Stoke-on-Trent City Council v B & Q (Retail) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Fraser of Tullybelton,Lord Keith of Kinkel,Lord Roskill,Lord Templeman |
| Judgment Date | 17 May 1984 |
| Judgment citation (vLex) | [1984] UKHL J0517-2 |
| Date | 17 May 1984 |
| Court | House of Lords |
[1984] UKHL J0517-2
Lord Diplock
Lord Fraser of Tullybelton
Lord Keith of Kinkel
Lord Roskill
Lord Templeman
House of Lords
My Lords,
The facts of this case are set out in the judgment to be delivered by my noble and learned friend, Lord Templeman, which I have had the advantage of reading in draft. I agree with his reasons for upholding the injunction in this case and dismissing this appeal. I would associate myself with the comments made by him and by my noble and learned friends, Lord Fraser of Tullybelton and Lord Roskill, upon the caution with which a court should approach the grant of an injunction to prevent infringements of the criminal law for which Parliament has enacted a maximum pecuniary penalty. I also agree with Lord Roskill's observations on certain passages in the extempore judgment of the Court of Appeal in Reg. v. Braintree District Council, Ex parte Willingham (1982) 81 L.G.R. 70, in reaching what I do not doubt was a correct decision refusing judicial review in that case.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Templeman, and I agree with it. I wish particularly to associate myself with his view that something more than infringement of the criminal law must be shown before the assistance of civil proceedings, by way of injunction, can be invoked by the local authority. That something more is required in order to establish that the offender is not merely infringing the law but that he is "deliberately and flagrantly flouting it": see per Bridge L.J. in Stafford Borough Council v. Elkenford Ltd. [1977] 1 W.L.R. 324, 330. In the present case the judge was satisfied that the intention of flouting the law had been brought home to the appellant and I am not prepared to differ from his conclusion to that effect.
I agree also with Lord Roskill's observations on the case of Reg, v. Braintree District Council, Ex parte Willingham, 81 L.G.R. 70. I would dismiss the appeal.
My Lords,
I have had the benefit of reading in draft the speech to be delivered by my noble and learned friend, Lord Templeman. I agree with it, and for the reasons he gives I too would dismiss the appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Templeman. I agree with it and for the reasons he gives I would dismiss this appeal. In agreement with both Whitford J. and the Court of Appeal I am clearly of the opinion that an injunction should issue for I see no reason to doubt that were that injunction now discharged Sunday trading in defiance of the Shops Act 1950 might well be resumed in the respondents' area. But I wish to record my particular agreement with the observations of both my noble and learned friends, Lord Fraser of Tullybelton and Lord Templeman, that something more than infringement of the criminal law must be shown before it is proper for a local authority to seek and the court to grant an injunction, thus enabling civil process to be invoked in support of the criminal law with the consequence that more serious penalties might be imposed for breach of an injunction than the Shops Act allows for breach of the relevant provisions of that statute.
The other matter to which I wish to advert is the decision of the Divisional Court (Donaldson L.J. and Webster 3.) in Reg, v. Braintree District Council, Ex parte Willingham, 81 L.G.R. 70, a decision discussed in argument before this House. The essential facts of that case were simple. A group of shopkeepers in Witham within that District Council's administrative area sought and obtained an order of judicial review of the council's decision not to prosecute certain persons for alleged Sunday trading in Witham. In his judgment, at p. 75: Donaldson L.J. said
"So there were two factors plainly operating on the committee's mind, in addition to the factor that this matter ought to be determined: that it was going to be expensive and it was going to be unpopular. Neither of those factors are legitimate factors to be taken into account in terms of the duty which is imposed upon the council under section 71 of the Act of 1950".
Later in his judgment Donaldson L.J. said, at pp. 78-79:
"But in the present case it is quite clear that the council have taken account of the financial liabilities involved in performing the section 71 duty, which is not a permissible factor to be taken into account, save in the case where there are two ways of enforcing the provisions of the Act of 1950, and one is cheaper than the other. Then of course it is permissible to take it into account. But you cannot escape from the duty merely because it is expensive. That was the first error. The second error was to take account of the fact that the infringing activity (if infringing it is) is very popular in the locality. That, reasonably clearly, did influence the council, although I fully accept that they were advised that they should not allow it to influence them.."
