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 WC2A 2LL
		10th December 2008

1. SIR ANTHONY MAY: There is before the court a Case Stated by justices for the County of Greater Manchester sitting at Ashton under Lyne, following their conviction, on 20th August 2007, of the appellant on two of five informations alleging contravention of sections 1(1)(a) and 1(1)(b) respectively of the Trade Descriptions Act 1968. These alleged offences arose from the sale of a Fiat Punto ST Active to a Mr Rhodes in May 2006.
2. The Case Stated took some time to prepare. It was served on the appellant's solicitors on 22nd December 2007. The time limit for filing an appellant's notice is 10 days: see CPR Part 52, practice direction 18.4. That expired on 22nd December 2007. The appellant's notice was not filed until 3rd January 2008, a few days late, taking account of Christmas and the New Year. No prejudice has caused by those days. In my judgment, plainly the necessary extension of time should be granted.
3. Mr Beglan has very helpfully covered much paper with learning about extensions of time and with copious reference to Part 3.9 of the Civil Procedure Rules. It is true that more than a year has passed since the convictions, and more than 2 years since the alleged offences, but the requisite extension is small and, absent prejudice, scarcely requires explanation.
4. Mr Beglan also referred to the possibility, which I shall deal with in a moment, of the Case Stated being remitted to the magistrates, which might have brought other matters into consideration. Certainly, it has taken quite a long time to come to this court, but in reality, in my judgment, the court is concerned with this really quite small extension of time which has caused no prejudice. Accordingly, I would extend the time for filing the notice of appeal in this case.
5. There is also an application by the appellant to remit the case to the magistrates for the case to be amended, which needs further explanation. The informations upon which the appellant was convicted were in these terms:

"a) On or around 22^nd June 2006 in the course of a trade or business [the appellant] did apply a false trade description to goods, in that a pre registered Fiat Punto ST Active was advertised as a 'new' vehicle in the Advertiser local newspaper. Contrary to s1(1)(a) Trade Descriptions Act 1968

(b) On or around 25^th June 2006 in the course of a trade or business did supply goods to which a false trade description has been applied, in that a pre-registered Fiat Punto ST Active was supplied as a 'brand new' vehicle. Contrary to s1(1)(b) Trade Description Act 1968".

6. Section 1(1) of the Trade Descriptions Act 1968 provides:

"Any person who, in the course of a trade or business,—

(a) applies a false trade description to any goods; or

(b) supplies or offers to supply any goods to which a false trade description is applied;

shall, subject to the provisions of this Act, be guilty of an offence."

7. Section 2 provides that "a trade description is an indication, direct or indirect, and by whatever means... of any of the following matters with respect to any goods or parts of goods..." and there follows a fairly long list of matters to which that applies. These listed matters do not include price. Mr Beglan, on behalf of the respondent, rightly accepts that, generally speaking, price is not part of a trade description of goods for the purposes of the 1968 Act. Questions of misleading price are dealt with under consumer protection legislation. Mr Beglan does, however, submit that sometimes an indication of price could go towards identifying the goods referred to.
8. Section 3 of the Act provides:

"(1) A false trade description is a trade description which is false to a material degree.

(2) A trade description which, though not false, is misleading, that is to say, likely to be taken for such an indication of any of the matters specified in section 2 of this Act as would be false to a material degree, shall be deemed to be a false trade description."

9. Section 5 of the 1968 Act provides as follows:

"(1) The following provisions of this section shall have effect where in an advertisement a trade description is used in relation to any class of goods.

(2) the trade description shall be taken as referring to all goods of the class, whether or not in existence at the time the advertisement is published—

(a) for the purpose of determining whether an offence has been committed under paragraph (a) of section 1(1) of this Act; and

(b) where goods of the class are supplied or offered to be supplied by a person publishing or displaying the advertisement, also for the purpose of determining whether an offence has been committed under paragraph (b) of the said section 1(1).

