Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd

JurisdictionUK Non-devolved
JudgeLord Keith of Kinkel,Lord Ackner,Lord Goff of Chieveley,Lord Jauncey of Tullichettle,Lord Lowry
Judgment Date25 June 1992
Judgment citation (vLex)[1992] UKHL J0625-1
Date25 June 1992
CourtHouse of Lords
Council of the Borough of Kirklees
(Appellants)
and
Wickes Building Supplies Limited
(Respondents)

[1992] UKHL J0625-1

Lord Keith

Lord Ackner

Lord Goff of Chieveley

Lord Jauncey of Tullichettle

Lord Lowry

House of Lords

Lord Keith of Kinkel

My Lords,

1

I have read the speech to be delivered by my noble and learned friend Lord Goff of Chieveley. I agree with it, and for the reasons he gives would allow the appeal.

Lord Ackner

My Lords,

2

I have had the advantage of reading the speech of my noble and learned friend, Lord Goff of Chieveley. I agree with it and for the reasons he gives I too would allow the appeal.

Lord Goff of Chieveley

My Lords,

3

This appeal is about Sunday trading. In England and Wales, Sunday trading is prohibited by section 47 of the Shops Act 1950 which provides, subject to certain specified exceptions, that 'Every shop shall …. be closed for the serving of customers on Sunday.' The aim of the legislation is to ensure that, so far as possible, shopkeepers and shop assistants do not have to work on Sunday: see Stoke-on-Trent City Council v. B & Q Ltd. [1991] Ch. 48, 66, per Hoffmann J. But the prohibition against Sunday trading has become controversial in modern times. On the one hand, the Church and other religious organisations uphold the traditional principle that Sunday should be kept as a day apart, for religious observance and for rest; they receive support from trade unions and others who fear that those who work in shops may, if Sunday trading is permitted, find themselves under pressure to work on Sunday against their will. But there are pressures the other way. Many people consider that, with only a small proportion of the population attending church on Sunday, the whole idea of a prohibition against Sunday trading is now out of date. This approach is supported for commercial reasons by large retailers, notably do-it-yourself stores, who have discovered that, if their stores are open on Sundays, not merely is this a convenience for their customers but a significant increase in their trade is generated. There can be little doubt that there are many people in this country who would welcome such a change, as is evidenced by the customers who flock to stores to shop on Sunday when they are given the opportunity to do so; but it might not be so popular with small retailers who could find it more difficult to open their shops regularly on Sundays to remain competitive with their larger and more powerful rivals. At all events, a recent proposal by the Government to abolish the prohibition against Sunday trading failed; and in consequence section 47 of the Act of 1950 remains in force with the effect that, so far as our domestic law is concerned, the general prohibition against Sunday trading is still the law.

4

Even so, during the past few years we have seen some large stores opening on Sundays, in apparent defiance of the law. Prosecutions by local authorities under the Act of 1950 have little deterrent effect, because the increased sales are such that fines at the level presently authorised under the statute can be absorbed by large retailers as a relatively small increase in their costs, though the same is not true of small shops with their much lower sales. An increase in the level of fines is scheduled to come into effect in the autumn of this year; but in the meantime the temptation remains for large stores to open on Sundays. The ineffectiveness of prosecution, or the threat of prosecution, to deter large stores from Sunday opening has caused local authorities, who are charged with the enforcement of section 47, to search for a more effective remedy, and as a result they have resorted to seeking injunctions to restrain stores from infringing the section. In response, the stores appear first to have sought the protection of one of the specified exceptions to the prohibition in section 47, viz. the sale of motor accessories. The argument was that almost anything could be used in connection with cars or motoring, and so a very wide range of goods fell to be classified as motor accessories for the purposes of the section. This argument has, not surprisingly, been rejected by the courts. But now the stores have taken the more formidable step of invoking Community law. The argument is that section 47 cannot stand because it is inconsistent with article 30 of the Treaty, a provision having direct effect which prohibits between member states quantitative restrictions on imports and all measures having equivalent effect; it is said that the prohibition against Sunday trading in this country has such an effect. The argument has been considered by the European Court of Justice in Torfaen Borough Council v. B. & Q. Plc. ( Case 145/88) [1990] 2 Q.B. 19. I shall have to consider the effect of the judgment of the court in that case, and two later cases Union Departmentale des Syndicats C.G.T. de l'Aisne v. Sidef Conforama ( Case C 312/89) (the Conforama case) and Criminal Proceedings v. A. Marchandise The Times, 6 March 1991 (the Marchandise case) ( Case C 332/89), at a later stage. An important issue in the case now before your Lordships' House is the impact of Community law, as interpreted in those three cases, upon our domestic law.

