Stoke-on-Trent City Council v B & Q (Retail) Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON,LORD JUSTICE ACKNER,LORD JUSTICE OLIVER |
| Judgment Date | 26 April 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J0426-1 |
| Docket Number | 83/0169 1982 W. No. 16293 1982 B. No. 16360 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 April 1983 |
[1983] EWCA Civ J0426-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (Civil Division)
(On appeal from—Mr. Justice Whitford Mr. Justice Nourse Mr. Justice Falconer)
Royal Courts of Justice
Lord Justice Lawton,
Lord Justice Ackner
and
Lord Justice Oliver
83/0169
1982 S. No. 2111
1982 W. No. 16293
1982 B. No. 16360
Mr. JOHN SAMUELS QC and Mr. NICHOLAS DAVIDSON (instructed by Messrs. Hepherd Winstanley and Pugh, Southampton) appeared on behalf of B. & Q. (Retail) Ltd. (Appellants in Stoke-on-Trent appeal).
Mr. ROBERT REID QC and Mr. NICHOLAS PATTEN (instructed by Messrs. Sharpe Pritchard & Co., Agents for Mr. S.W. Titchener, Stoke-on-Trent) appeared on behalf of Stoke-on-Trent City Council (Respondents).
Mr. ROBERT REID QC and Mr. NICHOLAS PATTEN (instructed by Messrs. Sharpe, Pritchard & Co., Agents for Mr. Michael Duffell, Wolverhampton) appeared on behalf of Wolverhampton Borough Council (Appellants in Wolverhampton appeal).
Mr. JOHN SAMUELS QC and Mr. LAURENCE WEST-KNIGHTS (instructed by Messrs. Hepherd Winstanley and Pugh, Southampton) appeared on behalf of B. & Q. (Retail) Ltd. (Respondents).
Mr. KONRAD SCHIEMANN QC and Mr. KEITH KNIGHT (instructed by Messrs. Laytons) appeared on behalf of Homecharm Retail Ltd. (Appellants in Barking appeal).
Mr. JULIAN SANDYS (now QC) (instructed by Mr. D.C.J. Farr, Barking) appeared on behalf of the London Borough of Barking and Dagenham (Respondents).
Mr. SIMON BROWN (instructed by The Treasury Solicitor) appeared on behalf of H.M. Attorney-General as amicus curiae.
These three appeals raise a common issue. Can local authorities obtain injunctions to restrain shopkeepers from anticipated unlawful Sunday trading contrary to section 47 of the Shops Act 1950? In the Wolverhampton appeal this is the sole issue. In the other two appeals queries arise on the evidence as to whether the proceedings were ever properly authorised and instituted.
The common issue touches upon a matter of general interest and some public controversy. It is common knowledge that the provisions of the Shops Act 1950 about Sunday trading are widely disregarded and that many people want the statutory prohibition against the Sunday opening of shops for many kinds of retail trading repealed. But not all want this. Some local authorities do what they can within their resources to curb unlawful Sunday trading. Others do little, if anything. We were told by Mr. Schiemann, who has an extensive knowledge of local government law and administration, that for a few years now some local authorities have sought and obtained injunctive relief against anticipated unlawful Sunday trading; but not all applications have been successful. In the cases before us, the Stoke-on-Trent and 3arking Councils got such relief: Wolverhampton did not.
The two companies involved in these appeals are typical defendants. They both have chains of retail shops which sell building materials and tools which are used mostly by individuals for home repairs and improvements—colloquially known as do-it-yourself goods. The sale of these kinds of goods on Sundays is clearly convenient to customers who want to use them during their week-ends away from their normal work.
There was some evidence in the Stoke-on-Trent case, which may be typical of what is happening in many areas, that it was the policy of that local authority to proceed by injunction against the bigger retailers and by warnings against the smaller. This alleged policy was criticised as oppressive at first instance but it is, in my opinion, justifiable if it is effective, as it may be, either by warning off the smaller retailers or by making examples of the bigger ones so as to deter the others.
