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
		15th November 2006

1. LORD JUSTICE WALLER: I will ask Mr Justice Lloyd Jones to give the first judgment.
2. MR JUSTICE LLOYD JONES: This is an appeal by case stated against the decision of District Judge Earl, sitting in the Teesside Magistrates' Court on 27th September 2005. He convicted the appellant, DSG Retail Ltd, which trades as Currys, of two offences of giving misleading price indications, contrary to section 20 of the Consumer Protection Act 1987.
3. The proceedings related to a Price Promise, a statement made by DSG, that it would beat a competitor's price provided that certain conditions were met. The prosecution case was that DSG displayed and sold to a trading standards officer, originally acting in her private capacity, a Hotpoint tumble dryer model TDL 52P, which was for sale at Currys at the price of £159.99 and at a nearby Comet store the same tumble dryer was for sale at the price of £119.99. The prosecution case was that the staff of the Currys store refused to meet the Price Promise.
4. It is necessary to refer to the precise terms of the charges. The first charge stated that:

"... on 31st December 2003 in the said Borough at premises known as Currys, Teesside Retail Park, Stockton, you did in the course of a business, give an indication to a consumer, namely ANGELA ADDISON, by means of a leaflet with a Price Promise stating 'We won't be beaten on price. Currys has unbeatable low prices because, in the unlikely event that you find a lower price for the same model and offer from a local retail store, we will reduce our price by 110% of the difference. We will only do this where the offer is available to purchase immediately at another retail store within 10 miles of Currys - either before you buy or within 7 days afterwards,' which was misleading as to the price at which goods, namely a Hotpoint Tumble Dryer model TDL 52P, were available, in that you failed to honour your Price Promise in relation to the said tumble dryer which was available to purchase immediately at a cheaper price from the Comet Store at Teesside Retail Park in Stockton, Contrary to Section 20(1) of the Consumer Protection Act 1987."

5. The second charge stated:

"... on 5th January 2004 in the said Borough at Teesside Retail Park, Stockton, you did in the course of a business, give an indication to a consumer, namely ANGELA ADDISON, by means of a leaflet with a Price Promise stating 'We won't be beaten on price. Currys has unbeatable low prices because, in the unlikely event that you find a lower price for the same model and offer from a local retail store, we will reduce our price by 110% of the difference. We will only do this where the offer is available to purchase immediately at another retail store within 10 miles of Currys - either before you buy or within 7 days afterwards,' which was misleading as to the price at which goods, namely a Hotpoint Tumble Dryer model TDL 52P, were available, in that you failed to honour your Price Promise in relation to the said tumble dryer which was available to purchase immediately at a cheaper price from the Comet Store at Teesside Retail Park in Stockton, Contrary to Section 20(1) of the Consumer Protection Act 1987."

I draw attention to the fact that in each case the particulars of the offence alleged are that there was a failure to honour the Price Promise in relation to the tumble dryer which was available for purchase immediately at a cheaper price at another store.

6. The prosecution case was that on 31st December 2003 Mr and Mrs Addison priced the Hotpoint tumble dryer model TDL 52P at the Comet store at £119.99. They went to the Currys store and saw the same model priced at £159.99. They also saw signs around the store simply saying, "We will not be beaten on price." They asked for and were given the Price Promise leaflet and asked the store to match the Comet price. This was refused on the basis that the Comet price was not cheaper but the same. Then Mr and Mrs Addison returned to Comet and obtained confirmation of the lower price. When they returned to Currys, the prosecution maintain that Mrs Hume, the deputy manager, refused to honour the Price Promise. Mrs Addison then informed Mrs Hume that she was a Trading Standards Enforcement Officer.
7. The prosecution case was that on 2nd January 2004 Mrs Addison, in her official capacity as a Trading Standards Enforcement Officer employed by the respondent authority, returned to the Currys and Comet stores with Mr Winn, another Trading Standards Officer, to check both prices. On 5th January 2004 the prosecution maintain that Mrs Addison and Mr Winn spoke to the Currys deputy manager, who confirmed the price for the tumble dryer was £159.99. They later returned and made a purchase at that price. They asked for the Price Promise to be honoured and this was refused, and again refused by Mrs Hume a short time later. Mrs Addison advised Mrs Hume that the offences would be reported.
8. Evidence was given on behalf of the prosecution by Mrs Addison, by her husband in relation to the events of 31st December 2003, by Mr David Neil, the store manager of the nearby Comet shop and by Mr Winn.
9. At the close of the prosecution case, there was a submission of no case to answer. The submission was that an essential element of the offence was that the price which was being compared was the price for the same item. It had been pointed out to Mrs Addison in the course of her cross-examination that the receipt issued by Currys for the sale of the tumble dryer showed a tumble dryer plus a vent kit. It was submitted that there was no evidence on which the tribunal of fact could conclude to the required standard that the item for sale in Comet was the same item. That submission was rejected by the District Judge. The submission was repeated at the close of the defence case, when it was once again rejected. The appellant was convicted, fined £3,000 on each count, and was ordered to pay costs of £3,920.
10. At the request of the appellant, the magistrate has stated a case seeking the opinion of the High Court on the following three questions:

"1. Was I entitled to conclude at the close of the Prosecution case that there was a case to answer?