My Lords, I do not doubt that upon the basis that the decision not to prosecute was founded upon the supposed popularity of Sunday trading in Witham, the council were at fault and the judicial review was for that reason properly ordered. But if by his reference in the two passages I have quoted to "expense" and "taking account of financial liabilities" Donaldson L.J. meant that in weighing all the factors before deciding whether or not to prosecute in a particular case or group of cases, a local authority must never take into account the possible financial consequences to their ratepayers of a prosecution, both in the event of its success and of its failure, I respectfully disagree. A local authority charged with the duty of enforcing the Shops Act cannot of course properly say that it will never carry out its statutory duty because of the expense involved in so doing. Were it to adopt that attitude, I do not doubt that its decision would be subject to judicial review on Wednesbury principles. If Donaldson L.J. meant no more than that I would respectfully agree. But the passages quoted, albeit in an extempore judgment, are susceptible of a wider interpretation. I think the duty of a local authority is correctly summarised by Webster J. in the concluding sentences of his judgment, at page 79:
"the duty of that authority under section 71(1) is first of all to consider - and these matters may have to be done at the same time, but not necessarily - whether that conduct prima facie constitutes a contravention of the provisions of the Act. If so, then they have to consider whether it is necessary to institute and carry on proceedings in respect of that prima facie contravention in order to secure observance of the provisions of the Act. If they decide that it is necessary to do so, then they have a duty to institute and carry on those proceedings."
My Lords, I see no reason why when considering whether it is necessary to institute and carry on proceedings, the local authority are not entitled to have regard, in relation to the particular case or cases in question, to the financial consequences of any suggested action. If for example there is a serious or doubtful question of law involved which may involve a series of appeals and thus cast a heavy financial burden on ratepayers, whatever the result but especially if the prosecution ultimately fails, I cannot think that the local authority after taking proper legal advice is debarred from taking that factor among others into account before reaching their final decision whether or not it is necessary to institute and carry on proceedings.
My Lords,
The appellants, B & Q (Retail) Ltd., challenge the right of the respondent Stoke-on-Trent City Council to bring proceedings to restrain the appellants from trading on Sundays from the appellants' shops in Stoke-on-Trent in breach of the Shops Act 1950.
Section 47 of the Shops Act 1950 provides that, save for certain authorised transactions, every shop in England and Wales shall "be closed for the service of customers on Sunday." By section 71(1):
"It shall be the duty of every local authority to enforce within their district the provisions of this Act … and for that purpose to institute and to carry on such proceedings in respect of contraventions of the said provisions … as may be necessary to secure observance thereof."
Section 71(2) directs every local authority to appoint inspectors for the purposes of the Act and provides:
"An inspector may, if so authorised by the local authority, institute and carry on any proceedings under this Act on behalf of the authority."
I agree with the observations of my noble and learned friend, Lord Roskill, concerning the duty of the local authority under section 71 of the Act.
The appellants' shops at Waterloo Road, Burslem, and Leek Road, Hanley, are within the district of the council. The appellants' shops traded in prohibited articles on Sunday, 11 April 1982, and after a warning from a council representative, again on 18 April. The appellants were warned of legal proceedings on 19 April and traded in prohibited articles on 25 April.
By section 59 of the Shops Act 1950, the occupier of a shop which trades on Sundays in breach of the Act was made liable to a fine of £5 for a first offence and £20 in the case of a second or subsequent offence. By section 31 of the Criminal Justice Act 1972 the penalties were increased to £50 and £200 respectively and those were the maximum penalties for offences up to 11 April 1983. By sections 35 to 48 of the Criminal Justice Act 1982 from 11 April 1983 an occupier of a shop trading in breach of the Shops Act 1950 is liable to a maximum fine of £500 for any offence and...
To continue reading
Request your trial
-
Runnymede Borough Council v Ball
...at any public inquiry held by or on behalf of any Minister…" 31 It is clear from the decision of the House of Lords in Stoke on Trent Council v. B. & Q. Limited, 1984 A.C. 754 that this enactment is wide enough to authorise the local authority to institute proceedings for the enforcement o......
- City of London Corporation v Bovis Construction Ltd
- Portsmouth City Council v Richards
-
The Law Society of England and Wales v Dixit Shah (also known as Sanjay Shah)
...Society is not endowed with any general capacity to enforce the law within its regulatory sphere, Mr Heather referred me to Stoke-on-Trent Council v. B & Q Ltd [1984] 1 AC 754, in which the House of Lords held that section 222 of the 1972 Act enabled a local authority to bring civil proceed......
-
Civil Remedies in Law Enforcement: The Planning Experience
...(5) Under s. 183. (6) Gouriet v Union of Post Office Workers [1978] AC 435. (7) eg Stoke-on-Trent City Council v B & Q (Retail) Ltd [1984] AC 754. (8) Stoke-on-Trent. (9) [1992] 3 All ER 697, CA. (10) Rmmymede Borough Council v Smith [1986] JPL 592, Doncaster Borough Council v Green (1991) ......