Focus (Diy) Ltd v London Borough of Hillingdon
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY,MR JUSTICE UNDERHILL |
| Judgment Date | 09 May 2008 |
| Neutral Citation | [2008] EWHC 1152 (Admin) |
| Date | 09 May 2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8312/2007 |
[2008] EWHC 1152 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Ouseley
Mr Justice Underhill
CO/8312/2007
Mr F A Philpott (instructed by Messrs Margetts & Ritchie) appeared on behalf of the Claimant
Mr R Heller and Mr J Talbot (instructed by London Borough of Hillingdon, Legal Services) appeared on behalf of the Defendant
Focus (DIY) Limited is a retailer of substance in DIY goods. On 10th August 2004, the prosecuting authority, the London Borough of Hillingdon, carried out a test purchase of a 3.13 metre aluminium extending ladder of the type Hailo HVS from one of the defendant's stores. The prosecutor concluded, following test failures, that the ladder did not comply with the standards which it was held out as complying with and told the defendant so. On 21st October 2004, an officer of the prosecuting authority purchased another ladder of that same type from the defendant, tested it and again concluded that it failed the tests. Accordingly, an information was laid against the defendant alleging that on this latter occasion it had sold an item to which a false trade description applied, namely that the ladder complied with Standard EN 131 when in fact it did not so contrary to section 1(1)(b) of the Trade Description Act 1968.
The Magistrates heard the case over five days, 5th and 6th March, 24th and 29th May and 4th June 2007, after a number of preliminary hearings. They convicted the defendant, fined it £4,500 and ordered it to pay costs of £44,357.
The defendant new appeals by case stated on the following grounds: (1) the court should have interpreted the relevant standard as requiring tests to be carried out in a way in which they were not carried out in two respects; (2) the destruction of the ladder in testing meant that the prosecution should have been halted as an abuse of process; (3) the written evidence of two German witnesses should have been admitted; (4) the prosecution evidence as to the way in which the tests were carried out should have been ruled inadmissible; and (5) the order for costs was unlawful because it was grossly disproportionate to the fine. I should add that that is not the order in which the questions in the case stated are put. The Justices found the following about the testing body:
“Attached to both ladders were labels indicating that they complied with standard EN 131. This is the European standard specifying the general features, requirements and test methods for ladders. The Respondent sent the ladders to British Standards Institution Products Services (BSI) to test the ladders to see if they did comply with the Standard. The British Standards Institution is the independent national body responsible for preparing British Standards. It is also the body responsible for preparing the UK view on standards in Europe and at international level. BSI Product Services, the testing arm of the British Standards Institution, is accredited by UKAS to carry out the test procedures in this case. UKAS is recognised by the Department of Trade and Industry as the national body responsible for assessing and accrediting the competence of organisations in the fields of calibration, testing, inspection and certification of systems, products and personnel.”
The appellant's first contention related to clause 3.9 of the Standard EN 131. The Justices rejected the interpretation contended for by the appellant that, as a matter of the true interpretation of the standard, the ladder for certain purposes had to be tested in the vertical position and that a failure in the horizontal position could not therefore be evidence that that requirement of the standard had not been met. Clause 3.9 provides:
“Extending ladders are not intended for being used as standing ladders. They shall be so designed that the top angle between the legs shall not be more than 10 degrees, if the ladder is wrongly put up as a standing ladder.”
There was no dispute but that BSI conducted this test with the ladders in the horizontal rather than vertical position and that that was the procedure accredited by UKAS.
In my judgment, the Justices were right to interpret clause 3.9 in the way they did. The Standard clearly does not require the test to be carried out in a vertical position. It requires that the performance of a ladder, were it erected wrongly as a standing ladder, be tested. The question therefore is not one of interpretation but one of expert evidence as to whether a test in the horizontal position suffices for that purpose. As a matter of evidence, the test procedure in the horizontal position was accredited by UKAS and the challenge was not to the ability of the horizontal test procedure to meet the requirements of the standard if the interpretation put forward by the defendant was wrong.