At the outset of this judgment I wish to make clear what I regard as irrelevant considerations: first, that section 47 of the Shops Act 1950 is widely disregarded; secondly, that many people want it repealed; thirdly, that many people find it convenient to shop for non-exempt goods on Sundays; and fourthly, that with the resources of manpower and money which are available to local authorities many of them could not hope to stop unlawful Sunday trading save on a selective and spasmodic basis which would probably be regarded as unfair and oppressive. My judicial duty is to apply the law as laid down by Parliament, not to change it. Change is the function of Parliament, not of judges. But cases may reveal to Parliament weaknesses and anomalies in the law which call for change. Whether these appeals will have such an effect is for Parliament to decide.
This appeal brings out clearly the main issue in all three appeals. It is uncomplicated by side issues. The appellants B & Q (Retail) Ltd have three retail shops in Wolverhampton. In the late Spring and Summer of 1982 they advertised locally that their shops would be open on Sundays; and they were. On November 3, 1982 they were convicted by the Wolverhampton Magistrates of 24 offences under section 47 of the Shops Act 1950 and fined £50 in respect of each, and ordered to pay £120 costs. The offences had been committed on dates between May and July 1982.
On October 13, 1982 the Environmental Health and Control Committee of the Council met. It was the appropriate one to consider breaches of section 47 of the Shops Act 1950. It had before it a report from its Chief Executive and Town Clerk which stated what the appellants B & Q (Retail) Ltd had been doing in Wolverhampton and that they had been convicted in a number of other towns of unlawful Sunday trading. The report also dealt with the unlawful trading of other retailers. It contained the following paragraph:
"Since fines are no deterrent, the only effective form of action which can be taken against companies trading in defiance of the Shops Act 1950 is that taken by Stoke City Council, viz: the obtaining of an injunction. A local authority has power under section 222 of the Local Government Act 1972 to take such proceedings where they consider it expedient for the promotion or protection of the interests of the inhabitants of their area. This would entail more serious sanctions being applied against the company and its directors and management should they continue to open and I understand that since the obtaining of the injunction at Stoke-on-Trent the store of B & Q (Retail) Ltd has remained closed".
The Chief Executive advised that before starting proceedings these appellants should be sent a warning letter. This advice was accepted. On October 19 a letter was sent to them under the heading "Shops Act 1950—Sunday Trading":
"In response to complaints received by the Council, inspections by officers of the Environmental Health Department have revealed that premises operated by you in Wolverhampton are open on Sundays and are then selling goods outside those contained in the Fifth Schedule to the above Act. This of course is in clear breach of the law and a report was accordingly submitted to the Environmental Health and Control Committee of the Council last week. The Committee resolved that if the operations in breach of the law did not cease application would be made to the Court for an injunction to compel you to observe the law. I therefore inform you that should your premises in Wolverhampton be open in breach of the Shops Act 1950 next Sunday, 24 October, and subsequently, application Will be made to the Court for an injunction without further notice".
These appellants took no notice. They opened their shops on October 24 and again committed offences against section 47 of the Shops Act 1950.
On November 9, 1982 the Policy and Resources Committee resolved that the decisions on Sunday trading taken by the Environmental Health and Control Committee should be supported. The Chief Legal Officer was authorised to start proceedings for an injunction. He did so. A writ was issued on December 13, 1982 and on the same day the Wolverhampton Council served a notice of motion asking for an injunction to restrain these appellants until trial from using or causing or permitting the use of their premises otherwise than for lawful Sunday trading. The affidavit in support, sworn by an assistant solicitor in the Council's employment, ended as follows:
"6. I believe that the defendants have been warned verbally as well as by letter that they are breaking the provisions of the Shops Act 1950 and that the defendants continue to trade in breach of section 47 of the Shops Act 1950.
7. The plaintiffs are under a duty to enforce the provisions of the Shops Act 1950 and I verily believe that contravention of the legislation will take place if an injunction is not granted".
In my judgment the Council had good grounds for thinking that these appellants would go on committing offences under section 47 unless restrained by injunction. I infer that they would not have been deterred by having had even the maximum fine of £200 imposed upon them for each offence. They would have regarded this as the price they had to pay for Sunday opening and that that price was worth paying having regard to the profits which were likely to be made.
Nourse J. heard the motion on January 18, 1983 and dismissed it. The Council have appealed. The learned judge gave two reasons for his decision. The Council had failed to show first, that the proceedings for an injunction were "expedient for the protection of the interests of the inhabitants of their area" as...
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