Courts of Appeal
| DOI | 10.1177/002201837403800203 |
| Published date | 01 April 1974 |
| Date | 01 April 1974 |
| Subject Matter | Article |
Court of
Appeal
INTERPRETATION
OF
STATEMENT
IN
DOCUMENT
ALLEGED
TO
BE
FALSE
R. v. Sunair Holidays Ltd.
IN the law of deceit, whether civil or criminal, the distinction
between astatement of fact
and
a promise is vital. In the tort of
deceit, in the old criminal law of false pretences,
in
s.15(4)
of the
Theft
Act, 1968
and
in s.14 of the
Trade
Descriptions Act, 1968,
it is clear
that
apronouncement which is no more
than
apromise
as to the
future
cannot be made the basis of an action in
tort
or
of a criminal prosecution.
The
decision of the
Court
of Appeal in
R.
v. Sunair Holidays Ltd. (1973, 2
All
E.R,. 1233) once more
emphasises this for the purposes of
the
Trade
Descriptions Act,
1968, although it might be
thought
that
it affords a
further
example of the way in which the courts have limited the protection
which
the
draftsman of
that
Act wished to afford the consumer.
The
appellants were charged with abreach of s.14( 1) (ii) of
the
Act, which provides
that
it shall be an offence for any person in
the
course of any
trade
or business to make, intentionally or reck-
lessly, a false statement as to "... ... (ii)
the
nature
of any services,
accommodation or facilities provided in
the
course of
any
trade
or business."
The
basis of the charge was
that
they
had
recklessly
made
false statements in one of their brochures
about
a hotel in
Spain.
They
were convicted on three counts, relating to statements
that
the hotel
had
aswimming pool,
that
there were push chairs
for hire
at
the
hotel,
and
that
the hotel provided special dishes
for children. Aclient read
the
brochure
and
booked accommoda-
tion on
January
7; when he arrived in Spain on
March
27, these
facilities were
not
available, although
the
appellants
had
advertised
holidays as available from
March
7onwards.
In
dealing with
the
proper construction of s.14 of
the
Act,
MacKenna
J. emphasised
that
the
section is concerned only with
'statements of which it
can
be said
that
they were
at
the
time
they are made, 'false'.' These
must
be statements of fact,
past
or
present. Apromise or prediction as to the
future
cannot as such
be a statement of this
nature,
for a promise
mayor
may
not
be
kept,
and
aprediction
mayor
may
not
come
true;
but
neither
can
be
true
or
false when made.
Thus,
s.l4
can
be said
to
deal
with promises
or
predictions only when they impliedly contain
108
COURT
OF
APPEAL 109
astatement as to
the
past or the
present-as,
for instance, where
apromisor impliedly asserts his present intention or his present
ability to perform his promise or where aperson making apredic-
tion asserts his belief in its coming
about
or his ability to
bring
it about.
If,
therefore, aconviction is obtained
under
s.14 arising
out
of a promise or prediction, it
can
never be because
the
promise
has been broken or
the
prediction falsified by events; it
must
be
because there was the false statement of the fact of
the
speaker's
state of mind or means. Applying this distinction to
the
facts of
the
instant case,
the
court
held
that
the statements made with
regard to the hire of push-chairs
and
the provision of special
meals for children
must
have related to the future, since
the
hotel
was closed
at
the
date
on which the false statements were alleged
in
the
indictment to have been made.
The
conviction based on
the statement
about
the swimming
bath
was also quashed, on the
(different) ground
that
the
trial
judge
had
failed to direct the
jury
in accordance with the distinction between statements of past
or present fact
and
statements as to
the
future.
The
judge
had
therefore been wrong in asking
the
jury
to select
the
appropriate
date
and
to consider whether
the
statements were
true
at
that
date.
The
setting-aside of the convictions in this case
and
in Sunair
Holidays
Ltd.
v. Dodd
(1970,2
All
E.R.
410)
and
the upholding
of the convictions in
R.
v. Clarksons Holidays
Ltd.
(1972, 57 Cr.
App, Rep.
38)
show how important is the question of the proper
construction of
the
document containing
the
statements which are
alleged to contravene s.14 of the Act.
It
is therefore the more
important to decide in such a case whose
duty
it is-s-the judge's
or the
jury's-to
construe the document. In Halsbury's Laws of
England
(3rd
Ed., vo1.l5, p.276, para.503)
and
in Cross on
Evidence
(3rd
Ed., 1969, pp.50-51), it is stated
that
the construc-
tion of documents is a matter for the judge
and
that
libel constitutes
the
only exception to
that
rule.
In
R.
v. Clarksons Holidays
Ltd.
(supra), it was agreed by the parties
at
the trial
and
accepted by
the
trial
judge
and
by
the
Court
of Appeal
that,
in dealing
with
a case
under
s.14 of the
Trade
Descriptions Act, 1968,
it
was for
the
jury
to construe the document, as it would do in a case of
libel.
In
R.
v. Sunair Holidays
Ltd.
(supra), the
Court
of Appeal
has now expressly sanctioned
what
was tacitly accepted by
that
court
in the earlier case. But
MacKenna
J.
remarked
that,
if
the
court's
assumption
that
this is
the
right course is correct, the
books on evidence
"may
need
to
be revised",
(p.1240d).
Presumably, it is now for the
jury
to interpret adocument in
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