Stafford Borough Council v Elkenford Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE SCARMAN,LORD JUSTICE BRIDGE |
| Judgment Date | 06 December 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J1206-3 |
| Docket Number | 1976 S. No. 5208 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 December 1976 |
[1976] EWCA Civ J1206-3
The Master of the Rolls (Lord Denning)
Lord Justice Scarman and
Lord Justice Bridge
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The High Court of Justice Chancery Division (Mr. Justice Oliver
MR.K SCALEMANN (instructed by The Solicitor, Stafford Borough Council) appeared on behalf of the Plaintiffs (Respondents).
MR. P. FREEMAN, Q.C. and MR. B. BEACH (instructed by Messrs. Joelson, Wilson & Co., Solicitors, London, agents for Messrs Kenneth Wainwright & Co. Solicitors, Stafford) appeared on behalf of the Defendants (Appellants)
We need not trouble you, Mr. Schiemann.
This case is about an activity which has developed a great deal lately, Sunday market trading. It comes from Staffordshire. Towards the end of last year a company called Elkenford Ltd. set up a market in a country estate called Raleigh Hall. It is about 2½ miles north of the village of Eccleshall in the middle of a predominately rural area served only by country lanes.
The market was conducted in this way: The company formed a proprietary club. Many stallholders went there on Sundays and set up stalls to sell things. On some stalls they sold children's anoraks. On other stalls there were ornaments, zip fasteners, and things of every kind of description. The stallholders brought with them the gear for setting up the stalls. They brought tubular frames, canvas covers and so forth. They put them up on Sundays and sold from them. They paid a fee to the company for the privilege. They invited all comers to come and buy.
Those who came and bought had to go through the form of joining the club. It was 5 pence to become a "member". In addition if they came in a car they had to pay 10 pence for parking, and so forth. So there was quite a good deal of money coming into the company in one way and another.
The enterprise seems to have been so successful that it increased by leaps and bounds. So much so that in the course of this year 25,000 people on a Sunday would come to this Sunday market. No doubt they enjoyed the outing in the country - they came from Manchester, Stafford and all round - and the fun of buying things at bargain prices.
The company tried to disguise it under the cloak -of a "club". A form was used which suggested that the goods were sold to the club and then re-sold back to the traders, and soforth. That was obviously a sham. the truth or it was that this was a market trading on Sundays only.
Now the Stafford Borough Council - of course it is now a big area under the local government reorganisation - have a duty to enforce the Shops Act, 1950. The section itself puts upon every county council a positive duty to enforce the provisions of the Act. The Council took several proceedings. First, they launched a prosecution before the magistrates on the ground that the Elkenford companies were breaking the provisions of the Act. Second, they took proceedings under the planning law. They said there was a breach of planning control, and they took enforcement proceedings against the company.
The third step they took was to proceed in the Chancery Division of the High Court of Justice for an injunction to restrain the company from carrying on unlawful trading contrary to the Shops Act.
The magistrates convicted the company of an offence against the Shops Act. They fined the company a comparatively small sum and a considerable sum of costs; and from that there is a case stated waiting for the consideration of the Divisional Court.
So far as the planning matters are concerned, there was an appeal to the Minister. There is probably to be an enquiry as to whether there has been a breach of planning control, but that has not come on for determination.
The first matter which has come on for determination by a superior court is our present case.
The question is whether there is a breach of the Shops Act and whether it is a proper case for an injunction. It is plain to me that this market was carried on in breach of the I Shops Act, 1950. Section 47 of that act says: Every shop shall, save as otherwise provided by this Part of this Act, beclosed for the serving of customers on Sunday". This was not a shop, but on the other hand there is a section of the Act which makes it equivalent to a shop. Section 58 says: "The foregoing provisions of this Part of this Act … shall extend to any place where any retail trade or business is carried on as if that place were a shop, and as if in relation to any such place the person by whom the retail trade or business is carried on were the occupier of a shop".
It is plain that the Raleigh Hall estate was a "place" within the meaning of the statute. It is an old camp site or something of that kind. There are several pre-fabricated buildings and the like on it. It is clearly a "place". Equally it is clear that a retail-trade or business is carried on in that place. An inspection was carried out by officers of the Staffordshire County Council between 10 a.m. and 11 a.m. on the 27th June, 1976. They recorded half a dozen or more sales which were clearly retail trade or business. The attempt to camouflage the deals under the guise of a club was completely unsuccessful. So it is plain that...
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