Formula One Autocentres Ltd v Birmingham City Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITCHELL,LORD JUSTICE ROSE |
| Judgment Date | 27 November 1998 |
| Judgment citation (vLex) | [1998] EWHC J1127-2 |
| Date | 27 November 1998 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3641/98 |
[1998] EWHC J1127-2
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Lord Justice Rose and
Mr Justice Mitchell
CO/3641/98
MR K DE HAAN (instructed by Messrs Kingsford Stacey Blackwell, London, WC2A 3UB) appeared on behalf of the Appellant.
MR I CROXFORD QC AND MR B BERLIN (instructed by Birmingham City Council, Birmingham, B2 5EN) appeared on behalf of the Respondent.
Friday, 27 November 1998
This is an appeal by way of Case Stated from an adjudication on 2 July 1998 by justices sitting at Birmingham Magistrates' Court. On that date the appellant company, Formula One Autocentres Limited, was convicted on 19 November 1996 of two contraventions of the Trade Descriptions Act 1968.
The allegations were these. First, that on 19 November 1996 in the course of a trade or business as a motor vehicle service centre, the company applied to a Rover motor vehicle, registration number J590 UOF, by means of an invoice (No. 035965), the false trade description "Formula One Master Service." That was contrary to section1(1)(a) of the Trade Descriptions Act 1968.
The second allegation was that on 19 November 1996 in the course of a trade or business as a motor vehicle service centre, the company supplied to Mohammed Tariq, a Rover motor vehicle, registration number J590 UOF, to which was applied [by means of the same invoice], the false trade description "Formula One Master Service." That was alleged to be contrary to section 1(1)(b) of the Trade Descriptions Act 1968.
At paragraph 2 of the case the justices set out their findings of fact. They were that at all materials times:
"(1) Formula One Auto Centres Limited were acting in the course of a trade or business.
(2) In or about November 1996 the Trading Standards Department of Birmingham City Council decided to check the quality of the vehicle servicing work carried out by Formula One Autocentres at their branch in Erdington, Birmingham.
(3) On 11th November 1996 Judy Dickinson, a Trading Standards officer employed by Birmingham City Council went to the Defendant's Erdington Branch and obtained a copy of the Defendant's specification for what it termed a "Master Service."
That document was annexed to the Case and it sets out clearly what the customers will get if they choose any one, of what I would call, three service options, that is to say either the Master Service, the Interim Service or the Short Service.
On 14 November 1996 the Rover car to which I have already referred was booked in for a service on November the 19th at the branch at Erdington, the quoted price being £59.95. The day before it was booked in, namely, 18 October, the car was inspected by a consultant automobile engineer in order to record its condition prior to the service. Following his inspection, the engineer noted 24 items that he felt needed attention, including the nine items set out at paragraph 2(5) of the Case. The engineer also sealed the gearbox oil level check plug in order to establish whether the transmission oil level was examined in the course of the service.
On November the 19th the vehicle was duly delivered to the Erdington branch. That was by officers of the Trading Standards Department. Later that day the officers collected the vehicle, paid for the service and were given an invoice which indicated that a Master Service had been carried out. That invoice was also annexed to the Case, Annexe 2.
On 21 November the engineer who had earlier examined the vehicle examined it again. The same nine defects detected during his inspection on the 18th, namely, those set out in paragraph 2(5) of the Case, were still present. Moreover, the seal on the gearbox oil level check plug was still intact indicating that the transmission oil level had not been checked.
According to the defendant's specification for a Formula One Master Service, the person carrying out the service should have checked the condition of the vehicle's lights, hoses, brake cylinders, and windscreen washer system. Tyre pressures and the level of oil in the gearbox should also have been checked. These items had not been checked. Accordingly, a Master Service had not been carried out as the invoice stated it had. So much for the findings.
The relevant provisions of the Trade Descriptions Act 1968 are sections 1–4:
"1 Prohibition of false trade description
(1) 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.
(2) Sections 2 to 6 of this Act shall have effect for the purposes of this section and for the interpretation of expressions used in this section, wherever they occur in this Act.
2 Trade description
(1) A trade description is an indication, direct of indirect, and by whatever means given of any of the following matters with respect to any goods or parts of goods, that is to say—
(a) quantity, size or gauge;
(b) method of manufacture, production, processing or reconditioning;
(c) composition;
(d) fitness for purpose, strength, performance, behaviour or accuracy;
(e) any physical characteristics not included in the preceding paragraphs;
(f) testing by any person and results thereof;
(g) approval by any person or conformity with a type approved by any person;
(h) place or date of manufacture, production, processing or reconditioning;
(i) person by whom manufactured, produced, processed or reconditioned;
(j) other history, including previous ownership or use.
(2) The matters specified in subsection (1) of this section shall be taken—
(a) in relation to any animal, to include sex, breed or cross, fertility and soundness;
(b) in relation to any semen, to include the identity and characteristics of the animal from which it was taken and measure of dilution.
(3) In this section 'quantify' includes length, width, height, area, volume, capacity, weight and number.
3 False trade description
(1) A false trade description is a trade description which is false to a material degree.
(2) A trade description which, though not false, is misleading, that is to say, likely to be taken for such an indication of any of the matters specified in section 2 of this Act as would be false to a material degree, shall be deemed to be a false trade description.
(3) Anything which, though not a trade description, is likely to be taken for an indication of any of those matters and, as such an indication, would be false to a material degree, shall be deemed to be a false trade description.
(4) A false indication, or anything likely to be taken as an indication which would be false, that any goods comply with a standard specified or recognised by any person or implied by the approval of any person shall be deemed to be a false trade description, if there is no such person or no standard so specified, recognised or implied.
4 Applying a trade description to goods
(1) A person applies a trade description to goods if he—
(a) affixes or annexes it to or in any manner marks it on or incorporates it with—
(i) the goods themselves, or
(ii) anything in, on or with which the
goods are supplied; or
(b) places the goods in, or on or with anything which the trade description has been affixed or annexed to, marked on or incorporated with, or places any such thing with the goods; or
(c) uses the trade description in any manner likely to be taken as referring to the goods.
(2) An oral statement may amount to the use of a trade description.
(3) Where goods are supplied in pursuance of a request in which a trade description is used and circumstances are such as to make it reasonable to infer that the goods are supplied as goods corresponding to that trade description, the person supplying the goods shall be deemed to have applied that trade description to the goods."
Two points are raised on the appeal. First, was the return of the car after service a supply for the purposes of both section 1(1)(a) and paragraph (b) of the 1968 Act? Second, if the answer to question 1 is "yes" was there in this case a trade description within the meaning of section 2(1) of the Act? If the answer to that question is also "yes", the appeal must fail because it is conceded that, providing section 2(1) is satisfied, the trade description applied here was false to a material degree as required by section 3(1).
The fundamental point made on behalf of the appellants is that the respondent should have proceeded against them, if at all, under section 14, which defines offences founded upon false or misleading statements as to services. One answer to that point is that sections 1 and 14 are clearly not mutually exclusive. Mr De Haan, for the appellant, emphasises the distinction to be found in this Act between trade descriptions as applied to goods, and false and misleading statements relating to services. In respect of the latter class of offence, the requisite mens rea must be proved. There is no such ingredient in the goods offences created by section 1. Counsel for the respondent has made no secret of the fact that that is precisely why the appellant was prosecuted under section 1.
On behalf of the appellant, it was argued that the court must look at the essence of the contract—where it is for the provision of services—(and that, it is said, is the essence of the contract in this case), then section 14 is the appropriate section to proceed under requiring, as it does,...
To continue reading
Request your trial