Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE DILLON,LORD JUSTICE MANN,LORD JUSTICE BELDAM
Judgment Date30 April 1991
Judgment citation (vLex)[1991] EWCA Civ J0430-7
Docket Number91/0436
Date30 April 1991

[1991] EWCA Civ J0430-7

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

(MR JUSTICE MERVYN DAVIES)

(MR JUSTICE MUMMERY)

Royal Courts of Justice

Before:

Lord Justice Dillon

Lord Justice Mann

Lord Justice Beldam

91/0436

The Council of the Borough of Kirklees
Respondent
and
Wickes Building Supplies Limited and
Appellant
The Mendip District Council
Respondent
and
B & Q Plc
Appellant

MR A.D. COLLINS QC and MR K.P.E.LASOK, instructed by Messrs Metcalfe Copemmman & Pettefar (Peterborough), appeared for Wickes Building Supplies Limited, the Appellant (Defendant) in the first case.

MR S.ISAACS QC and MR T.D.STRAKER, instructed by Messrs Sharpe Pritchard (London Agents for M.R.G. Vause Esq, Huddersfield), appeared for The Council of the Borough of Kirklees, the Respondent (Plaintiff) in the first case.

MR J.SAMUELS QC, MR G.BARLING QC and MR N.R.DAVIDSON, instructed by Messrs Hepherd Winstanley & Pugh (Southampton), appeared for B & Q PLC, the Appellant (Defendant) in the second case.

MR S.ISAACS QC and MR N.R.CALVER, instructed by Messrs Sharpe Pritchard (London Agents for A.I'Anson Esq, Shepton Mallet), appeared for The Mendip District Council, the Respondent (Plaintiff) in the second case.

LORD JUSTICE DILLON
1

The court has before it two interlocutory appeals which raise the same issue.

2

One is an appeal by the defendant in the first above-mentioned action, Wickes Building Supplies Ltd ("Wickes"), against an order of Mervyn Davies J. of 14th May 1990 whereby he granted the plaintiffs in that action, the Council of the Borough of Kirkless, an injunction restraining Wickes until judgment or further order from using or causing or permitting to be used any premises within the Kirklees area as a retail Do-it-yourself Centre or for the purpose of any other retail trade or business on Sundays except for the purpose of carrying out transactions exempted from the operation of the Shops Act 1950 section 47 by the Fifth Schedule to that Act. That injunction applies in particular to premises of Wickes at Huddersfield and Dewsbury.

3

The other appeal is an appeal by the defendant in the second above-mentioned action, B & Q plc ("B & Q"), against an order of Mummery J. of 1st August 1990 whereby he granted the plaintiffs in that action, the Mendip District Council, an injunction restraining B & Q until judgment or further order from opening or causing or permitting to be opened on Sundays B & Q's premises at Wirrall Park, Glastonbury for the serving of customers in breach of section 47 of the Shops Act 1950.

4

The special factor in these two appeals which distinguishes them from the numerous other Sunday trading cases which have previously come before this Court is that Mervyn Davies J. decided that it was appropriate to grant the injunction without requiring the usual cross-undertaking in damages from the plaintiff council. Mummery J. in the Mendip case followed the decision of Mervyn Davies J. We were told by counsel that since the decision of Mervyn Davies J. the judges of the Chancery Division have granted as many as a hundred interlocutory injunctions to local authorities to restrain Sunday trading without requiring those authorities to give cross-undertakings in damages.

5

The criminal and civil courts in this country have had to deal for quite a few years past with the enforcement of section 47 at the suit of local authorities in England or Wales against retailers, and in particular retailers owning chains of D.I.Y. shops, which object to keeping their shops closed on Sundays. The Scottish courts have not been troubled by the problem since there is no comparable legislation in force in Scotland.

6

Latterly the retailers have asserted, as a defence to claims to enforce section 47 whether in the criminal or civil courts, that section 47 is contrary to Article 30 of the Treaty of Rome and is thus void and unenforceable. Article 30 provides, in now familiar wording, that:

"Quantitative restrictions on imports and all measures having equivalent effect shall…be prohibited between Member States."

7

It is common ground that Article 30 creates rights in those injured by its infringement which are directly enforceable in the national courts of the member states of the Community.

