R v Barnsley Metropolitan Borough Council, ex parte Hook
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE SCARMAN,SIR JOHN PENNYCUICK |
| Judgment Date | 20 February 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J0220-5 |
| Date | 20 February 1976 |
| Court | Court of Appeal (Civil Division) |
[1976] EWCA Civ J0220-5
The Master of the Rolls (Lord Denning)
Lord Justice Scarman and
Sir John Pennycuick
In The Supreme Court of Judicature
Court of Appeal
Civil Division
Appeal from Judgment of Divisional Court
Mr J. MULLICK (instructed by Messrs White & Leonard, Agents for Messrs Morrish & Co. - Leeds) appeared on behalf of the Appellant (Applicant).
Mr M. HOWARD (instructed by Mr D.P. Clephan - Barnsley) appeared on behalf of the Respondents.
To some this may appear to be a small matter, but to Mr Harry Hook it is very important. He is a street trader in the Barnsley Market. He has been trading there for some six years without any complaint being made against him: but, nevertheless, he has now been banned from trading in the market for life. All because of a trifling incident. On Wednesday, 16th October, 1974-. the market closed at 5.30. So were all the lavatories, or "toilets" as they are now called. They were locked up. Three-quarters of an hour later, at 6.20, Harry Hook had an urgent call of nature. He wanted to relieve himself. He went into a side street near the market and there made water or "urinated" as it is now said. No-one was about except one or two employees of the council, who were cleaning up. They rebuked him. He said "I can do it here if I like". They reported him to a security officer who came up. The security officer reprimanded Harry Hook. We are not told the words used by the security officer. I expect they were in language which street traders understand. Harry Hook made an appropriate reply. Again we are not told the actual words, but it is not difficult to guess. I expect it was an emphatic version of "You be off". At any rate, the security officer described them as words of action. Touchstone would say the security officer gave the "reproof valiant" and Harry Hook gave the "countercheck quarrelsome". ("As You Like It", Act V, Scene IV).
On the Thursday morning the security officer reported the incident. The Market Manager thought it was a serious matter. So he saw Mr Hook the next day, Friday, 18th October. Mr Hook admitted it and said he was sorry for what had happened. The Market Manager was not satisfied to leave it there. He reported the incident to the Chairman of theAmenities Services Committee of the Council. He says that "the Chairman agreed that staff should he protected from such abuse". That very day the Market Manager wrote a letter to Mr Hook, banning him from trading in the Market. It read:
To "H. Hook. Esq., Semi-Open Market, Barnsley. Dear Sir, Further to your interview on Friday the 18th October, 1974. in confirmation of that interview I have to give you notice that you are no longer considered to be a suitable tenant of this Authority. The stalls and pitch at present reserved for you each Market day will cease to be available for your use after Wednesday next the 23rd instant. Please arrange to clear stock from your cupboards by this date. Yours faithfully, Amenities and Recreation Officer". So there he was on Friday, 18th October, dismissed as from the next Wednesday, banned for life.
He was, however, granted a further hearing. On the next Thursday, 24th, he was allowed to state his case before the Chairman of the Amenities Services Committee, the Vice-Chairman, the Amenities Officer and the Market Manager himself. He went there accompanied by the President of the Barnsley Market Traders union. The matter was discussed. The Council people saw no reason to alter the decision, but told Mr Hook that he could be heard further by the Indoor Services Sub-Committee. This met on the following Wednesday, the 30th October. Mr Hook went then with a young articled clerk from his solicitors and the trade union representative. The Committee met at 10 a.m. but Mr Hook and his representatives had to wait for an hour before they were allowed in. Then the articled clerk and the union representative went in. But Mr Hook himself did not go in. He stayed outside in the corridor. The articled clerk and the union representative wereallowed to address the Committee, but they were not given particulars of the charge or of the evidence against Mr Hook. At that meeting the Market Manager was present and was in a position to tell the Committee his view of the evidence. After Mr Hook's representatives had been heard, that Sub-Committee discussed the case (with the Market Manager still present) and decided to adhere to the original decision.
Thereupon Mr Hook applied to the Divisional Court for leave to apply for a writ of certiorari. The Divisional Court gave leave to make the application, but after hearing both sides, they dismissed his application. Now there is an appeal to us.
