R (Beer) v Hampshire Farmers' Markets Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson |
| Judgment Date | 21 July 2003 |
| Neutral Citation | [2003] EWCA Civ 1056 |
| Docket Number | Case No: C1/2002/2722 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 July 2003 |
[2003] EWCA Civ 1056
Lord Justice Dyson
Lord Justice Longmore
and
Sir Martin Nourse
Case No: C1/2002/2722
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(Mr Justice Field)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Ms Gillian Carrington (instructed by Hampshire County Council) for the Appellant Mr James Maurici (instructed by Messrs Thring Townsend Solicitors) for the Respondent
This appeal raises the question of whether the decision of a private company limited by guarantee, Hampshire Farmers Markets Limited ("HFML"), is susceptible to judicial review, and whether this company is a "public authority" within the meaning of section 6 of the Human Rights Act 1998 ("the 1998 Act"). The decision was made on the 14 November 2001 to reject an application by Mr Beer to be allowed to participate in the 2002 Farmers' Markets Programme organised by HFML. In addition to seeking to have this decision quashed, Mr Beer claims damages under the 1998 Act. By a decision dated 25 November 2002, Field J held that the decision was susceptible to judicial review and quashed it. He also held that HFML was acting as a public authority within the meaning of section 6 of the 1998 Act when it excluded Mr Beer from its markets. He adjourned Mr Beer's claim for damages. He gave permission to appeal to this court on the grounds that the questions raise issues of general importance to local authorities who transfer functions to companies. Hampshire County Council ("HCC") have been joined in these proceedings as an interested party. The appeal has been brought by HCC. HFML decided not to appeal since it is a company of limited resources, and was unwilling to expose itself to the uncertainties of litigation.
Mr Beer is a producer of trout at Liphook in Hampshire and trades under the name "Hammer Trout Farm". In 1999, HCC began to organise farmers' markets using the name Hampshire Farmers' Markets. This was at a time when the farming economy was suffering a severe downturn. HCC ran three pilot markets in Winchester. These were established pursuant to section 33 of the Local Government Housing Act 1989 (subsequently repealed). Section 33(1) empowered a local authority to take such steps "as they may from time to time consider appropriate for promoting the economic development of their area". Section 33(2) provided that the steps taken could include "participation in and the encouragement of, and provision of financial and other assistance for (a) the setting up or expansion of any commercial, industrial or public undertaking —(i) which is to be or is situated in the authority's area; or (ii) the setting up or expansion of which appears likely to increase the opportunities for employment of persons living in that area". Corresponding provisions are now to be found in section 2 of the Local Government Act 2002.
Following the success of these pilot schemes, in 2000 HCC organised a programme of thirty two farmers' markets. These were run for part of the year only and were held at weekends and on bank holidays. In September 2000, HCC announced a programme of sixty farmers' markets for 2001, again to be held at weekends and on bank holidays. Those who wished to participate in the programme were invited to apply to the Farmers' Market manager, Ms Tessa Driscoll, who was an employee of HCC. Participants had to satisfy three criteria: (a) all produce to be sold had to be grown, raised, baked or caught in Hampshire or within ten miles of the border; (b) the stall-holders had to grow and produce the produce themselves; and (c) no brought-in produce was allowed to be sold.
Mr Beer was accepted by HCC into the Farmers' Market Programme from the outset. About sixty stall-holders (including Mr Beer) wanted to have farmers' markets not only at weekends and on bank holidays as organised by HCC, but also on weekdays. In September 2000, these stall-holders set up the Southern Farmers' Market Association ("SFMA") to organise weekday markets to run alongside the HCC markets. Mr Beer was elected chairman of SFMA.
