Davies v Sumner

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Keith of Kinkel,Lord Elwyn-Jones,Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Templeman
Judgment Date15 Nov 1984
Judgment citation (vLex)[1984] UKHL J1115-2

[1984] UKHL J1115-2

House of Lords

Lord Keith of Kinkel

Lord Elwyn-Jones

Lord Bridge of Harwich

Lord Brandon of Oakbrook

Lord Templeman

Sumner
(Appellant)
and
Davies (A.P.)
(Respondent)
(on Appeal from a Divisional Court of the Queen's Bench Division)
Lord Keith of Kinkel

My Lords,

1

This appeal raises an issue as to the proper construction of section 1(1) of the Trade Descriptions Act 1968.

2

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.

3

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.

4

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.

5

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?"

6

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"

7

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."

8

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."

9

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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22 cases
  • Stevenson and Another v Rogers
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 8 December 1998
    ...and at face value, he recited and purported to apply the construction applied to similar words in the two leading authorities of Davies -v- Sumner [1984] 1 WLR 1301 per Lord Keith at 1304E-1306B (relating to s.1(1) of the Trade Descriptions Act 1968 ) and R & B Customs Brokers Co Ltd -v......
  • Titan Steel Wheels Ltd v Royal Bank of Scotland Plc [QBD (Comm)]
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • 11 February 2010
    ...QC (instructed by Denton Wilde Sapte) for the defendant. The following cases were referred to in the judgment: Davies v SumnerWLR [1984] 1 WLR 1301. Havering LBC v StevensonWLR [1970] 1 WLR 1375. Henderson v Merrett Syndicates Ltd [1994] CLC 918; [1995] 2 AC 145. IFE Fund SA v Goldman Sachs......
  • G. E. Capital Bank Ltd v Rushton and Another
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 14 December 2005
    ...and services insofar as they contain broadly comparable language. 29 Three such decisions have been drawn to our attention. The first is Davies v Sumner [1984] 1 W.L.R. 1301, a decision of the House of Lords on section 1(1) (a) of the Trade Descriptions Act 1968. This provides that "An......
  • Titan Steel Wheels Ltd v The Royal Bank of Scotland Plc
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • 11 February 2010
    ...private investor. 64 Against that background I now turn to the authorities. 10 Titan placed particular emphasis on three cases. First Davies v Sumner [1984] 1 WLR 1301 in the context of the Trade Descriptions Act 1968 s.1(1)(a). In that case the Court was concerned with the sale of a car by......
  • Request a trial to view additional results
1 books & journal articles
  • Selling in the Course of a Business Under the Sale of Goods Act 1979
    • United Kingdom
    • The Modern Law Review Nbr. 62-5, September 1999
    • 1 September 1999
    ...in section 14(2) ‘at their16 [1999] 2 WLR 1064.17 Judge Anthony Thompson QC, sitting as a deputy high court judge.18 Davies vSumner [1984] 1 WLR 1301 (involving a construction of Trades Description Act 1968, s1(1)); and R & B Customs Brokers Co Ltd vUnited Dominions Trust Ltd [1988] 1 W......

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