Antonelli v Secretary of State for Trade and Industry

JurisdictionEngland & Wales
JudgeLORD JUSTICE BELDAM,LORD JUSTICE KENNEDY,LORD JUSTICE ALDOUS
Judgment Date31 July 1997
Judgment citation (vLex)[1997] EWCA Civ J0731-28
Docket NumberQBCOF 96/0015/D
CourtCourt of Appeal (Civil Division)
Date31 July 1997
Samuel Antonelli
and
The Secretary Of State For Trade And Industry

[1997] EWCA Civ J0731-28

Before:

Lord Justice Beldam

Lord Justice Kennedy

Lord Justice Aldous

QBCOF 96/0015/D

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

(CROWN OFFICE LIST)

Royal Courts Of Justice

The Strand

MR M BELOFF QC and MS J CALDER (Instructed by Bray Walker, London EC4A 1JR) appeared on behalf of the Applicant.

MR D OUSELEY QC and MR R SINGH [MR J MOFFETT-TODAY ONLY] (Instructed by the Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent.

1

Thursday, 31st July 1997.

LORD JUSTICE BELDAM
2

The long title of the Estate Agents Act 1979 described it as:

"An Act to make provision with respect to the carrying on of and to persons who carry on, certain activities in connection with the disposal and acquisition of interests in land; and for purposes connected therewith."

3

It was the culmination of many attempts begun as long ago as 1888 to regulate the activities of estate agents by legislation. During the 90 years before the Act was passed, public concern had been expressed that neither Parliament nor the profession itself had made provision for registration, for minimum standards of competence and for safeguards to protect clients against defaulting practitioners. In short, any person could adopt the title of, and act as, an "estate agent" though he had no specific qualification and the public had no assurance that he was skilled, competent or even honest. After many unsuccessful attempts by private members to introduce legislation to regulate estate agency practices, a Bill introduced by a private member Mr Bryan Davies in 1978 was adopted by the government to become the Estate Agents Act 1979. The Act did not introduce any system of registration but provided means by which an estate agent could be judged unfit to practice. The power to make orders prohibiting unfit persons from doing estate agency work was entrusted to the Director General of Fair Trading. It is with these powers that the present appeal is concerned. They are contained in secs. 3-8 and the provision of Schedule 1.

4

By sec. 3 the Director is given power, subject to preconditions, to issue orders prohibiting a person from engaging in estate agency work if he considers that person to be unfit to practice on any of the grounds set out in the section. Before making an order, the Director must follow the procedure set out in the provisions of Part 1 of Schedule 2 of the Act. (See sec. 5.) The Director is required to give notice to the person in respect of whom he proposes to make the order, informing him of its substance and, if it is to be made under sec. 3, of the grounds on which he intends to rely. The person affected must be given not less than twenty-one days notice to enable him to submit his representations in writing why the order should not be made and stating whether he wishes to make oral representations. The Schedule makes provision for the hearing of representations and requires the Director to take them into account. He must give notice of his decision and of the terms of the order, together with his reasons, including the facts relied on.

5

Sec. 7 of the Act confers on the person affected by the order a right to appeal from the decision of the Director to the Secretary of State. The Secretary of State can make regulations for the conduct of such appeals. By sec. 7(4) an appellant who is dissatisfied in point of law with the decision of the Secretary of State can appeal to the High Court and with leave to this court from the decision of the High Court. See sec. 7(5).

6

The power of the Director to make an order is given in sec. 3 which provides:

"(1) The power of the Director General of Fair Trading (in this Act referred to as "the Director") to make an order under this section with respect to any person shall not be exercisable unless the Director is satisfied that that person -

(a) has been convicted of -

(i) an offence involving fraud or other dishonesty or violence, or

(ii) an offence under any provision of this Act, other than section 10(6), section 22(3) or section 23(4), or

(iii) any other offence which, at the time it was committed, was specified for the purposes of this section by an order made by the Secretary of State …"

7

Sec. 3(2) provides:

"Subject to sub-section (1) above, if the Director is satisfied that any person is unfit to carry on estate agency work generally or of a particular description he may make an order prohibiting that person -

(a) from doing any estate agency work at all; or

(b) from doing estate agency work of a description specified in the order;

and in determining whether a person is so unfit the Director may, in addition to taking account of any matters falling within subsection (1) above, also take account of whether, in the course of estate agency work or any other business activity, that person has engaged in any practice which involves breaches of a duty owed by virtue of any enactment, contract or rule of law and which is material to his fitness to carry on estate agency work.