Having established Hampshire Farmers' Markets, HCC decided to hand over the running of the markets to the stall-holders themselves. The farmers and producers were told that HCC would cease to run the markets in December 2001, but that HCC would help them to set up a limited company to take over the markets. HFML was incorporated on the 29 December 2000. Its registered office was at HCC's offices at the Castle in Winchester. The company was set up with the assistance of HCC which included the provision of advice and help with the documentation by its legal department. In October 2001, the company's registered address was changed to that of its accountants. The company started operating in January 2002. The company secretary at the time of incorporation was Mrs Frances Stokes, an HCC employee, who became the company's Business Development Manager and one of its seven directors. The remaining directors were stall-holders. Ms Tessa Driscoll was seconded from HCC to the new company until April 2002. Since then she has been employed directly by HFML. HCC provided further support to the company by allowing it to use a desk and computer in one of the rooms in HCC's main building in Winchester.
In 2001, HCC issued application forms to be completed by stall-holders who wanted to participate in the 2002 programme of farmers' markets. The criteria and market regulations were in identical terms to those that had previously been issued by HCC. Mr Beer applied for a licence to participate in the markets. By its letter dated 14 November 2001, the company refused his application. The judge held that this decision was taken in breach of the rules of natural justice. Since there is no appeal from that part of his decision, I do not propose to explore the reasons for the rejection of Mr Beer's application.
Amenability of HFML to Judicial Review
The judge reviewed a number of the leading authorities at paras 14 to 26 of his judgment. The reasons he gave for concluding that the decision by HFML to exclude Mr Beer from its markets was amenable to judicial review were as follows:
"27. In my judgment, the decision to exclude Mr Beer from the 2002 Farmers Markets programme by HFML involved a public element which renders the decision amenable to judicial review. The facts before me are quite different from those in Servite Houses and Leonard Cheshire Foundation. It is true that HFML is a private body, and that there is no statutory underpinning to its role and functions; nor are its functions woven into a system of governmental control. However, it is a not-for-profit organisation engaged in promoting the public interest by facilitating access to trading outlets much needed by Hampshire's farmers and producers. In substance it acquired from HCC the assets and goodwill of the Hampshire Farmers Markets business, and it did so free of charge. It did not and does not own the sites on which the markets are conducted. These are public sites owned by local councils whose permission for the use of the sites for the markets had been granted free of charge to HCC, a situation which in November 2001 was highly likely to continue as, in fact, it has done in 2002. The goodwill acquired by HFML included both the reputation established by Hampshire Farmer Markets with the public who attended the various markets, and a ready-made body of stall-holders. The company plainly had in November 2001 and has today, a privileged position over potential rival organisers of weekend and bank holiday Farmers Markets held at the sites operated by HCC. It follows that to this extent Hampshire farmers and producers were and are dependent on HFML for access to the markets it organises. Thus, the exclusion of a producer from those markets was bound potentially to be damaging, particularly if, like Mr Beer, he had been a stall-holder when HCC ran the markets and had thereby come to depend on those markets for a significant part of his livelihood.
28. In my opinion HFML were and are engaged in running what in substance are public markets to which the public, both buyers and sellers (especially sellers who have been stall-holders from the outset) have a common law right of access. This right to access is not unqualified. It is subject to a power in HFML to regulate and organise, but the exercise of that power is a public function, and it is reviewable by the courts.
29. I asked Ms Carrington whether she accepted that decisions by HCC when it ran the markets to grant or terminate licences had been amenable to judicial review. With respect to her, she had difficulty in avoiding an affirmative answer to this question. In my view, on the basis of the market cases to which I have referred, such decisions by HCC were plainly reviewable, and not only because HCC was a public authority exercising a statutory power. Does the fact that the organisation of the markets has been transferred to HFML in the manner I have described change the situation? In my opinion not. The company has stepped straight into the shoes of HCC. The rights of the public to attend the markets, including in particular the right of an applicant stall-holder who has been a stall-holder from the outset, and who satisfies the prescribed criteria and is willing to pay the prescribed fees, were not extinguished when the undertaking was transferred to HFML. Accordingly, I hold that the decision of the HFML Board of 14 th November 2001 to exclude Mr Beer from its markets is amenable to judicial review."
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