(3) In determining for the purposes of this section whether any goods are of a class to which a trade description used in an advertisement relates regard shall be had not only to the form and content of the advertisement but also to the time, place, manner and frequency of its publication and all other matters making it likely or unlikely that a person to whom the goods are supplied would think of the goods as belonging to the class in relation to which the trade description is used in the advertisement."

10. The appellant placed an advertisement in the Tameside Advertiser for 22nd June 2006 stating, as found by the justices in the Case Stated, "Drive away a New Fiat" and it gave the price for a Fiat Punto ST Active as £6,995. That is a rather shorthand description by the justices of the actual advertisement, which we have been provided with. The actual advertisement does not, in literal terms, apply the adjective "new" to the Fiat Punto ST Active, which appears further down the page. The form of the advertisement is rather different. It has towards the top the words "Drive away a New Fiat", there is then some intervening material about deposits and rates of interest and insurance, and there are then three successive pictures of three different types of Fiat. The second of those is a Fiat Punto ST Active, described in the box in which it appears, relevantly, by those words, plus the words "06 reg", under which are the words "delivery mileage". The justices proceeded, and the Case Stated proceeds, on the basis that what this advertisement stated was the composite of "drive away a new Fiat Punto ST Active at a price stated to be £6,995".
11. A Mr Rhodes, having seen the advertisement, went to the appellant's garage, inquiring about a Fiat Punto. He did so on or about 25th June 2006. He was shown a Fiat Punto ST Active in the main foyer, took it for a demonstration drive, and decided he wanted to buy it, or such a car. It appears that he was in fact to buy a different Fiat Punto ST Active and his evidence to the justices was that Mr Coleman of the appellant declined to negotiate a price reduction "as it was a new vehicle".
12. Mr Rhodes is recorded as having said that he understood that he was buying a new vehicle, like the one on display. The vehicle he actually bought had been pre-registered in April 2006. The prosecution case was that it was a false trade description to have described this pre-registered vehicle as new. Beyond the fact that the evidence was that Mr Rhodes lost 2 months of his warranty, there is no material evidence or finding by the justices in the Case Stated to indicate that there was any other basis for the case that it was not new, as, for instance, if a previous registered owner had taken delivery of it and driven it, or if it had been damaged in any way, or if it had been driven by the appellant or its staff for any material distance, other than for demonstration.
13. The justices rejected a submission of no case on these two informations. As to the first information, the submission was that the advertisement referred to no specific vehicle as being new, and so could not constitute a false trade description. As to the second information, it was submitted that a new vehicle could include a pre-registered vehicle.
14. The justices considered that the word "apply" in section 1(1)(a) of the 1968 Act could include a general newspaper advertisement that did not include specific goods. They later convicted the appellant on the first information and the case says that they found the advertisement was misleading and therefore conveyed a false trade description, as it implied that you could go to the appellant and drive away a new Fiat, whereas it was only possible to purchase a pre-registered Fiat at the price advertised.
15. As to the second information, the justices accepted Mr Rhodes' evidence that he felt he was being offered a brand new car. He had not, however, given evidence that Mr Coleman had so described it. He had referred to a "new vehicle", but not to a "brand new vehicle".
16. The justices' reasons for convicting on the second information included the following:

"In relation to the second allegation, a motor vehicle had been supplied to which a trade description had been applied by describing it as new, whereas the vehicle purchased by Mr. Rhodes was in fact pre-registered.

We were referred to the case of R v Anderson (Kenneth) [1988]R.T.R.260. It was a question of fact for us to decide whether the vehicle supplied was new for the purposes of the Trade Descriptions Act 1968. As in that case we felt that the word 'new' could be given different interpretations depending on how it was used. We felt that as Mr Rhodes had told Mr Coleman that he wanted to purchase a new car the fact that he later found that the car was pre-registered was misleading, in spite of the fact that neither witness had referred to the word 'brand' in their evidence."

The justices imposed fines of £3,000 and £3,500 on the two informations respectively and ordered the appellant to pay costs of £1,372.

17. The questions stated for the opinion of this court, in the case, are:

"1. In respect of the first allegation, whether as a matter of law for the purposes of Section 1(1)(a) of the Trade Description Act 1968 a description in a newspaper advertisement, which does not specify that it applies to any specific vehicle or vehicles, can apply a trade description to a specific vehicle which forms part of a motor vehicle dealer's stock?

