogs who want me to show their dogs in England and would like it to happen as soon as possible. She said she had already received congratulatory messages from people, particularly in other breeds, who cannot wait to see me back in the Newfoundland show ring. She said there was much to be done to rebuild the Karazan gene pool and she is inviting old friends and new to get in touch with her at NewfoundlandsCA@aol.com if they wish to be a part of achieving this priority objective.

Mrs Colgan’s stated objective is to “build on the International reputation of Karazan which has in the past successfully exported Champions to all parts of the world”.

She pointed out that there are a number of Karazan and Angelhouse dogs in the USA which are mainly owned by her friend Alan Parker.

Since her move to the USA she has only been able to spectate at shows and the AKC, because of a reciprocal agreement with the KC were obliged to suspend her privileges in the USA.

The AKC has asked her to notify them immediately that the UK ban was lifted and she is in the process of dealing with this matter commenting on judging appointments, she said she has already received a tentative enquiry in respect of her willingness to judge at certain forthcoming American shows.

As far as pursuing any damages claim; she said she has yet to discuss this with her solicitors. The Kennel Club denied her requests to provide many documents for use in the first part of the case as they claimed such documents related to the damages part of the case which she was informed would be the second stage and would be heard later.

Furthermore the KC claims to have ‘lost’ files containing letters placed before the General Committee when they imposed their unfair ban.

The case has allegedly cost the Kennel Club over £100,000 and the outcome may well have an impact on Kennel Club ‘A’ regulations.