Fisher v Director General of Fair Trading
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WALLER,LORD JUSTICE KERR,SIR DAVID CAIRNS |
| Judgment Date | 16 October 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J1016-2 |
| Docket Number | 81/0420 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 October 1981 |
[1981] EWCA Civ J1016-2
IN THE HIGH COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM
THE RESTRICTIVE PRACTICES COURT
Royal Courts of Justice
Lord Justice Waller
Lord Justice Kerr
Sir David Cairns
81/0420
No 1 of 1980
Re: Section 26(2) of the Restrictive Trades Practices Act 1976
MR R.A. FISHER (the Appellant) appeared in person.
MR F.M. FERRIS, Q.C., (instructed by the Treasury Solicitor) appeared on behalf of the Director-General of Fair Trading.
MR A.P. GRAHAM DIXON, Q.C., and MR R.N. FOWLER (instructed by Messrs Bristows, Cooke & Carpmael) appeared on behalf of the National Greyhound Racing Club Ltd.
This is an appeal from a decision of the Restrictive practices Court, Mr Justice Mocatta giving the judgment on the 27th March of last year. The Court held that there was no agreement between persons licensed by the National Greyhound Racing Club Ltd., to which the Restrictive Trade Practices Act 1976 applies. I shall refer hereafter to the National Greyhound Racing Club Ltd., as the NGRC.
The facts are fully set out in the judgment of Mr Justice Mocatta and it is sufficient for this case to summarise those facts. Mr Fisher is a permit holder licensed by the stewards of the NGRC to train greyhounds and is subject to their rules.
The NGRC is a limited company whose objects include acting as the judicial body for the discipline and conduct of greyhound racing in England, Wales and Scotland. Also, after consultation with the British Greyhound Racing Board, to frame and amend a code of rules for greyhound racing. Further, to license greyhound race courses, trainers, kennel hands and officials. Also to improve the care and welfare of greyhounds generally.
There are 107 greyhound racing stadia in Great Britain, of which 48 are licensed by the NGRC. The remainder are unapproved by the NGRC. A principal objective of the rules of the NGRC is to achieve an orderly and reliable method of conducting greyhound racing in England, Wales and Scotland. The NGRC licenses, among others, race courses, race course executives, trainers and owners. The rules are such as to prohibit those who train or race, or are otherwise licensed by the NGRC, from being associated with any unapproved track.
There is one rule, 174(i) which reads as follows: "The NGRC Stewards shall have power at any NGRC Inquiry to disqualify and/or warn off any person, without necessarily assigning a reason for so doing, if they in their discretion are satisfied that such person: Has acted in any official capacity on, or has been concerned with the promotion or sponsorship of races at, or has entered, owned or had charge of a greyhound at the time such greyhound ran at, any unapproved race course in England, Scotland or Wales."
Mr Fisher bases his application on Section 11 of the Restrictive Trade Practices Act 1976, and Statutory Rule and Order 98 of 1976. The effect is to bring all restrictive agreements as to services under control except those set out in Schedule 1 of the Act. Section 11(1) reads as follows: "The Secretary of State may by statutory instrument make an order in respect of a class of services described in the order (in this Act referred to, in relation to an order under this Section, as 'services brought under control by the order') and direct by the order that this Act shall apply to agreements (whenever made) which (a) are agreements between two or more persons carrying on business within the United Kingdom in the supply of services brought under control by the Order, or between two or more such persons together with one or more other parties; (b) are agreements under which restrictions, in respect of matters specified in the Order for the purposes of this paragraph, are accepted by two or more parties". The Statutory Instrument mentioned in the first part of that sub-section is the order which I have already mentioned.
By Section 43(1): "Agreement, referred to in sub-section (1) Section 11, "includes any agreement or arrangement, whether or not it is or is intended to be enforceable (apart from any) provisions of this Act) by legal proceedings, and references in this Act to restrictions accepted or information provisions made under an agreement shall be construed accordingly".
