An Application by Daniel Terence Brown for an Order of Certiorari and Another
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE TEMPLEMAN,LORD JUSTICE DUNN |
| Judgment Date | 18 February 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0218-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 February 1981 |
| Docket Number | 81/0037 |
[1981] EWCA Civ J0218-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Royal Courts of Justice.
The Master of The Rolls
(Lord Denning)
Lord Justice Templeman
and
Lord Justice Dunn
81/0037
and
MR. J. BULLEN and MR. R. SPON-SMITH (instructed by Messrs. Redmayne Wyatt & Kershaw) appeared on behalf of the Applicant (Appellant).
MR. CHARLES FAY (instructed by J.L. Knight, Solicitor to Basildon Council) appeared on behalf of the Respondent.
Market traders provide leading cases. Some time ago we had Mr. Hook and the market at Barnsley (1976) 1 weekly Law Reports 1052. Now we have Mr. Brown and the market at Basildon. There is this difference. At Barnsley there had been a market since 1249 A.D., whereas Basildon was a new town and there had only been a market since 1957. Yet to my mind the rights of the stall holders are the same in each case. To this I will return.
At Basildon the market is opened for business on Tuesdays (8.00 till 4.30 p.m.), Fridays (8.00 till 6.30 p.m.) and Saturdays (8.00 till 5.30 p.m.). It is a market for goods and commodities of all kinds, but not for cattle.
MR. BROWN'S STALL
Ever since he was a young man in 1963, Mr. Brown has worked in the Basildon market. He has been on stalls Nos. 3 and 4 selling fruit and vegetables. At first Mr. Brown was an employee of the then stall holder Mr. Connors. Afterwards he became a partner with Mr. Connors. But Mr. Connors fell ill and could not attend. So in January 1976, Mr. Brown was granted a licence in his own name alone. He has built up a very successful business there. He has a total of eight staff to assist in running the stalls. The public are well satisfied with his service. Most mornings there are long queues to buy fruit and vegetables from his stalls.
Ever since Nos. 3 and 4 stalls have been established in the market, the practice of Mr. Connors and afterwards Mr. Brown has been for him to go with driver and van to Covent Garden (40 miles) and other markets to buy vegetables and fruit from the wholesalers. He has to arrive there about 2.30 a.m. He buys his vegetables and fruit from the wholesalers. He loads them into his van. He returns to Basildon and sets up the stalls with the goods ready for sale. He completes this by 7.30 a.m. Then he stays on the stalls selling the goods to the public until about 11.00 a.m. or 12 noon. These morning hours are the busy time when the housewives do their buying. Then Mr. Brown goes off to rest—having been up at work continuously for the previous 12 hours.
As far as we know, several other traders in the market carry on in much the same way—if they have to go up to London or elsewhere to get their commodities—such as fruit and vegetables or fish. The buying from wholesalers is a most important part of their business. To decide what to buy. To decide the quantity to buy. To arrange the prices—is essentially the job of the principal of the business, and not of any assistant. So Mr. Connors in his time did it himself. So Mr. Brown in his time. And no doubt other stall holders likewise.
THE LICENCE
The licence issued to Mr. Brown said:
"Period of Licence—Three monthly.
"The Basildon District Council hereby grant the above-named Licence-holder licence to trade from the above-numbered stall during business hours on each market day until determination of this Licence in accordance with the above Schedule…subject to the Council's Regulations for market trading annexed hereto…"
THE MARKET REGULATIONS
The Basildon Council issued at some time—probably from the beginning—Regulations for trading in the market. One of them was in these terms:
"The licence-holder shall attend at the stall on every market day for the purpose of conducting his business therefrom during business hours".
