Stoke-on-Trent City Council v W. & J. Wass Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,LORD JUSTICE NICHOLLS,LORD JUSTICE MANN |
| Judgment Date | 29 July 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0729-13 |
| Docket Number | 88/0700 |
| Court | Court of Appeal (Civil Division) |
[1988] EWCA Civ J0729-13
Lord Justice Nourse
Lord Justice Nicholls
and
Lord Justice Mann
88/0700
No. 86-S-1295
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR. JUSTICE PETER GIBSON)
Royal Courts of Justice,
MR. T. CULLEN, Q.C. and MS. B. HEWSON (instructed by Messrs. Park Nelson, W.C.2.,Agents for Messrs. Bishops, Stoke-on-Trent) appeared on behalf of the Appellants (Defendants).
MR. R. REID, Q.C. and MR. R. CAMPBELL (instructed by Messrs.Sharpe Pritchard, W.C.2., Agents for S.W. Titchener Esq., Stoke-on-Trent) appeared on behalf of the Respondents (Plaintiffs).
The levying of an unlawful same day market within 6 2/3 miles of a franchise or statutory market is actionable at the suit of the market owner without proof of loss. At trial he will usually be awarded a permanent injunction and nominal damages. Where an interlocutory injunction has been running before trial, no further question of damages will usually arise. In respect of any period before or after trial where no injunction is in force, substantial damages will be recoverable if loss can be proved. But suppose a case where there has been no loss. Is the market owner kept to his nominal damages or can he recover substantial damages on the footing that if his leave and licence had been sought he could have required a fee to be paid to him? That is the novel and somewhat surprising question with which we are confronted on this appeal.
In the first week of November 1982 the defendants, W & J Wass Ltd. ("the Company"), started to operate a Thursday market at Adderley Green, Longton; which, with Tunstall, Burselm, Hanley, Stoke-on-Trent and Fenton (the six of Arnold Bennett's five towns), is within the area of the plaintiffs, Stoke-on-Trent City Council. At all those places except Fenton the Council have for very many years, under statutory authority, operated markets on Wednesdays, Fridays and Saturdays. Although they had not operated a market in Fenton before November 1982, in October of that year the Council's Estates Committee had resolved to seek outline planning permission in respect of a market on the car park at City Road, which is the nearest of all their sites to the Company's market. Accordingly, when the Company advertised its intended market during the same month the Town Clerk responded with a letter of protest, warning it of possible proceedings to prevent the Council's market rights being infringed.
Undeterred by that protest and without planning permission, the Company went ahead with the operation of its market on the Adderley Green site, where it was held every Thursday until 1986. Enforcement and stop notices were duly served on the Company, which appealed to the Secretary of State. On 8th June 1983, after a planning inquiry, the appeal was rejected. The Company then appealed to the Divisional Court of the Queen's Bench Division, but on 30th January 1984 that appeal was dismissed and leave to appeal to this court was refused. The Company failed to comply with the enforcement notice. It was prosecuted in the magistrates' court and eventually convicted on 11th October 1985. It gave notice of appeal, but abandoned the appeal in December of that year.
The Company then decided to move its market to a new site slightly to the north-west of the original. From 13th February 1986 its market has been held on the new site with part of the original site being used as a car park. On 21st February 1986 the Company applied for planning permission for the new site, but that application was refused on 19th May. An enforcement notice was served on 3rd July 1986 against which the Company has appealed. That is how the matter stood in planning terms when this action came on for trial in February 1987. We were told that the further planning appeal is to be heard in September of this year. The Company is currently operating its market on Tuesdays. So far nothing short of an injunction has deterred it from holding its market on one or other site on one or other day. But its deliberate breaches of the law are not material to the question which arises on this appeal.
