Wings Ltd v Ellis (on Appeal from a Divisional Court of the Queen's Bench Division)
| Jurisdiction | England & Wales |
| Judge | Lord Hailsham of St. Marylebone L.C.,Lord Keith of Kinkel,Lord Scarman,Lord Brandon of Oakbrook,Lord Templeman |
| Judgment Date | 15 November 1984 |
| Judgment citation (vLex) | [1984] UKHL J1115-3 |
| Date | 15 November 1984 |
| Court | House of Lords |
[1984] UKHL J1115-3
House of Lords
Lord Chancellor
Lord Keith of Kinkel
Lord Scarman
Lord Brandon of Oakbrook
Lord Templeman
My Lords,
I have read in draft with admiration and appreciation the speech about to be delivered by my noble and learned friend, Lord Scarman. I agree without qualification with the result, and in great part with the reasoning by which it was arrived at. But since I have arrived at the conclusion by a slightly different route and with feelings of somewhat greater sympathy with the respondent to this appeal and wish to give a slightly differently worded answer to the certified question, I have felt it right to embody my own reasoning in a separate opinion.
The facts are as follows. On 13 January 1982 Mr. Robin Wade booked a holiday in Sri Lanka for himself and his wife at the Seashells Hotel, Negombo. He did so on the strength of a brochure issued fairly early in 1981 by the well known holiday firm Wings Ltd (the respondents to the instant appeal). The booking was at Thomas Cook Ltd. at Plymouth, but was effected by telephone through the A.A. Travel Services Agency, by means of their appropriate limited company.
The brochure was inaccurate in two material particulars. In the first place, the brochure used the code letters "A.C." in connection with the accommodation provided by the hotel. This meant that the accommodation would be air conditioned, whereas in fact it was not air conditioned - but cooled, if at all, by fans, and protected against flying insects by mosquito nets. In the second place, the brochure illustrated the accommodation available at the Seashells Hotel by the photograph of a particular room. It was the wrong photograph and the wrong room. The photograph was not the photograph of any room in the Seashells Hotel, but another photograph of superior accommodation to that in fact provided. We shall not be concerned with the photograph in this appeal, save in so far as it is referred to in the narrative of the proceedings below.
I must make it clear that, at the time at which they distributed the brochure in at least 250,000 copies, Wings Ltd., who so far as appears are a perfectly reputable organisation, did so in complete innocence. They had no notion that the brochure's information relating to the Seashells Hotel was in any way inaccurate. Shortly after it was issued, they discovered their mistake, and immediately took remedial action. They sent a memorandum to all their staff each to amend his own brochures. This memorandum was dated 1 June 1981. A letter was prepared for sending a corrective letter to all clients who had already booked holidays. Mr. Robin Wade never in fact received this letter. He did not book until January 1982 and in any event he could only be contacted through the travel agents. The corrective memorandum by Wings Ltd. also instructed sales agents to inform travel agents and customers of the error when initial telephone bookings were made. The relevant telephone sales agent, Sandra Leathers, had duly corrected her brochure, which was in evidence, by deleting the letters "A.C." and indicating that cooling was by electric fan. In a "section 9 statement," which was not challenged, she claimed that she would have passed these corrections on to the travel agents, and I will assume that she did so. However this may be, Mr. Wade was not informed of the lack of air conditioning either by the relevant travel agent or by Wings Ltd. He went to Sri Lanka expecting air conditioning, and, not unnaturally, on his return in April 1982, he made a complaint that he had been misled. His complaint was forwarded to Wings Ltd. by A.A. Travel Services Ltd. in a letter dated 5 April 1982. After further correspondence, to which I will not refer, the complaint was taken up in a letter dated 24 June 1982 by the present appellant, David Kenneth Ellis, who was the County Trading Standards Officer for Devon. In the event, the respondents found themselves charged in the present proceedings for two offences under section 14 of the Trade Descriptions Act 1968, that is, respectively, under section 14(1)( a)(ii), in respect of the misuse of the code letters "AC" and under section 14(1)( b)(ii) in respect of the false photograph. Section 14 of the Trade Descriptions Act 1968 provides as follows:
"14 (1) It shall be an offence for any person in the course of any trade or business - ( a) to make a statement which he knows to be false; or ( b) recklessly to make a statement which is false; as to any of the following matters, that is to say, - (i) the provision in the course of any trade or business of any services, accommodation or facilities; (ii) the nature of any services, accommodation or facilities provided in the course of any trade or business; (iii) the time at which, manner in which or persons by whom any services, accommodation or facilities are so provided; (iv) the examination, approval or evaluation by any person of any services, accommodation or facilities so provided; or (v) the location or amenities of any accommodation so provided. (2) For the purposes of this section - ( a) anything (whether or not a statement as to any of the matters specified in the preceding subsection) likely to be taken for such a statement as to any of those matters as would be false shall be deemed to be a false statement as to that matter; and ( b) a statement made regardless of whether it is true or false shall be deemed to be made recklessly, whether or not the person making it had reasons for believing that it might be false. (3) In relation to any services consisting of or including the application of any treatment or process or the carrying out of any repair, the matters specified in subsection (1) of this section shall be taken to include the effect of the treatment, process or repair. (4) In this section 'false' means false to a material degree and 'services' does not include anything done under a contract of service."
The only other sections of the Act to which I need refer in detail are sections 23 and 24, which are in the following terms:
"23. Where the commission by any person of an offence under this Act is due to the act or default of some other person that other person shall be guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this section whether or not proceedings are taken against the first-mentioned person.
Defences 24(1) In any proceedings for an offence under this Act it shall, subject to subsection (2) of this section, be a defence for the person charged to prove - ( a) that the commission of the offence was due to a mistake or to reliance on information supplied to him or to the act or default of another person, an accident or some other cause beyond his control; and ( b) that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control. (2) If in a case the defence provided by the last foregoing subsection involves the allegation that the commission of the offence was due to the act or default of another person or to reliance on information supplied by another person, the person charged shall not, without leave of the court, be entitled to rely on that defence unless, within a period ending seven clear days before the hearing, he has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of that other person as was then in his possession. (3) In any proceedings for an offence under this Act of supplying or offering to supply goods to which a false trade description is applied it shall be a defence for the person charged to prove that he did not know, and could not with reasonable diligence have ascertained, that the goods did not conform to the description or that the description has been applied to the goods."
The two summonses with which the respondents were charged were: as to the first charge (under section 14(1)( a)(ii)) that Wings Ltd. on 13 January 1982:
"(i) did in the course of a trade or business make a statement which the appellant knew to be false as to the nature of the accommodation at the Seashells Hotel Negombo Sri Lanka namely the statement "A.C." contained in the description of the said hotel on page eight of the appellant's brochure, namely 'Wings Faraway Holiday Winter Oct. 1981 - April 1982' indicating that the bedrooms at the said hotel were air conditioned whereas in fact they were not contrary to section 14(1)( a)(ii) of the Trade Descriptions Act 1968."
As to the second charge (under section 14(1)(b)(ii)):
"(ii) did in the course of a trade or business recklessly make a statement which was false as to the nature of the accommodation at the Seashells Hotel Negombo Sri Lanka namely the the photograph titled 'Bedroom at Seashells Hotel' on page eight brochure, namely 'Wings Faraway Holidays Winter Oct. 1981 - April 1982' the said photograph being likely to be taken as an indication that the bedrooms of the said hotel were air conditioned whereas this was not the case as the photograph was not of any bedroom at the Seashells Hotel contrary to section 14(1)( b)(ii) of the Trade Descriptions Act 1968."
In the events which happened, the magistrates convicted the respondents under both summonses and imposed in each case a fine of £500, and against those convictions the respondents appealed to the Divisional Court by way of case stated.
The Divisional Court (Mann J., who delivered the judgment, and Robert Goff L.J.) allowed the appeals on both summonses and quashed the convictions. But since the appellant does not challenge the result under section 14(1)( b)(ii) (in respect of the photograph which was alleged...
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