England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		14 June 2006

1. MR JUSTICE McCOMBE: There are before the court two linked applications for judicial review made respectively by Sainsbury's Supermarkets Limited ("SSL") and J Sainsbury PLC ("PLC"). The applications are brought with the permission of Mrs Justice Black, granted on 9 March 2006. On the first application SSL applies to review the decision of District Judge (Magistrates' Courts) Farmer, made on 6 December 2005 in the Plymouth Magistrates Court, allowing the amendment to the summons and information to substitute SSL as defendant to the charge laid before the court after the expiry of the relevant limitation period. In the second application PLC applies to review the decision of the same District Judge on the same occasion allowing the same amendment, removing PLC as defendant but refusing to make a defendant's costs order in favour of PLC under Section 16 of the Prosecution of Offences Act 1985. Neither application has been resisted by the defendant or by the prosecutor, who have filed acknowledgements of service indicating that they do not intend to contest the proceedings.
2. The prosecution arose out of a complaint made to trading standards officers in respect of a jam doughnut purchased from "Sainsbury's" (I use the expression neutrally) supermarket at Armada Way in Plymouth on 26 August 2004. The complaint led to a prosecution under Section 8 of the Food Safety Act 1990 which provides:

"Any person who -

Sells for human consumption ..... any food which fails to comply with food safety requirements shall be guilty of an offence."

3. Under Section 34 of the same Act the time limit for prosecutions under Section 8 is three years from the commission of the offence or one year from its discovery by the prosecutor whichever is the earlier. It was accepted that at all material times the time limit of the issue of the summons on this case was on or about 25 August 2005. The Trading Standards Department of the Plymouth City Council ("the Council") laid an information on 19 August 2005 and a summons was issued accordingly. The information was laid against "J Sainsburys plc (trading as Sainsburys Supermarket Ltd)". Neither "J Sainsburys plc" nor "Sainsburys Supermarket Ltd", as so named, exist in law. The incorporated companies which do exist, having names similar or broadly similar to those that appeared in the summons, are SSL and PLC, of which the full names have been given already.
4. The underlying facts as to the identification of the defendant in the proceedings were as follows.
5. After the complaint had been made a representative of the Council visited the store in question on various occasions. He had been given a till receipt by the complainant customer of the supermarket. This, like all till receipts issued by the store, displayed SSL's name. A Particulars of Ownership notice under Section 4 of the Business Names Act 1985 displayed stated "J Sainsbury and Sainsbury's are the business names under which Sainsbury's Supermarkets Limited" (ie SSL) "carries on business at these premises".
6. By a letter dated 20 January 2005, the council sent a letter addressed to "Mr Alan Lacey, Regulatory Affairs Manager ..... J Sainsbury's plc" at an address in London posing a number of questions arising out of the matter. That letter was answered by Mr Lacey, stating that he was "Regulatory Affairs Manager J Sainsbury's plc" who said that he was "able to speak on behalf of Sainsbury's Supermarkets Limited" (that is SSL).
7. By letter dated 25 August 2005 addressed to the company secretary, a summons was sent in the name of "J Sainsburys plc (trading as Sainsburys Supermarket Limited)". By letter dated 21 September 2005, Messrs Bond Pearce, Solicitors, informed the prosecutor that PLC was the holding company of the group and that it was SSL that operated the business of the store in question.
8. The case came before the court initially on 29 September 2005 when it was adjourned until 17 November 2005 for an application for dismissal on behalf of PLC and the exchange of skeleton arguments. The matter could not be heard on 17 November and was adjourned again until 6 December.
9. On 6 December 2005 the case came before the district judge. As appears from the judge's written reasons, counsel appeared, instructed by Bond Pearce, for PLC and it was acknowledged that PLC was not responsible for selling the goods in question. On the application of the prosecution the district judge allowed the documentation to be amended to identify SSL as the defendant to the proceedings. The learned judge's reasoning can be derived from paragraphs 8 and 9 of his written reasons for decision which are in the following terms:

"8. So I am left with this:

(i) Mr Lacey the Regulatory Affairs Manager of J Sainsbury Plc is aware of the investigation into Sainsburys Supermarkets Ltd.

