Notes of Cases
| Date | 01 May 1964 |
| DOI | http://doi.org/10.1111/j.1468-2230.1964.tb01032.x |
| Published date | 01 May 1964 |
NOTES
OF
CASES
STATUTORY
INTERPRETATION,
RESTRICTIVE
PRACTICES
AND
THE
"
NEW
"
HOUSE
OF
LORDS
THE House of Lords has, during the last twelve months, been in
one of its more creative moods. The implications of its decisions
in
Hedley
Byrne
4
Co.,
Ltd.
v.
Heller
4
Co.'
and
Rookes
v.
Barnard,2
while they are likely to evoke conflicting emoiions
among students of the law, clearly pose the questions
of
how
far and in which directions the judges should
be
encouraged to
develop the law. In discussing these questions, a third case
is in danger of being overlooked. In
Associated Newspapers
v.
Registrar
of
Restrictive Trading Agreernent~,~
the House of Lords
not only handed down an important decision on the question
of restrictive practices, but
it
also made an interesting contribution
to the theory of statutory interpretation. This, the first decision to
reach the House from the Restrictive Practices Court, raised the
question of whether agreements registered under the
1956
Restric-
tive Trade Practices Act had to be referred
to
the court even
though they had been either abandoned
or
varied
so
as to remove
all registrable provisions. Stated baldly like this, the issue would
appear to be both insignificant from
a
practical, and clear-cut from
a legal, point of view. on the decision in the Court of Ap~eal,~
abandonment and variation are not necessarily
a
sign of a sudden
desire to compete on the part of the former members of the
restrictive agreement.6 All too often they represent no more than
the fact that the participants have replaced their formal agreements
by informal agreements, skilfully drawn by counsel, which, in the
words of a Select Committee of the House of Commons,
"
have
observed the letter
of
the Act
"
but
"
flouted its spirit." Such
Neither, in fact, was the case.
As
explained in a note
1
[1963] 2
All E.R.
575
(H.L.).
2
[1964]
1
All E.R.
367
(H.L.).
3
[1964]
1
W.L.R.
31; 119643
1
All E.R.
55
(H.L.,
1963),
Lords Reid,
4
Stevens, Investigation
of
Abandoned Restri:tive Agreements
:
Legislative
5
L.R.
3
R.P.
360
(C.A.,
1962); [1963]
1
All
E.R.
306.
6
The latest statistics show that of the
2,430
agreements that have been
registered
525
had been varied and
1,OOO
abandoned (including those where
the court has held them contrary to the public interest or the parties had
submitted to judgment). Registrar of Restrictive Trading Agreements, Report
for the period from July
1,
1961
to June
30, 1963;
Cmnd.
2246 (1964),
paras.
Evershed,,Hodson, Devlin and Pearce.
Oversight and
a
Conflict in Judicial Attitudes
(1963) 26
M.L.R.
418.
26
.?!a
-".
_I.
7
(Discussion of supply of transformers to Central Electricity Generating Board.)
Report from the Select Committee
on
Nationalised Industries
:
The Electricity
Supply Industry, May
28.
1963;
Vol.
1.
para.
542.
House
of
Commons
Papers
236-1.
387
338
THE
MODERN
LAW
REVIEW
VOL.
27
may well have been the position of the Newspaper Proprietors
Association. The members of the association had formerly had an
agreement covering retail prices and wholesale discounts.
It
had
officially been abandoned in August
1961.
Yet when the Registrar
referred the agreement to the court in October
1961,
the newspaper
proprietors refused to submit to judgment. A layman might find
such behaviour difficult to justify. The lawyer,
on
the other hand,
might well conclude that one of the two possibilities had occurred.8
Either some arrangement had been entered into after August
1961
which, while it did not come within the strict definition of the
registration section
(8.
6),
might have amounted
to a
contempt
of court
if
the parties had in fact submitted to some sort of order
under the first agreement, and undertaken not to make any agree-
ment
“
to the like effect
”;
or
alternatively, isolated short-term
price fixing agreements were contemplated, which would not stay
alive sufficiently long to
be
both registered and investigated before
they had died by effluxion of time.8
The Registrar, therefore, had a considerable interest
in
gaining
some control over dead agreements. The Court
of
Appeal held,
2-1,
that he had such a power. But legally the argument was far
from clear.
On
the one hand, the Registrar was able to argue that
he was under the dual duties of
‘‘
maintaining a register
”
and of
referring to the court “the agreements of which particulars are
from time to time entered
or
filed in the register
”
(6.
1
(2)).
Since
abandoned and varied agreements had to remain
on
the register,
and since the jurisdiction of the court was also phrased in terms
of agreements the time being registered
)’
(s.
20
(i))
the
argument at first sight seemed conclusive. But the association
argued that such an interpretation was inconsistent with
“
the
natural meaning
”
of agreement
(Le.,
‘<
subsisting agreement
”);
that since the jurisdiction section
(5.
20
(5))
expressly gave the
court power over agreements determined
‘<
after the commencement
of the proceedings,” the canon
expressio uniua exclusio alterius
applied to show that
no
agreement abandoned
or
varied before the
issue of the writ could be referred to the court; and finally that
the tenor of various other parts of the Act-particularly section
21,
the basis of the Restrictive Practices Court’s operations-showed
that dead agreements were to be ignored.
In
the Court of Appeal
such arguments had appealed to Diplock
L.J.
who admitted that
the decision rather depended
‘(
on
which section one starts from.”
lo
8
The Appendix to the
‘‘
Case
”
before the House
of
Lords reveals that
in
fact
another agreement had been made in,.J“ly 1962. Case
:
Appendix
:
Document
6.
9
Such activities might be held to be an arrangement
”
in view of the decision
in British Basic Slag, Ltd.
v.
Registrar
of
Restrictiae Trading Agreements,
L.R.
4
R.P.
116 (C.A., 1963). See (1963)
26 M.L.R.
547. But see the
Registrar’s reservation
:
“
there would be time-coneuming difficulties and
disputes in the establishment
of
the terms and extent
of
the arrangement
which might well rest on,,practice and custom, whereas the short-term
obligations would be precise
:
op.
cit. note
6
above, at para. 49.
10
[1963]
1
All
E.R.
306
at p. 312.
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