Davies v Sumner
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Elwyn-Jones,Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Templeman |
| Judgment Date | 15 November 1984 |
| Judgment citation (vLex) | [1984] UKHL J1115-2 |
| Date | 15 November 1984 |
| Court | House of Lords |
[1984] UKHL J1115-2
House of Lords
Lord Keith of Kinkel
Lord Elwyn-Jones
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Templeman
My Lords,
This appeal raises an issue as to the proper construction of section 1(1) of the Trade Descriptions Act 1968.
The respondent was convicted by a magistrates' court sitting at Flint upon an information laid by the appellant, a consumer protection department investigation officer, charging him with having, on 1 August 1982 at Bagillt in the county of Clwyd, applied to a Ford motor car a false trade description to the effect that it had travelled 18,100 miles whereas the true mileage was in excess of 118,000 miles, contrary to section 1(1)( a) of the Act of 1968.
The respondent appealed by way of case stated, and on 25 July 1983 a Divisional Court (Robert Goff L.J. and Forbes J.) [1984] 1 W.L.R. 405, allowed his appeal and certified that a point of law of general public importance was involved. The prosecutor now appeals, with leave, to this House.
The facts set out in the stated case may be summarised as follows. The respondent at the material time was a self-employed courier the whole of whose activity lay in transporting films, video tapes and other material for the Harlech Television Company from Mold to Cardiff and occasionally from and to other destinations. For this purpose he provided himself with the Ford motor car referred to in the information, which he purchased in June 1980. He had previously rented a car for a few months. He was paid a fee for each journey undertaken and also a subsistence allowance. Between June 1980 and July 1981 the respondent had travelled over 100,000 miles in the car, and he thereupon decided to purchase a new one. On 31 July 1981 he visited the showroom of a car dealer, Messrs. H. J. Davies, at Bagillt in Clwyd, and offered the Ford car in part exchange for the purchase of a new Ford. Upon inspection by a servant of the dealer, the odometer on the car was seen to show a recorded mileage of 18,100 miles, and the appearance of the car was consistent with this. The odometer was fitted with five digits only, and in fact had gone right round the clock, so that the true mileage was 118,100. The respondent knew of this but did not disclose it, and it was agreed that the dealer would allow £3,300 for the old car against the purchase price of £8,270 for the new one. On 1 August 1981 the respondent turned in his old car, collected the new one, and signed a sales invoice for the former. This showed a mileage of 18,100 miles, but before the Divisional Court it was stated that this was added later. The old car had been used almost, but not quite exclusively, in the course of the respondent's courier business.
The question for the opinion of the divisional court was:
"When a person who in the course of his occupation as a self-employed courier almost exclusively uses his car for the purpose of that occupation, disposes of that vehicle for another vehicle, is that a transaction in the course of 'trade or business' for the purpose of section 1 of the Trade Descriptions Act 1968?"
The question certified by the court was in slightly different terms:
"Whether when a person who almost exclusively in the course of his occupation uses his car for the purpose of that occupation and then disposes of that vehicle for another for similar use he acts in the course of a trade or business when applying a false trade description on the said sale"
Section 1(1) of the Act of 1968 provides:
"Any person who, in the course of a trade or business, - ( a) applies a false trade description to any goods; or ( b) supplies or offers to supply any goods to which a false trade description is applied; shall, subject to the provisions of this Act, be guilty of an offence."
There can be no doubt that the respondent, when he traded in his car, applied a false trade description to it, in respect that he represented that it had travelled 18,100 miles when the true mileage was 118,100 miles. "Trade description" is defined by section 2(1) of the Act as being an indication, "direct or indirect, and by whatever means given," of any of various matters with respect to any goods including: "( j) other history, including previous ownership or use." The question is whether the respondent applied the trade description to the car "in the course of a trade or business."
The respondent carried on a business which is described in the case stated as that of a self-employed courier. What he did was to make his services available to the Harlech Television Company, for payment, for carrying their films and other...
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