8

There has already been one decision of the European Court in relation to section 47. That was in Torfaen Borough Council v. B. & Q. PLC [1990] 2 Q.B. 19 on a reference by the Cwmbran Magistrates Court in the course of criminal proceedings against B & Q in that court. The decision of the European Court in the Torfaen case has also been considered by the European Court in two further cases, both heard and decided together, the Conforama case and the Marchandise case in which the European Court upheld the validity of the Sunday trading restrictions of France and Belgium.

9

The actual ruling of the European Court in the Torfaen case was that:

" Article 30 of the E.E.C. treaty must be interpreted as meaning that the prohibition which it lays down does not apply to national rules prohibiting retailers from opening their premises on Sunday where the restrictive effects on Community trade which may result therefrom do not exceed the effects intrinsic to rules of that kind."

10

In paragraph 16 of the judgment it is stated that the question whether the effects of specific national rules do in fact remain within the limits permissible in relation to Article 30 is a question of fact to be determined by the national court.

11

That ruling in the Torfaen case has been interpreted by the European Court in paragraph 10 of its judgment in the Conforama case and in the corresponding paragraph of its judgment in the Marchandise case as follows:

"In the Torfaen judgment the Court ruled, in relation to similar national legislation prohibiting the opening of retail shops on Sundays, that such a prohibition was not compatible with the principle of the free movement of goods provided for in the Treaty unless any obstacle to Community trade thereby created did not exceed what was necessary in order to ensure the attainment of the objective in view and unless that objective was justified with regard to Community law."

12

By way of apparent contrast to the ruling in the Torfaen case, however, the actual ruling of the European Court in the Conforama case and in the Marchandise case was that:

"The prohibition contained in Article 30 of the Treaty, properly construed, does not apply to national legislation prohibiting the employment of staff on Sundays."

13

Mr Isaacs QC, has, consequently, submitted that by its decisions in the Conforama and in the Marchandise cases the European Court has tacitly rejected the view expressed in paragraph 16 of the judgment in the Torfaen case. It follows therefore, he says, that the application of Article 30 is a matter of Community law for the European Court and that the decisions in the Conforama and Marchandise cases upholding the French and Belgian Sunday trading laws necessarily involve that Article 30 does not apply to section 47. He submits therefore that this court should deal with these appeals on the footing that Wickes and B & Q have no European law defence to the claims against them.

14

I do not regard it as at all clear that the European Court has resiled, as Mr Isaccs suggests, from the view expressed in paragraph 16 in its judgment in the Torfaen case. There is nothing on the face of the judgments in the Conforama and Marchandise cases to explain why the actual decisions in those cases are worded differently from the wording of the decision in the Torfaen case. If therefore it was necessary to reach a conclusion on these submissions of Mr Isaacs in order to dispose of the present appeals, I should feel bound to direct a fresh reference to the European Court.

15

Mr Isaacs takes the further point that the issues of European law as to the application of the Torfaen case on which Wickes and B & Q seek to rely have been decided in favour of local authorities by Hoffmann J. in a final, as opposed to interlocutory, judgment in Stoke-on-Trent City Council v. B.& Q. PLC [1991] 2 W.L.R. 42. He points out that that judgment was referred to by the Vice-chancellor in Stoke-on-Trent City Council v. Toys 'R' Us Ltd (unreported) as a definitive judgment so far as courts at first instance are concerned. That judgment of Hoffmann J. is however the subject of a leap-frog appeal to the House of Lords which is due to be heard next month, and it is not for this Court to attempt to predict the decision of the House of Lords.

16

We must therefore approach these interlocutory appeals on the footing that it is possible that the House of Lords may take a different view of the law to that of Hoffmann J. and/or that the European Court may give a further ruling which is contrary, in its application to section 47, to the submissions of Mr Isaacs as to the effect of the decisions in the Conforama and Marchandise cases. In saying this, I am comforted by the well-known observations of Sir Robert Megarry as to the open-and-shut case which turned out not to be so, etc.

17

It was submitted for Wickes and B & Q that so long as EEC law has not been finally determined against them they have an arguable defence to any prosecution for Sunday trading which might be brought against them under the Shops Act 1950, and that therefore it is wrong and inappropriate for the plaintiff councils to invoke the civil law and relief by way of injunction in civil proceedings against them. On the view I take on the issues as to the cross-undertaking in damages it is unnecessary to consider that submission.

18

The issues as to the cross-undertaking are fundamental...

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