R v Warwickshire County Council ex parte Johnson

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Griffiths,Lord Emslie,Lord Roskill,Lord Ackner,Lord Lowry
Judgment Date10 Dec 1992

[1992] EWHC J1210-1

House of Lords

Lord Griffiths

Lord Emslie

Lord Roskill

Lord Ackner

Lord Lowry

Regina
and
Warwickshire County Council
(Respondents)
Ex Parte Johnson
(Appellant)
Lord Griffiths

My Lords,

1

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Roskill. I agree with him and for the reasons which he gives I would allow the appeal and make the order which he proposes.

Lord Emslie

My Lords,

2

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Roskill. I agree with him and for the reasons which he gives I would allow the appeal and make the order which he proposes.

Lord Roskill

My Lords,

3

On 24 November 1989 the Warwickshire County Council ("the Respondents") as the prosecuting authority laid an information against the appellant in respect of an offence allegedly committed against section 20(1) of the Consumer Protection Act 1987 on 29 May 1989. The appellant was on that date the manager of the Stratford-upon-Avon branch of Dixon's Store Group Ltd ("Dixon's"). The wording of the information is of some importance and I set it out in full, italicising the most crucial words:—

"Neil Kirk Johnson gave, in the course of a business of his, to Graham Rodney Thomas an indication by means of a notice stating 'We will beat any TV, Hi-Fi and Video price by ?20 on the spot' which was misleading as to the price at which a JVC remote control television was offered in that the price was not ?20 less than the price at which it was offered by another person in Stratford-upon-Avon contrary to section 20(1) of the Consumer Protection Act 1987."

4

The essential facts are not in dispute. The appellant with the authority of Dixon's had placed outside the shop a notice in the terms set out in the information. On 29 May while the notice was still displayed Mr Thomas saw a TV set of the particular kind in question offered for sale elsewhere in Stratford-upon-Avon at a price of ?159.95. Mr Thomas then went to Dixon's and was told that Dixon's had an identical set in stock. Mr Thomas thereupon took the appellant to see the set on sale elsewhere for ?159.95. But when Mr Thomas sought to purchase the set at Dixon's for ?139.95 the appellant refused to sell it, apparently asserting that he was within his rights in refusing to sell the set at the reduced price. Mr Thomas reported the matter to the Respondents' Trading Standards Department. Later when he was interviewed by an officer of that department, the appellant frankly agreed that he had been wrong but said he had acted in the heat of the moment when he was under pressure. These proceedings then followed.

5

The information came before the justices at Stratford-upon-Avon on 27 April 1990. They dismissed the information. They reached the conclusion that the notice was not misleading but they also held that the appellant "was … acting in the course of a business of his". The Respondents understandably applied to the justices for a case to be stated. After considerable delay the case was signed on 23 November 1990. The appeal came on for hearing in the Divisional Court on 2 April 1992. That court (Stuart-Smith L.J. and Popplewell J.) allowed the appeal for the reasons given in the judgment of Popplewell J. They held that the notice was misleading because the appellant refused to honour the terms of the notice in that he refused to "beat any TV, Hi-Fi or Video price by ?20 on the spot". They also held, contrary to the appellant's submission on the second issue, that in failing to honour the notice the appellant was acting "in the course of any business of his" interpreting that phrase as meaning "in the course of his business, trade or profession". The Divisional Court dealt with the question of sentence by granting the appellant an absolute discharge upon payment by him of the costs of the appeal to the Divisional Court.

6

The appellant invited the Divisional Court to certify two points of law of general public importance. The Divisional Court certified these two questions:—

  • "(1) Whether for the purposes of section 20(1) of the Consumer Protection Act 1987 a statement, which in itself is not misleading on the face of it, can be rendered misleading by virtue of the fact that, even in the absence of evidence to show a general practice or intention to dishonour the offer contained therein, on one occasion the person making the statement declined to enter into a contract within the terms of the statment.

  • (2) Whether for the purposes of section 20(2)(a) of the Consumer Protection Act 1987 an employed branch manager who fails to comply with a price indication so that the same is to be regarded as misleading does so "in the course of any business of his."

7

In addition to the two issues so certified the appellant in his printed case raised a third issue not raised — it could not be so raised — in the Divisional Court. Before the hearing of this appeal, your Lordships' House had heard the further submissions in Pepper v. Hart but had not at that time given judgment. The appellant invited your Lordships in seeking to resolve the second issue to look at what was said in your Lordships' House on 12 March 1987 (Hansard, Volume 485 col. 1140 et seq) by the Minister concerned, Lord Beaverbrook, at the Report stage of the then Consumer Protection Bill when replying to an amendment moved by the noble and learned Lord, Lord Morton of Shuna. Lord Morton of Shuna was supported on this occasion by the noble and learned Lord, Lord Denning. It was said that if your Lordships when considering the second issue found the language of section 20(1) and 20(2)(a) ambiguous, the ambiguity should be resolved in favour of the appellant by reason of what was then said by the Minister as to the clear intention of these sub-sections.

8

My Lords, your Lordships' House has now given judgment in Pepper v. Hart. It has thus become proper in the strictly limited circumstances defined by my noble and learned friend Lord Browne-Wilkinson in his speech, with which the majority of their Lordships who heard that appeal agreed, to have regard to what was said in Parliament in the course of the passage of the Bill. I should mention for the sake of completeness that your Lordships were assured that when the Bill was passed through the later stages in your Lordships' House and also when it reached another place there was no further reference at any stage to this issue. But before considering this matter further I shall first consider the two questions of construction.

9

As to the first it was strenuously argued that because the notice was not misleading on its face it could not subsequently become misleading by a refusal to honour its terms. It was said that it never ceased to be a genuine offer. Overcharging could not of itself convert that notice itself not misleading into a notice which was misleading. Counsel for the appellant frankly admitted that Mr Thomas was misled. I ask — by what was Mr Thomas misled? There can only be one answer. Mr Thomas was misled by the notice. I find myself in complete agreement with the reasoning of the Divisional Court on this issue. "The notice is a continuing offer and whether it is misleading or not can only be tested by somebody taking up the offer. It was misleading because the Respondent "[now the appellant]" did not in accordance with the terms of the notice "beat any TV, Hi-Fi, Video price by ?20 on the spot". To hold otherwise would be seriously to restrict the efficacy of this part of the Consumer Protection legislation. Seemingly innocent notices could be put up and then when such notices were followed by a refusal to honour them by a person acting in the course of his business no offence would be committed. I would therefore answer the first certified question as "yes".

10

The second certified question is more difficult. At first sight the answer given by the Divisional Court has the appeal of simplicity and common sense. The appellant's business was to manage Dixon's branch at Stratford-upon-Avon. His refusal arose in the course of that business. Hence he is guilty of the offence...

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