I debated which heading to use. It was going to be “They Eat Horses, Don’t They?” but the film inspiring that joke seemed too old now. Anyway, why write about something which has led to numerous jokes? What has this got to do with the law? As with so many things, a great deal. There are in fact lots of legal angles and the repercussions of this will run for many years (unlike the horses!) (Sorry)

When the story first broke Radio 5 had an expert on, whose name sadly I didn’t catch. In 2 minutes he spoke more sense than hour upon hour of subsequent vox pop phone ins.

His comments are the basis for what follows.

It is now crystal clear that this event is not a one-off. The widespread extent shows that it was not an isolated incident.

At some point in the manufacturing process, someone has added horsemeat, rather than beef. That has clearly been deliberate. At what stage in the process it happened I do not know.

But horsemeat is cheaper than beef. Ergo, supplying it under the guise of beef makes money for the guilty party. We do not know yet who knew about this but at some stage the next person in line did not know.

The suspicion is that this has been a fraud running for some time. If not then the authorities deserve great credit for catching it so fast.

As an aside, this is a fine example of why government has a role that business cannot fill. Irish government inspectors first identified the problem. Not the quality controllers for manufacturers, wholesalers or retailers. The present Westminster government tells us about slashing red tape and idiotic “Elf’n’Safety” rules. But some, indeed many, are needed. In South Lanarkshire, for example, the numbers of Trading Standards Officers have plummeted, for budgetary reasons. Private resources can’t fill the gap.

One phone in I heard spent most of the time arguing about whether we should eat horse in the UK. That missed the point.

Food labelling, as with any product description, is vital. As well as its importance for health and religious reasons, the consumers need to know what they are buying. But this episode tells us how easily we are sold a horse in a poke!

The motive for the fraud is irrelevant. Whether the guilty party or parties did so out of greed, or to protect margins in response to demands for price cuts by supermarkets is neither here nor there. It was done for financial gain.

Whilst it ought to be easy to find where the horsemeat entered the system, it is far more difficult to track who knew about it. It could be that it was an open secret all the way through the process. Or that only one part of the chain knew.

But if customers do not know what they are buying…

Many years ago the local City Bakeries acted as a hub for the office I worked in. The lawyers met there in the morning for a coffee and a roll’n’tattie scone. (This was Coatbridge Law, not L A Law!)

One day a sign appeared on the counter telling us that their sausage rolls contained a minimum 10% meat. What, we asked, was the other 90%? We were never told.

It reminds me of the Shettleston curry house which advertised “Meat Curry”. One can’t get vaguer than that!

(I do not suggest that either the City Bakeries or the Shettleston Taj Mahal [name changed because I can’t remember it] were serving horse, although they would not have fallen foul of the rules – after all, they did not say that the “meat” was beef!)

What about health risks?

There would normally be no risk to health in eating horsemeat but the issue of medication looms large.

Cattle are fed antibiotics, supplements and the like. These are tested to ensure no ill effects on humans eating the beef. But what about the horses? What chemicals have been eaten by consumers and what consequences might there be?

If anyone could prove illness as a result of eating horsemeat in a wrongly labelled product, then they would have a strong claim against the retailer for damages, under contract law, the law of negligence and Product Liability legislation. I imagine that there are droves of scientists and vets in contact with the lawyers for the retailers and manufacturers assessing what medication is given to horses and what effect it could have upon human consumers.

Ironically, the longer this has gone on, the less likely that there will be many civil damages claims by consumers for injury to health. After all, if horsemeat has been in some spag bol or burgers for years, how to prove that it has been harmful?

The answer would be to see if traces of horse-specific medication were to be found in samples taken from ill humans – and then to assess if the medication in question might have caused the illness.

If we were in the USA then the class action rules could encourage a flood of litigation from consumers who have bought products they think could be horse contaminated, on the basis that they were induced by fraud and misrepresentation to buy them, and even although they have not been physically injured, they spent money on what they thought to be beef, and so want their cash back. This is similar in principle to the class action raised in California by purchasers of Lance Armstrong’s books who want their money back as his “non-fiction” has turned out to be incorrectly labelled.

But we do not have the same “class action” rules here, so that idea is a non-runner (sorry).

Individuals would need to pursue their own claims and, as yet, without any robust “group litigation” system in Scotland, there is no real way to co-ordinate them, when the claims would be at such low levels.

However, in a fictitious example, what if a consumer who had, for example, consumed one of the admittedly affected products, over a few years decided to pursue a Small Claim for damages seeking to be refunded for the £10 per week they had spent on the MegaSupermarket PLC Spaghetti Bolognese and Top Quality Value Burgers? By the way there would not, in such a claim, be any need to allege damage to heath – simply that the buyer was sold something which was not what they thought it was.

Whilst their claim, that they were sold horse labelled beef, and if they had known it was horse they would have not have bought it, would require them to prove the breach, would the publicity angle encourage MegaSupermarket PLC to settle, without admission of liability and with a confidentiality clause?

One would have to wait and see.

On the other hand MegaSupermarket PLC and Well-known Frozen Food Brand Ltd will be consulting their own lawyers to pursue damages claims for loss of profits and damage to reputation against those in the supply chain who have provided the horsemeat.

So, with the starting stalls having been opened by the Government investigators in Ireland, it might prove to be the solicitors for the companies involved who race with the police to find the culprits.

This story will run and run (unlike the horses…sorry again)

Posted by Paul McConville

Solicitor, Clarity Law (Scotland) Ltd