The second contention in relation to test methods related to clause 4.2. Clause 4.2 is as follows:
“Strength test of the ladder
The test shall be carried out on the complete ladder. In the case of extending ladders and sectional ladders the test shall be carried out on the complete extended ladder. A pre-load of 500N [newtons] shall be applied for a duration of one minute. The position of the ladder after removal of the pre-load is the origin for measurement. A test load F of 1000N shall be applied for a duration of one minute. The measurement shall be taken one minute after removal of the test load. The permanent deformation f of the ladder shall not exceed 1% of the distance l between the supports.”
The defendant contended that “permanent deformation” was a term of art which meant the deformation of the ladder not after a minute, which would be called “residual deflection” but after a much longer period in which the deflection might recover to some extent before it reached the permanent state of deformity. That period could be as much as 24 hours and so testing permanent deformation after just one minute could not satisfy the requirements of the standard.
The Justices concluded that “permanent deformation” and “residual deflection” were used interchangeably in the standard and that the standard clearly only required one measurement one minute after the test load of 1000N had been removed. In my judgment, they were clearly right on this. The Standard sets out a detailed sequence of pre-test and test loads and precise timings for the measurements. It is clear that the standard did not then leave some further undefined period to elapse, lasting so long as it might take to achieve “permanent deformation”, whatever that might mean. “Permanent deformation” for these purposes in clause 4.2 is clearly the degree of deformation or deflection which is found on the ladder one minute after the test load is removed.
The third ground relates to abuse of process because of the destruction of the ladder. The ladder was cut up for the purposes of a test under clause 4.9 of the standard, which required a test of the strength of the hooks of the extendable parts of the ladder. The ladder was cut so that the test could be carried out in the rig operated by BSI, which was too small to take the full length of the ladder. The ladder passed this test. The appellant complains that BSI could have used a larger rig, costing no more than £2,000, and could thus have avoided cutting up the ladder. Although the consequence of the cutting up of the ladder did not deprive the appellant of the chance of testing the strength of the hooks, just as the prosecutor had done, it meant that the defendant could not replicate on it the other tests which it had failed.
The defendant said that this meant that the prosecutor had breached section 30 of the Trade Descriptions Act 1968, which provides:
“Where any goods seized or purchased by an officer in pursuance of this Act are submitted to a test, then -
…
(b) if the goods were purchased and the test leads to the institution of proceedings for an offence under this Act, the officer shall inform the person from whom the goods were purchased, … of the result of the test;
and shall, where as a result of the test proceedings for an offence under this Act are instituted against any person, allow him to have the goods tested on his behalf if it is reasonably practicable to do so.”
The defendant said that it was reasonably practicable to preserve the ladder by the purchase and use by BSI of a test rig at modest cost which would have avoided cutting up the ladder to fit into the particular rig which they had. The Justices found that there was no abuse of process, that the tester could choose the length of ladder tested and that it had to be cut to fit into the BSI rig. They also found that there would have been no value in testing the ladder even if uncut because the permanent deformation test could not be performed again on the same, but by now deformed, ladder. This latter point was disputed but no question of law was raised as to the evidential basis of that finding or its rationality in the case stated, whatever may have been urged to the Magistrates or in the skeleton argument.
As to abuse of process, first, on the true construction of section 30, the requirement to allow the person from whom the goods were purchased to have the goods tested where that is reasonably practicable only arises after the tests have been carried out by the prosecutor. There is no requirement in section 30 that the tests only be carried out in such reasonably practicable manner, that the goods are...
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Blows v Herefordshire District Council
...Prosecutions [2006] EWHC (Admin) 14;R v Baker and Baker [2007] EWCA Crim 834 at paragraph 13; and Focus (DIY) Ltd v Hillingdon LBC [2008] EWHC 1152 (Admin). In that case, Ouseley J said at paragraph 31: “Given that no arithmetical relationship determines the existence of gross disproportion......