2. In reaching my decision both upon the submission of no case and in convicting, was I entitled to take into account the uncontroverted evidence put before me of two forms of Price Promise, although the Prosecution did not open the case upon that basis?

3. Was I entitled to find at the end of the trial that the Prosecution had proved the allegation in the information beyond reasonable doubt? More specifically, was I entitled to find that what was for sale at the Defendant's store for £159.99 was the same as what was for sale at the competitor's store for £119.99?"

11. I must refer at this point to the case stated in a little more detail. In his submissions to the District Judge, counsel for the appellant drew particular attention to the following features of the evidence. The receipt issued by the appellant for the sale of the tumble dryer described it as "TDL 52P plus vent". Mrs Addison in the course of her cross-examination had stated that until it was pointed out to her by counsel for the appellant, she had not noticed that the receipt she was given by the appellant referred to a tumble dryer plus vent. She did not know if the tumble dryer for sale at Comet for £119.99 was being sold with a vent kit.
12. Mr Addison said, when he was cross-examined, that no mention had been made of the vent kit on 31st December. He did not know if the tumble dryer for sale at Comet for £119.99 was being sold with a vent kit.
13. Mr Neil, the store manager of Comet, Darlington, said that he could not say if the machine for sale at his store for £119.99 came with a vent kit. Some did. He said that it would be on the store ticket. He stated that Hotpoint tumble dryers usually came with a vent kit. On re-examination he said that if the machine had not come with a vent kit, the customer would be asked how they proposed to vent it.
14. Mr Winn does not appear from the case stated to have been asked about this aspect of the case.
15. In rejecting the submission of no case, the District Judge considered the evidence in the light of R v Galbraith (1981) 73 Cr App R 124 and R v Shippey [1988] Crim LR 767. In the case stated, he says:

"I was satisfied that at the conclusion of the Prosecution case, upon the evidence of Mrs Addison, Mr Winn and Mr Neil that there was some evidence taking the case at its highest that a jury properly directed could properly convict."

16. In the case stated the District Judge did not identify the specific features of the evidence which he considered entitled him to come to that conclusion. He merely stated:

"I believed the case strongly turned upon the reliability of the prosecution witnesses in the giving of their evidence and, as such there was evidence of a misleading price indication before me for the trial to proceed."

He also referred to another matter:

"In addition I was aware of evidence given by Mrs Addison as to the second price promise on the A4 posters in store referring to 'product or offer' and since that evidence was before me and unchallenged, this bolstered the potential case for the prosecution although not led directly by the Respondent in opening or in the information laid."

