R v Birmingham City Council, ex parte Ferrero Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 23 May 1991 |
| Date | 23 May 1991 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Justice Fox, Lord Justice Russell and Lord Justice Taylor
Consumer protection - challenge of suspension notice - appeal procedure - judicial review
A challenge to a notice under section 14 of the Consumer Protection Act 1987 prohibiting the supply of goods suspected of endangering the public should be made under the appeal procedure under the Act and not by way of judicial review, even where there were defects in the decision-making process.
The Court of Appeal so held in allowing an appeal by Birmingham City Council from the order of certiorari made by Mr Justice Hutchison on March 7, 1990 granting Ferrero Ltd an order quashing the council's section 14 suspension notice, and its refusal to withdraw it, in respect of one of Ferrero's chocolate products.
Mr Anthony Scrivener, QC and Mr Ian Croxford for the council; Mr Michael Beloff, QC and Mr Richard Spearman for Ferrero; Mr John Laws for the Secretary of State for Trade and Industry.
LORD JUSTICE TAYLOR said that Ferrero made chocolate eggs called Kinder Surprise. Each egg contained a plastic capsule containing in turn a kit from which a small toy could be made. The object was to enhance the attractiveness of the eggs to children. Ferrero had used a variety of different toys in their eggs, many of which represented well known cartoon characters.
In October 1989 a new toy, depicting the Pink Panther, was introduced. Tragically, a month later a little girl just over three years old swallowed one of the pink panther feet. It lodged in her throat causing her death from asphyxiation.
Three days later the council issued a section 14 suspension notice prohibiting Ferrero for six months from supplying Kinder Surprise eggs containing the Pink Panther toy.
Ferrero's application for judicial review had been based on several grounds, on each of which the judge found in favour of Ferrero. He then dealt with the issue at the forefront of the council's appeal: whether the case was appropriate for judicial review at all or whether Ferrero ought to have pursued their statutory right of appeal under section 15 of the Act. Again he found for Ferrero.
There were strong dicta both in the Court of Appeal and in the House of Lords emphasising that where there was an alternative remedy, and especially where Parliament had provided a statutory appeal procedure, it was only...
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