(ii) Staff at the store are aware of the investigation and why it is taking place.

(iii) With the exception of the words 'plc' (which I acknowledge are not insignificant) the summons follows the wording of the particulars of business notice displayed at the premises.

(iv) By the use of the words 'trading as Sainsburys Supermarket Ltd' the summons addressed incorrectly as it is clearly makes the intended recipient of the summons known namely the company responsible for the sale of goods at Armada Way.

9. Given that the intended defendants are named in the summons, that everyone involved was aware of who was being investigated and why, and bearing in mind the inevitable possibility of confusion where similar names are used, then when I acknowledge there was no intent to confuse, the public at large would be incredulous if the court did not correct the defective summons as requested, and that I am prepared to do as requested."

The learned judge was referred to the previous decisions of this court on rather similar questions that arose in Marco (Croydon) Ltd v Metropolitan Police Commissioner [1983] Crim LR 395 and R v Greater Manchester Justices ex p Aldi GmbH & Co KG (1994) 159 JP 727.

10. In the first case - Marco - the defendant company traded as A & J Bull Containers. They hired out a builder's skip which was left out, unlit, on the highway at night. A cyclist rode into it and was most tragically killed. An information was laid against "A J Bull Ltd", charging an offence under Section 139 (4) of the Highways Act 1980. The hearing took place after the expiry of the six-month limitation period permitted by Section 127 of the Magistrates' Court Act 1980. Counsel appeared for A & J Bull Limited, a separate company entirely.
11. The offending skip had on it the name "A & J Bull". A delivery and collection note in respect of it bore the inscription "Marco (Croydon) Limited T/A A & J Bull Containers". On application of the prosecution the justices allowed the defendant company's name to be amended to that of Marco (Croydon) Limited. The company was convicted.
12. On appeal to this court it was held that the justices had been wrong to permit the amendment. Mr Justice Glidewell (with whom Mr Justice Nolan agreed) said that he considered that the justices had correctly formulated the law in the case stated as follows:

"We were of the opinion that, where the wrong person has been summoned, amendment should not be allowed but where the prosecutor has correctly identified the defendant but merely misstated the name, amendment should be allowed ..... " (see page 32 H-K)."

They applied that test in this way:

"Applying those principles to the present case we were of the opinion that the prosecutor clearly intended to summon the corporation which supplied the skip whose name was wrongly copied from the delivery note. We therefore allowed the amendment."

Mr Justice Glidewell continued:

"What the justices do not say and do not specifically find is that the correct company, Marco (Croydon) Limited, received the summons and were apprised that they were being blamed for breach of Section 139 ..... and it was that company, through [counsel], which appeared before the justices on 11 June" -

the date of the hearing -

"[Counsel] says that he appeared instructed by another company called A & J Bull Limited which is a separate legal entity ..... "

The court accordingly allowed the appeal.