5

The present case has arisen as follows. On 14 May 1990 the appellants, the Council of the Metropolitan Borough of Kirklees ('the Council'), obtained from Mervyn Davies J. an interlocutory injunction restraining the respondents, Wickes Building Supplies Ltd. ('Wickes'), until trial from using any premises in 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 excepted under the Act of 1950. On the evidence before the learned judge, it was plain that Wickes had been trading on Sundays and intended to continue doing so in the future unless restrained by the court; and it was common ground between the parties that Wickes' Sunday trading was in breach of section 47 unless that section had been rendered ineffective by Article 30 of the Treaty. The judge, having referred to the Torfaen case ( Case 145/88) [1990] 2 Q.B. 19, turned to the question whether it was appropriate to grant the council interlocutory relief. Applying the principles laid down by this House in American Cyanamid Co. v. Ethicon Ltd. [1975] A.C. 396, he first asked himself whether there was a serious question to be tried; he held that there was, the question being whether or not the facts were such that section 47 was incompatible with article 30. Turning to the balance of convenience, he was in no doubt that the balance lay in favour of granting an interlocutory injunction. Finally, applying the principles established in F. Hoffman-La Roche & Co. A.G. v. Secretary of State for Trade and Industry [1975] A.C. 295, he held that, since the council was engaged in law enforcement duties, he had a discretion whether or not to require the council to give an undertaking in damages as a prerequisite of the grant of an interlocutory injunction, and he decided to exercise that discretion against requiring such an undertaking.

6

As a result of Mervyn Davies J.'s decision not to require an undertaking in damages, many other local councils sought and obtained interlocutory injunctions on the same terms restraining Sunday trading by retail stores. By the time that the present case had reached the Court of Appeal, as many as 100 injunctions had been granted by judges of the Chancery Division, following the approach of Mervyn Davies J. By that time, too, the decision of the European Court of Justice in the Torfaen case had been followed by its decisions in the Conforama and Marchandise cases; and it was the contention of the council that the approach of the court in the former case, upon which Wickes relied, had been tacitly abandoned by the court in the latter two cases. The Court of Appeal took the view that it remained unclear whether the court had so resiled. In any event, however, the Court of Appeal decided that the judge had erred in not requiring the council to give an undertaking in damages. Dillon and Mann L.JJ. held that he had erred in English domestic law, because he had misunderstood the Hoffman-La Roche case as extending to local authorities a privilege which belonged to the Crown alone; and furthermore that he had erred in Community law because, since it is the duty of the national court to ensure the legal protection which persons derive from the direct effect of provisions of Community law, it was necessary to require an undertaking in damages to protect any current right which Wickes might have, by virtue of article 30, to open their doors for Sunday trading. Beldam L.J. considered that, since the court was required to protect rights conferred under Community law, the judge had erred in exercising his discretion not to require an undertaking. As a result, the council having declined to give an undertaking, the interlocutory injunction was discharged; and your Lordships were informed that the interlocutory injunctions granted in about 100 other cases were likewise discharged for the same reason. It appears that no council feels able to give an undertaking in damages in cases of this kind, because of the possible serious impact upon their limited financial resources. The result is that, for the time being, large retail stores are trading on Sundays, up and down the country, undeterred by the threat of criminal prosecution and unrestrained by an injunction. It is against the decision of the Court of Appeal, and in particular its decision on the undertaking in damages, that the council now appeals, with the leave of your Lordships' House. At the commencement of the hearing, your Lordships gave leave to the Attorney-General to intervene in the proceedings.

7

There can be no doubt, since the decision of this...

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