On Thursday, 12th April 1984 the Council opened their own market on a smaller part of the City Road car park in Fenton than that originally proposed. They have continued to hold it there on every Thursday since. On 4th March 1986, shortly after the Company commenced operating on its new site, the writ in this action was issued. The Council alleged that the Company was infringing their right to operate their own market at Fenton on Thursdays. It claimed an injunction restraining the holding of a market and general damages. The Council applied for an interlocutory injunction, but that application was dismissed by Mr. Michael Wheeler, Q.C., sitting as a deputy judge of the Chancery Division. He gave directions for a speedy trial.
The action was heard by Peter Gibson J. The Company, while accepting, first, that at common law a franchise market is entitled to protection from disturbance caused by the levying of a rival same day market held within 6 2/3 miles of the franchise market without proof of loss and, secondly, that a market set up by a local authority under section 49 of the Food and Drugs Act 1955 (now section 50 of the Foods Act 1984) is prima facie entitled to the like protection, contended that a statutory market was not entitled to be protected against a rival market which was in operation before the commencement of the statutory market. The learned judge held that the construction of section 49 (3) of the 1955 Act was against that contention, which he accordingly rejected. He also held that it was for the Council to prove that the Company's market had caused loss to their Wednesday, Friday and Saturday markets and he found that no such loss had been suffered. None of the learned judge's decisions on these points has been questioned in this court.
Peter Gibson J. then turned to consider how the Council's Thursday market at Fenton ought to be protected. The Company contended that no permanent injunction ought to be granted, but that contention was rejected and there has been no appeal on that point. The sole subject-matter of the appeal is the judge's award of damages for the period extending between the commencement of the Council's Fenton market and his grant of the permanent injunction at trial. It seems likely that this question has been more fully argued than it was in the court below.
As to the question of loss to the Council's Fenton market, the learned judge expressed himself thus, at p.l8A of the transcript: "There has been some investigation before me of what damage, if any, has been caused to the Fenton market. After initial enthusiasm from stallholders, there has been a falling-off in the take-up of available stalls, so that even at peak times in the last two years there have always been stalls available for letting. It is the closest of the Council's markets to the Company's market and it is another general market like the Company's market, though on a smaller scale. But there is no clear evidence that directly links the Fenton market's comparative lack of success to the success of the Company's market. The Fenton market is not on a good site and it is in a somewhat depressed area, Fenton being a town where some 150 buildings are bricked up and awaiting development by the Council. The misgivings initially expressed about the feasibility of a market in Fenton appear to have been borne out. If the ordinary rule for assessing damages is applied and the Council can only recover the loss if it can show it has suffered, I might well be forced to conclude that nominal damages are appropriate." These observations, although provisional in expression, have been treated by both sides as a finding that no loss was caused to the Council's Fenton market and no appeal has been brought against that finding.
Peter Gibson J. then went on to hold that the Council were nevertheless entitled to an award of damages on the basis of what would have been an appropriate licence fee for the Council to require for a licence to the Company to operate its market between April 1984, when the Council's Fenton market first opened, and the date of his order. He ordered an inquiry as to damages to be taken accordingly. Against that holding the Company has appealed to this court.
Mr. Cullen, for the Company, recognised that the Council's right of action does not depend on proof of loss to their Fenton market. If there was ever any doubt about it, this rule, which depends on an irrebuttable presumption that an unlawful same day market held within the common law distance is a nuisance to the lawful one, has now been settled by the decision of this court in Sevenoaks District Council v. Pattullo & Vinson Ltd. [1984] Ch., 211, approving the decision of Mr. Vivian Price, Q.C., in Tamworth Borough Council v. Fazeley Town Council [1978] 77 LGR, 238, where the earlier authorities are exhaustively reviewed. Mr. Cullen accepted that the Council are entitled to nominal damages. But he submitted that the finding that no actual damage was caused precludes the court from awarding substantial damages on top.
The levying of an unlawful rival market is a tort. Whether it should properly be categorised as a nuisance or a trespass is probably not a question of importance. The better view must be that it is a nuisance. The general rule is that a successful plaintiff in an action in tort recovers damages equivalent to the loss which he has suffered, no more and no...
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