There is much more material before us than was before the Divisional Court. In particular about the market at Barnsley. The right of having a market at Barnsley was granted as long ago as the year 1249 by a charter by King Henry III to the Prior and Convent of Pontefract. After the dissolution of the monasteries, it became vested in lay hands and eventually in the Dukes of Leeds. In 1861 the market rights were conveyed to the Barnsley Local Board, and thence to the Barnsley Corporation. In 1969 a Private Act was passed called the Barnsley Corporation Act, 1969, which confirmed the title of the Barnsley Corporation and gave them the power to regulate the conduct of the market and to make byelaws.
This right of holding a market is subject to the common law of England. It says that every member of the public is entitled to come into the marketplace, to bring things there for sale: and others are entitled to come in to buy them. Sellers and buyers can come without let or hindrance, moving about and walking to and fro. But a seller has not any right to pitch a stall there unless it has been allocated to him by the owner of the market. When it is so allocated, the ownercan charge a fee for it called stallage, which the seller has to pay. It was so stated in 1745 in Northampton Corporation v. Ward (1745) 2 Strange 1238 and Yarmouth v. Groom (1862) 1 H. & C. 102. It was re-stated in modern times in the case of the Spitalfields Market, 1936 Ch. 78, and the Colchester Market in 1952 Ch. 586, and Halsbury's Third Edition, Volume 25, pages 391 to 398.
In the Barnsley Corporation Act, 1969, there is a section which says that if a stallholder is in arrear with his stallage for his stall and fails to pay within three days of the demand, the Corporation can take possession and re-let the space. In addition, the Barnsley Corporation have made byelaws which confer to the common law. Byelaw No.4 prohibits any person from erecting a stall unless a space has "been allocated by the Superintendent. Byelaw No.5 prohibits any person from erecting a stall without the previous written consent of the Superintendent. There are also byelaws for preventing damage and throwing litter about, and the like. For a breach of the byelaws an offender can be taken before the Magistrates and fined up to £20.
Such being the legal position, I do not think that the right of a stallholder arises merely under a contract or licence determinable at will. It is a right conferred on him by the common law under which, so long as he pays the stallage, he is entitled to have his stall there: and that right cannot be determined without gust cause. I agree that he has to have, the permission of the market-holder to start with. But once he has it and has set up his stall there, then so long as he pays the stallage, he has a right to keep it there. It is not to be taken away except for just cause and then only in accordance with the provisions of natural justice. I do not mind whetherthe market-holder is exercising a judicial or an administrative function. A stall-holder counts on this right in order to enable him to earn his living. It is not to be taken away except for just cause and in accord with natural justice.
So it was quite right for the Committee to hold the hearings. I will assume that Mr Hook was given sufficient notice of the charge to be able to deal with it. But, nevertheless, each of the hearings was, to my mind, vitiated by the fact that the Market Manager was there all the time. He was the one who gave evidence - the only one who did - and hearsay evidence, too. His evidence was given privately to the Committee, not in the presence of Mr Hook or his representatives. Mr Hook was not himself in the room. His representatives were there, and they were heard. But when the Committee discussed the case and came to their decision, the Market Manager was there all the time. His presence at all their deliberations is enough to vitiate the proceedings. It is contrary to natural justice that one who is in the position of a prosecutor should be present at the deliberations of the adjudicating committee. That is shown by The Queenly. London County Council, in 1892 1 Queen's Bench, page 190, and Cooper v. Wilson, in 1937 2 King's Bench, 309.
But there is one further matter: and that is that the punishment was too severe. It appears that there had been other cases where men had urinated in a side street near the market and no such punishment had been inflicted.
Now, there are old cases which show that the Court can interfere by certiorari if a punishment is altogether excessive and out of proportion to the occasion. In one case the Commissioners of Severn imposed an excessive fine: and it was quashed by the Court of King's Bench on the ground that in lawtheir fines ought to he reasonable. See Rex v. Northumberland, 1952 1 K.B. at page 350. So in this case if Mr Hook did misbehave. I should have thought the right thing would have been to take him before the Magistrates under the byelaws, when some small fine might have been inflicted. It is quite wrong that...
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