QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE BEATSON
|PMS INTERNATIONAL GROUP PLC||(CLAIMANT/SECOND APPELLANT)|
|NORTH EAST LINCOLNSHIRE COUNCIL||(DEFENDANT)|
|IN THE PINK LTD|
|(Trading as Everything A Pound)||(CLAIMANT/FIRST APPELLANT)|
|NORTH EAST LINCOLNSHIRE COUNCIL|
|(TRADING STANDARDS SECTION)||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR JEREMY BARNETT (instructed by Chadwick Lawrence) appeared on behalf of the CLAIMANT/FIRST APPELLANT IN THE PINK LTD
MR JEREMY LINDSAY (instructed by Legal Department, North East Lincolnshire Council) appeared on behalf of the DEFENDANT
Crown Copyright ©
" ..... any product or material designed or clearly intended for use in play by children of less than 14 years of age ..... "
There follows an immaterial exclusion.
a) On 4 June 2003 a 12-year old child purchased an 'A Plus Office Stationery Set' from the first appellant's retail shop at Freshney Place, Grimsby and subsequently a complaint was made about the product to the local office and Trading Standards Department;
b) On 11 June 2003 an officer from the Trading Standards Department visited the first appellant's retail shop at Freshney Place, Grimsby. An identical product to the one purchased by the child was being offered for sale;
c) The second appellant had supplied the stationery set which was being exposed for sale on 11 June 2003 to the first appellant;
d) The stationery set comprised items packed on flat cardboard and covered with loose transparent plastic;
e) The items on the cardboard were
• two ball points pens
• one roll of sticky tape 10 feet long on a plastic dispenser
• a pack of paper clips.
• a stapler
• a box of staples
• a pair of scissors
• a craft knife and blades.
and could be clearly viewed through the plastic.
f) The cardboard was headed with the logo 'A Plus' and described the item as an 'Office Stationery Set';
g) The product was available in a variety of bright colours;
h) Two of the items (the scissors and stapler) in the packaging were of a smaller size than is usual for items of that sort in a stationery set and thereby had limited functionality. The finger holes in the scissors were too small for comfortable use by adult fingers and would have been too flimsy for office use;
i) The pen caps did not have holes in their tops such as would mitigate breathing difficulties in the event of them being swallowed;
j) The packaging contained no warnings or indications of precautions to be taken when using the knife but did contain a 'CE' mark;
k) The stationery set was displayed for sale on a shelf about 4 feet from the floor in an area of the shop where colouring books and children's pens were also being displayed for sale;
l) The shop offered for sale a large array of different products including toys, stationery, gardening products, cleaning products and other general items all at the price of £l.00.
b) It was clearly impossible for us to be certain about what the precise intentions of the manufacturers of the product in question were when the item was designed and made but we felt that we could look at all the relevant surrounding circumstances to form a view about that;
c) Taken together the price, positioning and colour of the product indicated to us that this product was attractive to, targeted at and clearly intended for use by children under the age of 14;
d) The product was flimsy in nature and unsuitable for use in an office environment. It would have very limited use to an adult;
f) The packaging carried the CE mark which indicated that the product conformed with the Toy (Safety) Directive and whilst many members of the general public would not appreciate the significance of the mark, it was an indicator which we felt we could take into account alongside other factors when deciding whether the product was a toy or not;
g) The product had 'play value' and would be used by a child under 14 for their play and amusement;
h) The product did contain a craft knife which included a blade of the sort which it would have been illegal to sell to a person under 16 years of age by virtue of the Criminal Justice Act 1988. We were of the view, however, that we should look at the product in the round and the fact that one item of it could not legally be sold to a person under 16 years of age did not render the whole product as being categorised as a toy;
i) Having considered all the matters referred to above it was right to conclude that the 'A Plus Office Stationery Set' was a toy within the definition found in The Toys (Safety) Regulations 1995. In reaching that conclusion we did not rule out the possibility that a person aged 14 years or older might find the product attractive for various reasons and even an adult could have purchased it and made some use of it in certain circumstances. However, the factors we have referred to and the facts we found drove us to the clear conclusion that the product fell within the definition set out by the Regulations.
"The Bench recognise that this is not a conventional, imaginative, fluffy toy. The Bench believes that this set is a young person's replica of an adult stationery set designed for their play and amusement. The Bench also believes that the items are of seriously limited use to an adult and targeted in general towards a younger customer. The Bench therefore comes to the conclusion that this is a toy."
1) Did we err in giving limited weight to the fact that the stationery set contained within it a craft knife the blades of which could not lawfully be sold to a person under the age of 16 years?
2) Did we err in giving weight to those factors which we took into account when deciding the 'A Plus Office Stationery Set' was a toy, when the definition of a toy by regulations states that the criteria is whether the item was 'either designed or clearly intended for use in play by children under the age of 14 years'?
3) Did we err in failing to give any or sufficient weight to other factors in the case when we formed our opinions that the 'A Plus Office Stationery Set' was a toy within the meaning of the regulations?