Smedleys Ltd v Breed
| Jurisdiction | England & Wales |
| Judge | Lord Hailsham of St. Marylebone,Viscount Dilhorne,Lord Diplock,Lord Cross of Chelsea,Lord Kilbrandon |
| Judgment Date | 21 March 1974 |
| Judgment citation (vLex) | [1974] UKHL J0321-2 |
| Date | 21 March 1974 |
| Court | House of Lords |
[1974] UKHL J0321-2
Lord Hailsham of St. Marylebone
Viscount Dilhorne
Lord Diplock
Lord Cross of Chelsea
Lord Kilbrandon
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Smedleys Limited against Breed (on Appeal from a Divisional Court of the Queen's Bench Division), that the Committee had heard Counsel, as well on Tuesday the 22d, as on Wednesday the 23d, days of January last, upon the Petition and Appeal of Smedleys Limited of Ross House, Grimsby, in the County of Lincoln, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice of the 23d of May 1973, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; and Counsel having been heard on behalf of William Roger Breed, the Respondent to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice of the 23d day of May 1973, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
On 25th February, 1972, Mrs. Voss, a Dorset housewife, entered a supermarket belonging to Tesco Limited and bought a tin of Smedleys' peas. It goes without saying that both Tescos Limited and Smedleys Limited are firms of the highest reputation, and no-one who has read this case or heard it argued could possibly conceive that what has occurred here reflects in any way on the quality of their products, still less upon their commercial reputations.
Unfortunately, and without any fault or negligence on the part of the management of either Company, when Mrs. Voss got home, she discovered that the tin, in addition to something more than 150 peas, contained a green caterpillar, the larva of one of the species of hawkmoth. This innocent insect, thus deprived of its natural destiny, was in fact entirely harmless, since, prior to its entry into the tin, it had been subjected to a cooking process of twenty minutes duration at 250° Fahrenheit, and, had she cared to do so, Mrs. Voss could have consumed the caterpillar without injury to herself, and even, perhaps, with benefit. She was not, however, to know this, and with commendable civic zeal, she felt it her duty to report the matter to the local authority, and in consequence, grinding slow, but exceeding small, the machinery of the law was set in inexorable motion.
Thereafter, the caterpillar achieved a sort of posthumous apotheosis. From local authority to the Dorchester Magistrates, from the Dorchester Magistrates to a Divisional court presided over by the Lord Chief Justice of England, from the Lord Chief Justice to the House of Lords, the immolated insect has at length plodded its methodical way to the highest tribunal in the land. It now falls to me to deliver my opinion upon its case.
The Food and Drugs Act, 1955 (s. 113) provides a means whereby, if prosecuted for an offence under the Act, a defendant can seek to cast the blame upon a third party and exonerate himself, and, in order to save the needless expense of an unnecessary prosecution, the local authority is empowered, when it is reasonably satisfied that a defence of this kind could be established, to short circuit proceedings by prosecuting the third party direct. Thus it was that Smedleys Limited, the present appellants, and not Tesco Limited, found themselves defendants to a summons which alleged that the sale by Tesco Limited was of peas which were not of the substance demanded by Mrs. Voss since they included the caterpillar and that this was due to the act or default of Smedleys Limited.
The relevant sections of the Act are as follows: section 2 (1) provides:
"If a person sells to the prejudice of the purchaser any food … which is not … of the substance … of the food … demanded by the purchaser, he shall, subject to the provisions of the next following section, be guilty of an offence."
Although the contrary had been contended below, it was conceded before your Lordships that the peas, with the caterpillar among them, were not of the substance demanded by Mrs. Voss.
Despite what has been said by my Noble and Learned friend, Viscount Dilhorne, to the contrary, I think this concession to have been right. I believe a housewife who orders peas is entitled to complain if, instead of peas, she gets a mixture of peas and caterpillars, and that she is not bound to treat the caterpillar as a kind of uncovenanted blessing.
Section 3(3) of the Act provides:
"In proceedings under section two of this Act in respect of any food … containing some extraneous matter, it shall be a defence for the defendant to prove that the presence of that matter was an unavoidable consequence of the process of collection or preparation."
The principal contention of the appellants before your Lordships was that, on the true construction of this subsection, and on the facts found by the Magistrates, the presence of the caterpillar amongst the peas was an unavoidable consequence of the process of collection or preparation.
Section 113 of the Act provides the means of defence of the original vendor referred to above, and the power of the local authority to short circuit the prosecution. It reads (so far as material) as follows:
Section 113(1)
"A person against whom proceedings are brought under this Act shall, upon information duly laid by him and on giving to the prosecution not less than three clear days' notice of his intention, be entitled to have any person to whose act or default he alleges that the contravention of the provisions in question was due brought before the court in the proceedings; and if, after the contravention has been proved, the original defendant proves that the contravention was due to the act or default of that other person, that other person may be convicted of the offence, and, if the original defendant further proves that he has used all due diligence to secure that the provisions in question were complied with, he shall be acquitted of the offence."
(2) [Immaterial for this purpose]
"(3) Where it appears to the authority concerned that an offence has been committed in respect of which proceedings might be taken under this Act against some person and the authority are reasonably satisfied that the offence of which complaint is made was due to the act or default of some other person and that the first-mentioned person could establish a defence under subsection (1) of this section, they may cause proceedings to be taken against that other person without first causing proceedings to be taken against the first mentioned person.
In any such proceedings the defendant may be charged with, and, on proof that the contravention was due to his act or default, be convicted of, the offence with which the first-mentioned person might have been charged."
The appellants did not seek themselves to make use of this procedure as regards any third party, and thus the case before the Magistrates turned ( a) on the ability of the prosecution to prove the contravention by Tesco Limited, and the act or default of the appellants and ( b) on the ability of the appellants to establish a defence under section 3(3) of the Act.
In the event, the Magistrates convicted the appellants and subjected them to a fine of £25, but, on the application of the appellants, stated a Case for the Divisional Court, raising the following questions, viz:
"1( a) Whether section 2(1) of the Food and Drugs Act, 1955, creates an absolute offence; ( b) whether a defence under section 3(3) of the said Act is established if the defendant proves that he took all reasonable care to avoid the presence of extraneous matters in the food;
2. Whether we were right, on the facts found by us, to convict the appellant in this case."
After expressing a good deal of sympathy with the appellants, the Divisional Court (Lord Widgery L.C.J., Mackenna & Bean J.J.) dismissed the appeal and affirmed the conviction. But they certified that a point of law of general public importance was involved in their decision, namely:
"Is a defence established under section 3(3) of the Food and Drugs Act, 1955, if a Defendant proves that he took all reasonable care to avoid the presence of extraneous matter in the food he manufactures".
Leave to appeal was subsequently given by the Appeal Committee of your Lordships' House.
My Lords, I do not think that I need discuss the actual terms of the Case Stated by the Magistrates. Though the contrary was argued in the Divisional Court, it was accepted in this House that the substance of the peas and caterpillar taken together were not of the substance demanded by the purchaser. On the other hand, the appellants gave the fullest and most candid account of their processes which led the Magistrates to conclude that they
"had taken all reasonable care to prevent the presence of the caterpillar in the tin."
Thus, if the question certified by the Divisional Court were to be answered...
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