17. The case stated does not include any further indication as to the basis on which the District Judge concluded that there was a case to answer. The case stated does go on to deal with the findings of fact made by the District Judge at the conclusion of the case. These include a finding that both stores were offering to sell a Hotpoint tumble dryer TDL 52P, at Comet for the price of £119.99 and Currys at a price of £159.99; that at no time was the vent kit referred to as the reason for refusing to honour the Price Promise; and that the breach of the Price Promise amounted to a misleading price indication. The District Judge also found that there were two conflicting Price Promises operating in the Currys store on both dates in question. One referred to "model and offer", and the other to "product or offer".
18. On the hearing of this appeal an application was made by the respondent authority for permission to adduce further evidence, in the form of a witness statement from a representative of the manufacturer of the tumble dryer in question, to the effect that these products were at that time supplied complete with a vent kit. We refused the application. I consider that this court would be unlikely to receive any assistance from such further evidence. The question for decision by this court is a question of law in relation to the first and third questions posed. The question is whether there was evidence before the District Judge capable of supporting his conclusion. I doubt that the court would be assisted in performing that task by having regard to further evidence.
19. In any event, there is a further objection to admitting this evidence. The position before the District Judge may well have been that the prosecution were taken by surprise by this particular aspect of the case, which emerged only for the first time during the course of the cross-examination of the prosecution witnesses. I note that in the course of such a prosecution, there is no obligation on the defence to put forward any form of defence statement. Although the principles stated in Ladd v Marshall are no longer applied as strictly as they have been in the past, the considerations there identified nevertheless remain important factors to take into account on any application to adduce further evidence on an appeal. I consider that it would have been open to the prosecution to have sought an adjournment in order to obtain further evidence relating to this particular issue. No such application was made. In all the circumstances, I consider that permission should not be given to adduce further evidence on this hearing of the appeal by way of case stated.
20. In this regard, I would also draw attention to the fact that in his skeleton argument Mr Travers on behalf of the appellant has drawn the court's attention to extensive notes of evidence which were taken at the hearing before the District Judge. In response to a suggestion by my Lord, Lord Justice Waller that what is sauce for the goose is sauce for the gander, Mr Travers has not applied for permission to adduce these records as evidence on the hearing of this appeal.
21. I consider it impermissible on an appeal by way of case stated for reference to be made to such further material outside the record provided by the case stated. The parties to the proceedings below are given an opportunity to make representations on the draft of the case stated. That is now contained in the Criminal Procedure Rules, Part 64.2(2). This is the opportunity afforded to the parties to ensure that all relevant facts are included. If the case is one in which it is contended that there was insufficient evidence on which the magistrates (or in this case the District Judge) could come to a particular conclusion, the parties have the opportunity at that stage to ensure that the account of the evidence given by the draft case stated is sufficiently complete. In my judgement, it is not permissible to seek to supplement the case stated on the hearing of the appeal before the High Court by reliance on notes of evidence taken at the hearing below. Indeed, I consider this a negation of the procedure by way of case stated. In this regard I would draw attention to the observations of Stanley Burnton J in Skipaway Ltd v Environment Agency [2006] EWHC 983 (Admin), in which he stated:

"There is a surprisingly common misconception that once an appeal by way of case stated is before the court, the parties may refer to evidence, or at least undisputed evidence, that was before the lower court in addition to that set out in the case.

15. On an appeal by way of case stated, the Court is confined to the facts set out in the case. It is therefore important that the parties ensure that the case includes all those matters that should be before the Court when deciding the issues raised on the appeal. If a party to an appeal considers that the case produced by the lower court omits relevant matters, he should seek to have the case supplemented either by agreement with the other party and the lower court or by application to this Court under section 28(A)(2) of the Supreme Court Act 1981 for an order for the amendment of the case stated."

I would respectfully agree.