The application was made by Mr Fisher to the Restrictive Practices Court under Section 26, sub-section (2) which reads: "The Court may, on the application (a) any person party to an agreement; or (b) the Director, in respect of an agreement of which particulars have been furnished to him under this Act, declare whether or not the agreement is one to which this Act applies, and if so whether or not it is subject to registration under this Act".
Mr Fisher makes the application as a person whom he says is party to an agreement.
Mr Fisher argues that, in this case, there was an agreement or an arrangement for the supply of services to which the Act applied. It is agreed between the parties that trainers and race course executives do provide services. The Judge, in his Judgment, said "it was not suggested that the NGRC itself supplied services", but Mr Fisher, in the course of argument before us, said this was a misunderstanding. However, I am satisfied there was no evidence that the NGRC provided services.
It was also agreed before the Restrictive Practices Court that Rule 174(i), which I have already read, contains a restriction in the supply of services.
The evidence also was that every trainer and every race course executive of any of the 48 tracks licensed by the NGRC was individually licensed by the NGRC.
Mr Fisher, the Appellant, who presented his case in person, relied in part on certain agreements between the operators of tracks and owners setting out the terms on which owners could enter dogs on tracks licensed by the NGRC, which tracks made the NGRC rules part of the contract, and although there was no evidence of the terms, he submitted the Court should infer that race course executives and trainers have similar contracts and that it was implicit in each contract between the two, that the parties would be bound by the rules of the NGRC.
Mr Fisher's case was that the effects of all these bilateral agreements was to create a series of implied interlocking agreements or a multilateral agreement between trainers and executives and others providing services; that this agreement between trainers and executives would have the restriction imposed by Rule 174(i) and that accordingly it would be covered by Section 11.
The case for the NGRC was that in each individual case there was an agreement between the NGRC and the individual trainer or race course executive (as the case may be) and that each bilateral agreement was not one to which the Restrictive Trade Practices Act applied, and that no wider multilateral agreement exists or is to be inferred.
The NGRC submitted that the learned Judge's conclusion, that there was no agreement between persons licensed by the NGRC to which the Act applies, was correct.
There are certain background matters of fact to which I should refer before considering the authorities and their application to the facts in this case.
It is important to bear in mind the independent constitution of the NGRC. The Club was established to govern the conduct of greyhound racing in England, Wales and Scotland. The Club, by its constitution, has seven members who, except for the veterinary adviser or stipendiary steward, must have no financial interest in the ownership, control, management or promotion of greyhound racing. The Club makes rules in the interests of the greyhound racing public. These interests are quite different from the persons licensed. In making rules, the Club has to obtain the agreement of the Greyhound Racing Board, but this, in my view, does not impair its independence.
In his Judgment, Mr Justice Mocatta said: "The crucial issue in the case is whether by becoming a licensee of the NGRC and subjecting himself to the Rules of Racing of the Club, the individual licensee merely made a bilateral agreement with the Club or also made an agreement with others licensed by the NGRC on the same terms so that multilateral agreements were thereby created giving rise to mutual obligations inter se." This is the main question which this Court has to consider though Mr Fisher draws attention to the fact that "agreement" includes by definition "arrangement".
There is no express multilateral agreement. The question therefore is whether the facts are such that a multilateral agreement should be implied, as Mr Fisher submits, or whether there are no, or no sufficient grounds, for drawing such an inference.
The principles on which terms should be implied are set out in the well-known passage from " The Moorcock", XIV Probate page 64, in the Judgment of Lord Justice Bowen at page 68, where he said: "Now, an implied warranty, or, as it is called, a covenant in law, as distinguished from an express contract or express warranty, really is in all cases founded on the presumed intention of the parties, and upon reason. The implication which the law draws from what must obviously have been the intention of the parties, the law draws with the object of giving efficacy to the transaction and preventing such a failure of consideration as cannot have been within the contemplation of either side; and I believe if one were to take all the cases, and they are many, of implied warranties or covenants in law, it will be found that in all of them the law is raising an implication from the presumed intention of the parties with the object of giving to the transaction such...
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