Ritz Video Film Hire Ltd v Tyneside Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judgment Date | 26 January 1995 |
| Judgment citation (vLex) | [1995] EWHC J0126-1 |
| Docket Number | C0/1730/94 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 January 1995 |
[1995] EWHC J0126-1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Crown Office List
Before: Lord Justice Kennedy and Mr. Justice Waterhouse
C0/1730/94
MR. N. DAVIDSON Q.C. (instructed by Messrs Hepherd Winstanley & Pugh, Southampton) appeared on behalf of the Appellant
MR. T. KERR (instructed by the Legal Department, South Tyneside Metropolitan Borough Council) appeared on behalf of the Respondent
LORDJUSTICE KENNEDY:
1. This is an appeal by way of case stated from a decision of Justices for the County of Tyne and Wear, sitting at Hebburn for the Petty Sessional Division of Tyneside, who on 12th and 13th April 1994 heard informations relating to premises at 12 The Denmark Centre, South Shields, which were occupied first by one of the appellants and then by the other. Nothing turned on the identity of the occupier. The informations, conveniently tabulated in the schedules to the case stated, alleged contraventions of the late closing provisions and of the Sunday trading provisions of the Shops Act 1950.
2. The premises in question are a unit in a modern development, and a copy of a photograph of the exterior of the premises which was shown to the Justices is annexed to the case stated. The shop sign says in bold letters "Ritz Video Film Hire", and at all material times, as the Justices found, it was operated as a hire outlet for pre-recorded video cassette tapes. As the Justices say in the case stated "such premises are often referred to as Video Hire Shops". The public had access to the premises as if the premises were a shop where video recordings were sold retail, but the prosecuting authority did not allege that any material selling took place at the premises.
3. The submission made to the Justices on behalf of the appellants was that the premises were not a shop within the meaning of the Shops Act 1950. Reliance was placed upon a decision of the High Court of Justiciary in Boyd v Bell (1970) S.C.(J) 1 in which it was held that dry cleaning premises were not a shop, but it was conceded that in Lewis v Rogers (1984) 82 L.G.R. 670 this Court, without being referred to Boyd v Bell held that video hire premises were a shop. It was further conceded, and has been conceded by Mr Davidson before us, that Lewis v Rogers cannot be distinguished. The Justices were of the opinion that the two authorities to which their attention had been invited were not reconcilable, and that as a matter of law they were obliged to follow Lewis v Rogers. They therefore rejected the submission made on behalf of the appellants, and, as there was no dispute as to the facts, the appellants were convicted.
4. The questions which the Justices posed for our consideration are these:
"(1) on the facts found, were we right to conclude that premises were a shop within the meaning of the Shops Act 1950?
(2) where a Magistrates' Court has to interpret a statutory provision which applies to England and Wales and to one or more other parts of the United Kingdom, and are of the opinion that a decision of the Divisional Court of the High Court of Justice as to the interpretation is irreconcilably inconsistent with an earlier decision of a Scottish Court of equivalent jurisdiction on the same point which had not been cited to the Divisional Court, are they bound to follow the decision of the Divisional Court?"
The important question is obviously the first, and my approach to that question is to look first at the statutory provisions with which we are concerned, and their legislative history. I will then look a little more closely at the two authorities already referred to, and consider which, if either of them, this Court is bound to follow. Finally, if we are not bound by either decision, I must consider what our approach should be.
5. Statutory Provisions
The definitions section of the Shops Act 1950 is section 74. It states, amongst other things, that:
"Shop" includes any premises where any retail trade or business is carried on.
"Retail trade or business" is also defined. It -
"… includes the business of a barber or hairdresser, the sale of refreshments or intoxicating liquors, the business of lending books or periodicals when carried on for the purposes of gain, and retail sales by auction, but does not include the sale of programmes and catalogues and other similar sales at theatres and places of amusement".