22. Approaching the matter on the basis of the case stated, what was the evidence on which the District Judge approached the question of whether the product offered for sale at Currys and Comet was the same product? Mrs Addison gave evidence that it was the same dryer. Mr Addison corroborated her evidence of the events of 31st December. However, Mrs Addison also made clear in the course of her cross-examination that the question as to whether a vent kit was supplied had never occurred to her, and she clearly had not addressed it. It might be thought that the fact that the same products were for sale in different stores might give rise to an inference that what was supplied was precisely the same, and that they would be supplied by the manufacturers in precisely the same form. Moreover, in the present case there is no suggestion that any particular point was made in the Currys store of the fact that they supplied the particular tumble dryer complete with a vent kit.
23. However, it seems to me that the evidence of Mr Neil is critical here. His evidence was that dryers sometimes come with vent kits and sometimes without vent kits. In the light of that, I consider that it was not open to the tribunal of fact to come to the conclusion on the basis of the evidence before him that it was established to the criminal standard that the products were identical. Even taking account of the fact that one must take the prosecution evidence at its highest, I consider that there was insufficient evidence to meet the criminal standard.
24. The respondent says that at no point during the two-day trial did the appellant state that the refusal to honour the Price Promise was due to the product not being identical. That may well be the case, but to my mind it does not answer the point. This narrow basis of putting the case to be found in the charges turns on a comparison of the two products. If they were not identical, the case would not be made out on this narrow basis, whether or not that was appreciated by the appellant.
25. Similarly, I doubt that one can draw an inference from the fact that Currys' staff had made enquiries of Comet as to whether the product was the same and then did not rely on that point in defending the charges, or indeed in declining to meet the Price Promise.
26. For these reasons, I consider that the first and third questions should be answered in the negative. So far as the second question is concerned, given the specific basis on which the charges were framed, I consider that the District Judge was not entitled to take into account the evidence of the two forms of Price Promise.
27. During the course of argument we invited counsel to address us on whether the evidence before the District Judge would have enabled him to say that offences under section 20 were committed by a failure to meet the Price Promise by advancing reasons not referred to in the price offer itself. Mrs Taylor, on behalf of the respondent, invited us to approach the case on this alternative basis. Mr Travers, for the appellant, raised two objections to the suggestion that it might have been open to the District Judge to convict on some such alternative basis. First, he relies on the particulars of the offences as charged and, secondly, he maintains that the evidence which would have been called on behalf of the appellant would have been different.
28. I am satisfied that the first of these is a complete answer. In these circumstances I do not need to address the second, nor do I say anything further about the possibility that the case might have been put on an alternative basis. It was not charged on that alternative basis, nor was the prosecution pursued before the District Judge on that basis.
29. For these reasons, I would allow the appeal.
30. LORD JUSTICE WALLER: I agree. I have had some anxieties about this case. One has a feeling that the prosecution were probably ambushed by what happened in the putting of the case to the prosecution witnesses. Unfortunately, however, the evidence before the District Judge was as it was and, equally unfortunately, the charges were on the narrow basis that they were.
31. Thus, for all the reasons given by my Lord, I too agree that this appeal must be allowed.
32. MR TRAVERS: My Lords, I invite you to say that it is an appropriate course to do no more than to quash the orders made below and to quash the conviction. (The Bench conferred)
33. LORD JUSTICE WALLER: Have you anything to say on whether there should not just be the quashing of the orders?
34. MRS TAYLOR: No, my Lord.
35. MR TRAVERS: My Lords, I am anxious not to mislead you. I would propose to say something about costs. I was addressing you specifically about the consequential order on the judgments that have been delivered.
36. LORD JUSTICE WALLER: Yes. Obviously the file must be quashed, that is clear. Equally, I do not understand it to be resisted that the costs order in the court below --
37. MR TRAVERS: No, indeed. For the avoidance of doubt, what I am inviting this court to do is simply to quash the orders below and not to remit it, simply to quash it. I am also going to make an application for the costs of this appeal. I am anxious I did not mislead you in the way I inelegantly phrased what I said.
38. LORD JUSTICE WALLER: Have you anything to say?
39. MRS TAYLOR: No, my Lord.
40. LORD JUSTICE WALLER: Right. Well then, the decisions below will be quashed, there will be no remission --
41. MR TRAVERS: I am obliged.
42. LORD JUSTICE WALLER: -- and the appellant should have their costs here.
43. MR TRAVERS: I am obliged. My Lord, those costs are available to the successful appellant in this court, as my Lords know, from the local authority or from central funds. In my submission, they should come from the local authority in this instance. There should be inter partes costs.
44. LORD JUSTICE WALLER: That would be my understanding of the order.
45. MR TRAVERS: Yes, I am grateful.
46. MRS TAYLOR: My Lord, the understanding that we were given is that the orders for costs would come from central funds. Perhaps all I can say on behalf of the respondent at this stage is that throughout they were a responsible authority.
47. MR JUSTICE LLOYD JONES: What was the source of the understanding?
48. MRS TAYLOR: It was in documentation.
49. LORD JUSTICE WALLER: The understanding is what?
50. MRS TAYLOR: The application was initially for --
51. MR TRAVERS: No, I know what my learned friend is thinking of. The District Judge when asked to state a case refused in the first instance and there were proceedings brought in this court's list. Those were compromised. We took the view that the most cost-effective way to deal with that was to compromise them by consent order, the District Judge having agreed to state a case. In respect of those proceedings we took the view that we would not pursue any inter partes costs for the judicial review, and there is an order extant I think sealed by this court to that effect in respect of the judicial review proceedings, because the District Judge's position is no fault of the local authority. Plainly it is not a matter that they could possibly be criticised for. In respect of this appeal, I would ask for inter partes costs.
52. MRS TAYLOR: My Lord, I apologise, yes. That is what was said in correspondence.
53. LORD JUSTICE WALLER: And you do not resist that order, is that what I am understanding?
54. MRS TAYLOR: My Lord, all I can say again is this. One would like to be able to resist it, yes. The reason this matter is here is as a result of the findings of the District Judge, and I would submit not from the fault of the prosecuting authority who, I submit, acted reasonably and responsibly throughout.
55. LORD JUSTICE WALLER: No. I think the whole problem probably arises (a) out of the nature of the charge, and (b) out of no application for an adjournment once ambushed. You can already tell from the terms of what I said and I think what my Lord has said that we feel some sympathy for you, but you did not have to fight this appeal.
56. MRS TAYLOR: No, I think I take the point.
57. LORD JUSTICE WALLER: You shall have your costs of the appeal --
58. MR TRAVERS: I am obliged.
59. LORD JUSTICE WALLER: -- and payable by the local authority.
60. MR TRAVERS: I am obliged.
61. LORD JUSTICE WALLER: I am grateful to everybody. Thank you very much.
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