2. Further in respect of the first allegation, whether as a matter of law a vehicle which is pre-registered can be described as a new vehicle for the purposes of the Trade Descriptions Act 1968?

3. If so, whether there was sufficient evidence upon which we could convict the appellant in respect of the first allegation?

4. In respect of the second allegation, whether as a matter of law, for the purposes of [Section 1(1)(b)] of the Trade Descriptions Act 1968 a vehicle can be supplied as brand new even though it is pre-registered?

5. If so whether there was sufficient evidence upon which we could convict the appellant in respect of the second allegation."

18. It will be observed that the fourth question is framed in terms of a trade description that used the expression "brand new", although the evidence did not sustain a finding to that effect, nor did the justices in fact so find in the body of the case. Hence the second application which is before the court, which is for the court to remit the case for amendment.
19. Evidence before the court from the appellant's solicitors recorded the fact or belief that the decision of the justices, as pronounced in court, was based on an explicit finding that the description "brand new" had been used when Mr Rhodes' evidence did not say that it had. That this was the basis of the decision, appears to be supported by a pronouncement form, which this court has, which records a finding that Mr Rhodes had stated that Mr Coleman said that he could not do a deal because the car was a brand new vehicle. On this basis, the form records "find the company guilty".
20. The submission to this court is that, because this was not Mr Rhodes' evidence, the appellant appears to have been convicted on the second information on a wrong basis. The substance of the application for remission is that the justices should be invited to own up to the fact that they convicted on a wrong evidential basis. In my judgment, it is both disproportionate and unnecessary to remit the case. This court is properly able to determine the appeal, in my view, without doing so.
21. The ground of appeal on the first information is simply that an advertisement which is unspecific as to the vehicle cannot be a false trade description. Put in those terms, the proposition is too wide, as is illustrated by the decision of a division of this court in Rees v Munday [1974] 1 WLR 1284. That was a decision about time limits. There had been an advertisement in that case, which is described in the judgment of the Lord Chief Justice, Lord Widgery, at page 1287 in these terms:

"On October 29, 1971, the defendant advertised in a motor trade journal, 'Commercial Motor,' that he had for sale a Bedford goods vehicle, which was 'in first class condition throughout.' In the same advertisement was the reference to it being of '12 yard' capacity."

22. In the course of the Lord Chief Justice's judgment, at page 1289F he said this:

"But one cannot get away from the fact, I think, that when the advertisement was published there was only one lorry of that description in the seller's possession, and I think that the description was applied to that lorry when the advertisement itself was published. I think that is an example of the trade description being used in a manner likely to be taken as referring to the goods because if there was only one lorry of that description, that fact would indicate to anybody that the trade description applied to that one vehicle."