(3) For the purposes of paragraphs (c) and (d) of subsection (1) above, -

(a) anything done by a person in the course of his employment shall be treated as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval, unless the employer shows that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description; and

(b) anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that person shall be treated as done by that other person as well as by him; and

(c) anything done by a business associate of a person shall be treated as done by that person as well, unless he can show that the act was done without his connivance or consent.

(4) In an order under this section the Director shall specify as the grounds for the order those matters falling within the paragraphs (a) to (d) of subsection (1) above as to which he is satisfied and on which, accordingly, he relies to give him power to make the order.

(5) If the Director considers it appropriate, he may in an order under this section limit the scope of the prohibition imposed by the order to a particular part of or area within the United Kingdom."

8

By sec. 3(8), if a person fails without reasonable excuse to comply with the Director's order, he is liable to conviction on indictment or to a fine not exceeding the statutory maximum on summary conviction. It is also relevant to set out the provisions of sec. 5(1):

"The provisions of Part I of Schedule 2 to this Act shall have effect -

(a) with respect to the procedure to be followed before an order is made by the Director under section 3 or section 4 above; and

(b) in connection with the making and coming into operation of any such order."

9

and sub-sec. (4):

In any case where -

(a) an order of the Director under section 3 above specifies a conviction as a ground for the order, and

(b) in conviction becomes spent for the purposes of the Rehabilitation of Offenders Act 1974 or any corresponding enactment for the time being in force in Northern Ireland,

then, unless the order also specifies other grounds which remain valid, the order shall cease to have effect on the day on which the conviction becomes so spent."

10

By para. 1 of Schedule 1:

"A conviction which is to be treated as spent for the purposes of the Rehabilitation of Offenders Act 1974 or any corresponding enactment for the time being in force in Northern Ireland shall be disregarded for the purposes of sec. 3(1)(a) of this Act."

11

Mr Samuel Antonelli, the appellant, is a property agent who until 1985, at any rate, accepts that he was conducting estate agent's business in this country. Earlier in his life he worked in the realty business in Detroit. There in the Recorder's Court he was convicted in 1973 of the crime of "burning real estate other than a dwelling house between 1st-8th December 1971", an offence contrary to ch. 750 sec. 73 of the Michigan Criminal Law Act. On 12th June 1973 he was ordered to serve between 2 1/2-10 years imprisonment for that offence. He did not serve the sentence but left for Israel and from there came to the United Kingdom. He has not returned to serve his sentence.

12

As a result of the appellant's activities in this country, the Director served him with a notice of proposal under sec. 3(2)(a) of the Act. The notice stated that the Director proposed to make an order prohibiting the appellant from doing any estate agency work at all. The reasons for the proposed order were that the appellant had been convicted of an offence involving violence within the meaning of sec. 3(1)(a)(i) of the Act in that on 28th February 1973 at the Recorder's Court of the city of Detroit the appellant was convicted of arson (by burning real estate other than a dwelling house) and was sentenced to a term of imprisonment of not less than 2 1/2 years nor more than 10 years. The appellant did not make written representations or indicate that he intended to do so orally. The Director reminded him of his right to do so on 10th September 1991. No representations were received from him and on 2nd October 1991 the Director served him with a notice of his decision that he was satisfied that the appellant had been convicted of arson at the Recorder's Court of the City of Detroit on 28th February 1973 and had been sentenced to a term of imprisonment and that the offence was an offence of fraud or other dishonesty within the...

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