What is the correct interpretation of the regulation? I should think it meant that the trader was to attend at some time during business hours. Just as you say, "It rained during the night", meaning it rained "at some time during the night". So here, the trader must attend "during business hours", meaning "at some time during business hours". But in 1976 the Basildon Council seems to have interpreted it as meaning at all times during business hours. So in March 1976 they issued a directive to the Market Supervisor, John Arnold. They ordered him to keep a Market Day Book recording the attendances of licence holders. Mr. Arnold went round to the stall holders. In an affidavit he says what he told them. He told them that "those not present trading in person throughout each Market Day would be noted as absent" in the Market Trading Book. If he noticed that a trader was absent, either partially or totally, he marked the Market Day Book accordingly.
Now it was obvious that Mr. Brown was not present throughout every day for every hour that the market was open. He was there in the mornings till 11.00 a.m. or 12 noon, but not for the rest of the day. So he was noted as "absent". This was hard lines on Mr. Brown—to be noted as "absent" when he was present for half the day and the busiest part of it. Yet Mr. Arnold felt he must be reported for not complying with the regulations. The sequel is best told by a letter which Mr. Brown himself wrote to Mr. Jackson, the Head of the Public Health Department:
"D.T. Brown, Esq., Stalls 3 and 4, Basildon Market, 15 Hurstwood Avenue, South Woodford, London, E.18. Mr. Jackson, Head of Public Health Department, Billericay, Essex.
9th April, 1976.
Dear Sir,
Mr. Arnold, the market supervisor, has informed me that as I am not trading personally all day, I will be reported for not complying with the regulations.
I have asked if I could see someone to explain my case. Mr. Arnold made arrangements for me to see Mr. Alborn and I have discussed my position with him and Mr. Arnold in his office.
The suggestion was that I write to you giving my reasons.
I have to get to market at 2.30 in the morning each day buying fresh produce daily. By the time I set out my stalls and commence trading, which I do until about 11.00 o'clock, I need to sleep.
I am fortunate that I have good reliable staff who I can leave to carry on for me, which has always proved to be successful. I would appreciate the possibility of discussing this further with you, with the view of resolving my position with yourself and the Council Committee.
I have always tried to keep to the regulations, but have been approached by Mr. Arnold on few occasions.
I have always maintained a good stall which has proved successful by selling fresh produce, together with reliable staff and have never yet had any complaint.
Yours faithfully,
D.T. Brown".
Following that letter, a meeting was held in Mr. Jackson's office on the 23rd June, 1976. Mr. Brown went with the Chairman of the local branch of the Market Traders' Federation. Mr. Jackson told them that the council required all licensed traders to attend full time: and that this requirement of the council was being strictly enforced.
This ruling gave rise to much hardship to market traders like Mr. Brown. So the matter was raised at a meeting of the Market Consultative Committee on the 21st July, 1976. It was attended by councillors, traders' representatives and officials. The result is summarised in a minute which says:
"The Council's condition that every licence holder should attend at his stall on every market day for the purpose of conducting his business therefrom during business hours was in a few cases creating genuine hardship for market traders. This condition was intended to ensure that stalls were not bought and sold, and that there was a continuity of contact between licence holders and market customers. The Council was considering ways to amend the Market Trading Regulations to alleviate genuine hardship whilst still meeting these objectives".
On the evidence, it is clear that Mr. Brown was a case of genuine hardship. He was not within the mischief aimed at by the condition. He was not intending to sell his stalls. He had continuity of contact with his customers. But, although the committee recommended the amendment of the Market Trading Regulations, they were never amended.
So the position continued—with the Market Manager insisting that Mr. Brown should attend every hour of every market day—and Mr. Brown attending in the mornings but not in the afternoons.
In January 1977 Mr. Brown went to his solicitors. They took up his case with the Market Manager, but to no avail. The Market Manager reported it to the Consumer Protection and Health Committee of the council on the 9th February, 1977. The solicitors for Mr. Brown wrote letters setting out his case, but to no avail. The committee held a meeting, at which the Market Manager was present, but not Mr. Brown, nor his solicitors nor any representative to put his case.
THE DETERMINATION OF THE LICENCE
The committee decided to terminate the licence. The reason for it is given in a letter of the 3rd March, 1977, which I must set out:
"…Your client's case was reported to the Consumer Protection and Health Committee on the 9th February 1977 and your letters together with...
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