23. In the present case, the first information refers to the 22nd June 2006, the date of the advertisement. So we are only concerned with the advertisement itself. As is pointed out, the terms of the advertisement are unspecific as to the motor car.
24. On that date, and indeed 3 days later, there was a new Fiat Punto ST Active in the foyer, which Mr Rhodes was shown and which he drove. The trade description could not be taken as referring only to the pre-registered vehicle which Mr Rhodes eventually purchased, and it was not false or misleading for that reason. Indeed, the difficulty appears to have arisen, because, having been shown a new Fiat Punto ST Active, negotiations then took place in relation to the purchase of a different one.
25. The justices' finding that a new Fiat Punto could not be bought from the appellant at the advertised price relies on subsequent events which do not, on the facts, in my judgment, convert an unspecific advertisement into a specific and false one. In addition, the price in the advertisement was not, as Mr Beglan accepts, part of the trade description, nor, on the facts of this case, did it go to identify a particular motor car. For these reasons, in my judgment, the ground of appeal succeeds and I would quash the conviction on the first information.
26. As to the second information, the case of Anderson, to which the justices referred, concerns several counts under section 1 of the 1968 Act, where the description "new" had been applied to vehicles which had been pre-registered in the name of the managing director of the appellant. There is a discussion in the judgment of Waterhouse J in that case of circumstances in which a car might properly be described as "new". The court held, in that case, that it was a question of fact for the jury to decide whether a description of a previously registered motor car as "new" was a false description within the meaning of the 1968 Act.
27. The word "new" is susceptible to a variety of interpretations, depending on the context and bearing in mind the definition of a false trade description in section 3 of the Act. However, in the present case the information did not allege that the appellant had supplied a vehicle, describing it as new. It alleged that they had described it as "brand new" which, on the evidence, and as found in the case, they had not.
28. The question therefore was, or should have been, whether it was open to the justices to convict on the basis only that the vehicle had been described as new. That question, in my judgment, turns on whether the addition of the word "brand" to the adjective "new" was material, for if it was, the prosecution would have failed to establish a material element of the information and an acquittal should follow.
29. In my judgment, there was, in the context of this case, a material difference between describing a vehicle as "brand new" and describing it merely as "new". A pre-registered vehicle could not, in my judgment, properly be described as "brand new", but as Anderson shows, it would be open to serious argument on the facts, depending what they were, whether it was a false description to say of a pre-registered car that it was "new". For instance, a pre-registered car may never have been on the road and it might at least be arguable that a reduced warranty period alone did not necessarily mean that the car itself was not new.
30. It appears also that the use of the expression "brand new" in the information affected the way in which the defence case was put. The defence case no doubt was that the expression "brand new" was not used and, understandably, the evidence does not appear to have concentrated on the extent to which, factually, it could properly be said that the pre-registered car was not properly described as new.
31. Mr Beglan submits that there may be circumstances in which errors in an information which were not amended at the time could nevertheless result in upholding a conviction in this court. That may be so in circumstances where the terms of the information and the error in the information were not material, as, for instance, where a date was misstated, but the date did not really matter to the substance of what was alleged.
32. As I read his written submissions, and his oral submissions touched on this as well, Mr Beglan went part way to suggesting that the evidence in this case might have justified a finding that the vehicle which Mr Rhodes bought had been described as "brand new", despite the fact that those words were not established to have been applied by way of description to the motor car in question. But the case was not so found and the recital of Mr Rhodes' evidence does not, in my judgment, justify such a finding.
33. Mr Beglan further submits that all parties agreed that it was open to the justices to hold that the application of the description "new" to a pre-registered car was capable of amounting to an offence. It may be, but that is not what the information charged.
34. In my judgment, therefore, the information charging as it did a description containing the words "brand new", and the prosecution evidence not succeeding in establishing that that description had been applied, the only conclusion the justices could properly have come to was that the information was not proved and the appellant should have been acquitted on it. For these reasons, I would allow the appeal on the second information as well and quash that conviction also.
35. MR JUSTICE SIMON: I agree.
36. SIR ANTHONY MAY: Yes?
37. MR CAMERON: Can I ask your Lordships to make a defendant's costs order under section 16 of the Prosecution of Offences Act?
38. MR JUSTICE SIMON: Are you asking for a specific sum?
39. MR CAMERON: No, a defendant's costs order would usually be taxed, my Lord.
40. SIR ANTHONY MAY: Yes, we will make that order. Thank you very much. Is there anything else?
41. MR CAMERON: No, thank you.
42. MR BEGLAN: My Lord, very briefly, only the issue in relation to whether or not the case should go back to the magistrates to be re-heard. I take it from your Lordships' observations earlier that that is thought to be disproportionate, but my instructions are to try and retain that as a way of proceeding. Those behind me have not made a decision on the matter one way or another as yet.
43. SIR ANTHONY MAY: You would like to have the opportunity of having another go?
44. MR BEGLAN: Yes.
45. SIR ANTHONY MAY: My understanding of our decision is that we have decided that the magistrates ought to have acquitted. I do not think that leaves open the possibility of having another go.
46. MR BEGLAN: My Lords, I have made the submission. I will leave it there.
47. SIR ANTHONY MAY: Thank you very much.