DSG Retail Ltd v Oxfordshire County Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY,MR JUSTICE ASTILL |
| Judgment Date | 16 March 2001 |
| Neutral Citation | [2001] EWHC 253 (Admin) |
| Date | 16 March 2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO 4793/00 |
[2001] EWHC 253 (Admin)
IN THE HIGH COURT OF JUSTICE
(DIVISIONAL COURT)
QUEEN'S BENCH DIVISION
Lord Justice Kennedy and
Mr Justice Astill
CO 4793/00
MR F.A. PHILPOTT (instructed by DLA, Birmingham B2 4DL) appeared on behalf of the Claimants.
MR K SCHOLZ (instructed by Oxfordshire County Council, Oxford) appeared on behalf of the Defendants.
Friday, 16th March 2001
This is the defendant's appeal by way of case stated from a decision of the Crown Court at Oxford on appeal from justices sitting in and for the Petty Sessional Division of Oxford.
The facts are set out for the most part in the case stated, and they are as follows:
(a) The Appellants, trading as Dixons, caused to be displayed in their store at Clarendon Centre, Oxford, notices which read:
" PRICE CHECK PRICE —WE CAN'T BE BEATEN WE GUARANTEE to MATCH ANY LOCAL PRICE Dixons."
The Crown Court found that the Appellants
".. had chosen as a matter of policy to omit from the notice any reference to the existence of conditions."
It has been made clear to us this morning by Mr Scholz, appearing on behalf of the Respondent, that it was common ground in the Crown Court that conditions did in fact apply at all relevant times.
On the 12th April 1999 Miss Ruth Taylor, a principal Trading Standards officer visited the store, and saw a number of the notices. She also saw an Aiwa CSD MD5 minidisk/CD system on display at £299.99, and without revealing who she was asked an assistant if Dixons would match the Allders price of £189.99. Allders Department Store in the Westgate Centre, Oxford had been offering such items at that price. The assistant made a telephone call and returned, stating that he had been told that they could not match the price.
Miss Taylor did not ask the reasons or query what was said but asked that the branch manager be called after revealing her identity as a Trading Standards Officer.
Those events on 12th April 1999 formed the subject matter of two informations. The first alleged that on that date the Appellants, in the course of their business, gave to consumers an indication by means of a notice, in the form to which I have referred, which was misleading as to the price at which goods were available, contrary to section 20(1) of the Consumer Protection Act 1987.
The second information alleged that on that date the Appellant, in the course of its business, gave to Ruth Alison Taylor an indication, by means of a notice worded in that way, which was misleading as to the price at which an Aiwa CD system was available in that the price of £299.99 being asked for the said system was not reduced to match a local competitor's price of £189.99, again contrary to the same section of the same act.
On 20th May 1999, Miss Taylor again visited the Appellants' Oxford store and saw 38 notices with the same text and seven further notices with a different wording. They read thus:
"Every week we compare prices in the national press so you know you can't buy better. If you find the same offer cheaper at a local store and notify us within seven days of purchase, we guarantee to refund the difference. The product must be new, complete and in stock, we do not match mail order, clearance, ex-display, special order, closing down or extended warranty prices."
As to those seven further notices, the Crown Court said:
"We were satisfied, and found as a fact that the conditions which the Appellant applied to the price match promise were met by Allders offer."
As to 20th May, the information before the Justices and subsequently considered by the Crown Court read that on that date, in the course of its business, the Appellants gave to consumers an indication by means of a notice, saying " Price Check. Price we can't be beaten we guarantee to match any local price Dixons" which was misleading as to the price at which goods were available, contrary to the same section of the same Act.
In relation to both visits and an earlier visit by Mr Lipton, the Crown Court found as follows:
"On the occasions when Mr Lipton and Miss Taylor were told by assistants at the Store that Allders price would not be matched, those assistants were acting, we inferred, on instructions from their superiors within the Store. No explanation was offered by the Appellant as to why the assistants or those superiors within the Store had adopted the course they did.
The Appellant had issued a written instruction to its Branch Managers which, so far as it is material, was in the following terms:
' Price promise
The price promise must be honoured whenever the conditions are satisfied, i.e., the same goods are available locally at a lower price and the customer calls back within 7 days of purchase. There is a number of exemptions where we do not match price. Refer to the show card for guidance'."
Mr Scholz invites our attention, particularly, to those last two sentences.
In respect of the second information, the Crown Court found that the defence of due diligence failed because the assistants were clearly acting on instructions from superiors in the Appellant's store in Oxford. Those instructions the Crown Court regarded as reflecting the policy approach which was well-established in this large branch of Dixons. No evidence was adduced from either sales or managerial staff at the branch, explaining the refusal or suggesting that it was known to be contrary to company policy. The Crown Court concluded that in these circumstances the Appellant had failed properly to supervise and control the operation of its Oxford branch.
Two questions are posed for the consideration of this Court namely
"(a) Can an offence be committed under Section 20 of the Consumer Protection Act 1987 without any evidence to prove that an indication applied to specific goods which were available at a specific price? and
(b) Does the defence of due diligence fail if the persons responsible for giving a misleading price indication, in refusing to conform to a price match promise, are acting on instructions from their superiors?"
The statutory provisions which are relevant and to which, to some extent, I have already referred, are to be found in the 1987 Act, Part III, subtitled "Misleading price indications" beginning at section 20.
So far as material they read as follows:
"20(1)… a person shall be guilty of an offence if, in the course of any business of his he gives (by any means whatever) to any consumers an indication which is misleading as to the price at which any goods… are available.
(3) For the purposes of this section, it shall be immaterial-
(a) whether the person who gives or gave the indication is or was acting on his own behalf or on behalf of another;
(b) whether or not that person is the person… from whom the goods… are available; and
(c) whether the indication is or has become misleading in relation to all the consumers to whom it is or was given or only in relation to some of them."
In subsection (6) "consumer" is defined in relation to any goods as meaning:
"…any person who might wish to be supplied with goods for his own private use or consumption."
" Price" is defined, in relation to any goods, as meaning:
"The aggregate of the sums required to be paid by a consumer for or otherwise in respect of the supply of goods or… any method which will be or has been applied for the purpose of determining that aggregate."
Section 21 deals with the meaning of "misleading" and subsection (1) provides that:
"…an indication given to any customer is misleading what is couveyed…includes any of the following that is to say-
(a) that the price is less than in fact it is;
(e) that the facts or circumstances by reference to which the consumers might reasonably be expected to judge the validity of any relevant comparison made or implied by the indiction are not what in fact they are.
(2) for the purposes of section 20 above, an indication given to any consumers is misleading as to a method of determining a price if what is conveyed by the indication or what those consumers might reasonably be expected to infer from the indication or any omission from it, includes any of the following, that...
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