The use of the words "includes" in both definitions is interesting. It shows that neither definition is intended to be exhaustive. Each exists either to extend or to clarify the ambit of the word or words defined. That contrasts with the definition of "wholesale shop" which -
"..means premises occupied by a wholesale dealer or merchant where goods are kept for sale wholesale to customers resorting to the premises."
As Mr Davidson emphasizes that definition can only apply where goods are kept for sale.
The Act, the relevant provisions of which are now all repealed, applied to England, Wales and Scotland, but not to Northern Ireland. The Sunday Trading Provisions in Part IV of the 1950 Act did not apply to Scotland, but for present purposes that is not significant.
6. Legislative History
The 1950 Act was not the first attempt by Parliament to protect shop workers and to regulate shop hours. The Shop Hours Act 1892 was "an Act to amend the law relating to the employment of young persons in shops." Section 9 of that Act provided that unless the context otherwise requires -
"Shop" means retail and wholesale shops, markets, stalls and warehouses in which assistants are employed for hire, and includes licensed public-houses and refreshment houses of any kind."
In that definition the primary meaning is introduced by the word "means" and would appear to embrace for example all stalls at which assistants were employed for hire, whether or not they were stalls at which goods were sold. The extended meaning is then introduced by the word "includes".
In 1899 there was "an Act to provide for seats being supplied for the use of shop assistants." By section 1 thereof they were to be provided -
"In all rooms of a shop, or other premises where goods are actually retailed to the public, and where female assistants are employed for the retail of goods to the public."
Mr Davidson submits that throughout this early legislation there is at least by implication the concept of a shop being a place where goods or refreshments are sold to the public, as opposed to, for example, let on hire.
The Shops Act 1911 amended and extended the previous legislation, provided for weekly 1/2 holidays, and in the definition section stated:
"The expression "shop" includes any premises where any retail trade or business is carried on;
the expression "retail trade or business" includes the business of a barber or hairdresser, the sale of refreshments or intoxicating liquors, and retail sales by auction, but does not include the sale of programmes, catalogues and other similar sales at theatres and places of amusement."
So a shop includes, but is not necessarily confined to any premises where any retail trade or business is carried on, and the expression retail trade or business expressly includes the business of a barber or hairdresser. That, Mr Davidson argues, was a necessary extension of the definition because it may be that in premises occupied by a barber or hairdresser no goods are sold only a service is being offered.
In 1912 the 1911 Act and the previous legislation was consolidated in the Shops Act 1912 which in section 19(1) repeated that part of the 1911 Act which I have just quoted. The Shops Act 1936 was, to give its full title "an Act to provide for the application of the Shops Acts 1912 to 1934, to premises and places where the business of lending books or periodicals is carried on for purposes of gain."
So the definition of "retail trade or business" in section 19 of the 1912 Act was amended, and from 1936 onwards it was in the form that was repeated in the 1950 Act.
One obvious comment may be made at the end of that brief review of the legislative history which is that the overall purpose of the 1950 Act and its predecessors was clearly to ensure that at least in some respects those who worked in shops had acceptable terms and conditions of service. Such a purpose does not call for a restrictive definition of what amounts to a shop. On the other hand, as this case illustrates, non-compliance with the legislation was liable to result in a prosecution, so it was always important for those engaged in High Street trade to know when they had to comply with the legislation.
7. The Authorities
In Boyd v Bell, the respondents failed to display a notice specifying the day selected by them as early closing day. They were under an obligation to display such a notice if their premises were a shop within the meaning of the Shops Act 1950. The premises were only used for receiving from customers articles for dry cleaning, cleaning some of them and returning the articles to the customers. The judge of police, not being satisfied that the premises were a shop, acquitted the respondents and stated a case for consideration of the High Court. As Mr Kerr has pointed out to us, it was in Boyds case conceded that the premises were not within the recognised dictionary definition meaning of shop because no goods were sold. It was argued that the premises were within the meaning as extended by the 1950 Act because services were sold. The High Court of Justiciary, having looked at a number...
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