13. In the second case - Aldi - a similar mistake was made. The defendant named in the summons was a wholesale company in a group. The offences charged were mispricing offences under Section 20 of the Consumer Protection Act 1987. The proper defendant was accordingly the retail company in the group. The justices allowed an amendment to name the retail company as defendant and made an order that the wholesale company should pay the costs. The latter decision was made largely on the basis that the wholesalers had been in correspondence for some time with the prosecutor and had failed to point out the error until shortly before the hearing. Following the Marco case, this court consisting of lady Justice Butler-Sloss (as she then was) and my Lord, Mr Justice Latham (as he then was) allowed the appeal of the retail company against the order permitting the amendment but declined to interfere with the justices' exercise of discretion in awarding costs against the wholesaler.
14. Lady Justice Butler-Sloss referred again to the passage from the justices' stated case in Marco (which I have quoted) and applied it to the case then before the court. The learned Lady Justice considered that that case was "on all fours" with the earlier decision and found that the defendant company before the justices had a complete defence to the charges laid. The true offender was not before the court at all. My Lord, in his judgment, said that the effect of the amendment was to allow a charge to be laid out of time against a new defendant.
15. In my opinion, the simple question here is whether the effect of the amendment allowed was to permit a charge to be brought out of time against a new defendant, namely SSL. The district judge took the view that by the use of the words "trading as Sainsburys Supermarket Ltd" the summons addressed incorrectly the intended recipient of the summons, namely the company responsible for the sale of goods at the store in question. I, for my part, fully understand the approach of the district judge and his very careful reasons for distinguishing the reported cases. Regrettably however in my view that is to fall into the same error as was made in Marco itself, namely to hold that it was sufficient that the prosecutor clearly intended in that case to summon the corporation which supplied the skip. If anything, the documents evinced an intention to prosecute PLC which it erroneously stated traded as "Sainsburys Supermarket Ltd". The effect of the summons was that counsel appeared before the court for PLC and not for SSL as the judge clearly finds at paragraph 2 of his reasons. As in the two earlier cases, and as appears from the same paragraph of the reasons of the judge, the proper defendant was not before the court. The effect of the district judge's decision was, in my view, to prefer a charge against a new defendant outside the statutory time limit.
16. For those reasons I would grant the judicial review sought in SSL's claim.
17. On the costs application by PLC, my view can be shortly stated. In this case, unlike that of Aldi, PLC did not lull the Council into a sense of security that PLC was the proper defendant to the intended prosecution. Mr Lacey made it clear that he was in a position to answer questions on bahalf of SSL. In the letter to which Mr Lacey was eplying it seemed that the council was indeed intending to elicit information from that company (although again its name was somewhat misstated) which it understood to be the company responsible for trading at the store. It was only on the very last day of the limitation period that the summons was issued in the incorrect name, a fact for which PLC was in no way responsible. PLC had a complete defence to the charge. It was dismissed from the proceedings by the amendment made, and I consider that it was entitled to a defendant's costs order.
18. I would also allow PLC's claim for judicial review accordingly.
19. MR PHILPOTT: As far as SSL is concerned, I would ask for an order that the decision of the district judge be quashed and that the defendant pay the costs of SSL, to be assessed, in the proceedings before this court.
20. LORD JUSTICE LATHAM: We will hear what Miss Taylor has to say. I should have said "I agree".
21. MISS TAYLOR: I ask that the order not allowing costs also be quashed in respect of J Sainsbury PLC and that Plymouth Magistrates' Court be directed to make an order for costs for J Sainsbury's in relation to the matter before it on 6 December be paid out of central funds. In respect of today's application, I also request that costs be paid to J Sainsbury PLC under Section 16 of the Prosecution of Offences Act. (Pause)
22. LORD JUSTICE LATHAM: For the reasons given by my Lord with which I have indicated I agree, the appeal of SSL was successful and in our judgment the ordinary costs order should follow, namely that SSL should be entitled to its costs against the local authority. As far as the appeal by PLC is concerned, it seems to me that PLC are entitled to the order that they asked for in the Magistrates' Court, and accordingly there will be an order requiring the magistrates to make a defendant's costs order in favour of PLC in relation to the Magistrates' Court proceedings. However we are concerned that there will appear to be a duplication of representation which may be of importance to SSL and PLC as between each other, but I see no reason why the public should be required to pay for the additional representation which has been the consequence.
23. The result is that I would make no order for costs in relation to the appeal hearing today.
24. MR PHILPOTT: That is in respect of counsel's fees? I am sorry to be addressing you on this.
25. LORD JUSTICE LATHAM: No. I make no order for costs at all in relation to the PLC application.
26. MR JUSTICE McCOMBE: I agree and would make the same orders as my Lord proposes.

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