CH 1998 L No 4289 |
CHANCERY DIVISION
Strand, London, WC2A 2LL | ||
B e f o r e :
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Leeds City Council | Claimant | |
- and - | | |
(1) James Stuart Watkins (2) Derek Whiteley | Defendants |
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Mr Clive Freedman QC and Mr Hugh Mercer (instructed by Levi & Co) for the Defendants
Hearing dates : 18 to 21 February 2003 and 24, 25 and 28 February 2003 and 3 March 2003
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Crown Copyright ©
Mr Justice Peter Smith:
INTRODUCTION
FACTUAL BACKGROUND
THE COUNCIL'S RIGHTS
THE DEFENDANTS ACTIONS
THE COUNCIL'S RIGHTS
"116. If any person shall without the licence of the Corporation on any land belonging or reputed to belong to or occupied by him in any part of the City hold or permit to be held any market he shall be liable to a penalty not exceeding £50.00 and to a daily penalty not exceeding £5.00."
MARKET RIGHTS
i. A market franchise gives the holder the sole and exclusive right to hold markets within certain limits. As a necessary incident of its franchise rights the holder of a market franchise enjoys a right of protection from disturbance by a rival market within 6 ? miles. If the disturbance is likely to continue it may be restrained by injunction, see Pease & Chitty pp3, 15, 69 - 71.
ii. When statutory markets have been established under the 1905 Act all the instances of the common law market are incidents of a statutory market except in so far as they may be varied or taken away by the relevant statute, see Birmingham City Corporation –v- Perry Barr Stadium [1972] 1 All ER 725 at page 728G.
iii. The common law distance for an action of disturbance is to establish a new one within 6 ? miles of the owner's existing market see Pease & Chitty pages 69-72.
iv. Where a local authority is the market owner it is entitled to seek to restrain a rival market outside its own area provided that such rival market operates within the common law distance, see Halton BC –v- Cawley [1985] 1 WLR 15 at 19E and 21B.
v. A car boot sale is a market, in that there is a provision of facilities for a concourse of buyers and sellers, see Newcastle City Council –v- Noble [1991] 89 LGR 618.
vi. There is an irrebuttable presumption of damage in the case of a same day rival market, within the common law distance; and that the new market is a nuisance to the old and no proof of damage is required, see Sevenoaks District Council –v-Pattullo [1984] 1Ch 211.
OBJECTION TO RELIEF
THE COMPETITION LAW DEFENCES
"Article 81
1. The following shall be prohibited as incompatible with the Common Market: all agreements between undertakings, decisions by association of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention restriction or distortion of competition within the Common Market and in particular those which
(a) Directly or indirectly fix purchase or selling prices or any other trading conditions;
(b) Limit or control production, markets, technical development or investment;
(c) Share markets or sources of supply;
(d) Apply dissimilar conditions to equivalent transactions with other trading parties thereby placing them at a competitive disadvantage;
(e) Make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations, which by their nature, or according to commercial usage have no connection with the subject of such contracts
Article 82
Any abuse by one or more undertakings of a dominant position within the Common Market or any substantial part of it shall be prohibited as incompatible with the Common Market in so far as it may affect trade between Member States. Such abuse may, in particular, consist in:-
(a) Directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
(b) Limiting production, markets or technical development to the prejudice of consumers
(c) Applying dissimilar conditions to equivalent transactions with other trading parties thereby placing them at a competitive disadvantage
(d) Making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which by their nature or according to commercial use have no connection with the subject of such contracts "
"2. Agreements etc preventing restricting or distorting competition(1) Subject to section 3 agreements between undertakings decisions by associations of undertakings or concerted practices which:-(a) May affect trade within the United Kingdom, and(b) Have as their object or effect the prevention restriction or distortion of competition within the United Kingdom are prohibited…
(2) Subsection (1) applies in particular to agreements decisions or practices which
(a) Directly or indirectly fix purchase or selling prices or any other trading conditions(b) Limit or control production markets technical developments or investment
(c) Share markets or source of supply
(d) Apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage
(e) Make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which by their nature or according to commercial usage have no connection with the subject of such contracts ".
"18 Abuse of dominant position(1) Subject to section 19 any conduct on the parts of one or more undertakings, which amounts to the abuse of a dominant position in a market is prohibited if it may affect trade within the United Kingdom.
(2) Conduct may in particular constitute such abuse if it consists in
(a) Directly or indirectly imposing unfair purchase or selling price or other unfair trading conditions;(b) Limiting production in markets or technical development to the prejudice of consumers
(c) Applying dissimilar conditions to equivalent transactions with other trading parties thereby placing them at a competitive disadvantage
(d) Making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which by there nature or according to commercial usage have no connection with the subject of the contracts"
REVIEW OF COUNCIL'S APPROACH
CONCLUSIONS AS REGARDS THE EVIDENCE
NABMA
THE DEFENDANTS CONTENTIONS ABOUT NABMA
THE EXPERT EVIDENCE GENERALLY
High street shops which operate on a much higher cost are less inclined to sell unknown brands and seconds (unless they specialise in them) because profitability would be adversely affected by such low margins and it would be out of line with there normal position (being somewhat upmarket of the market stall)".
COLLUSION
THE MARKETS
DR BISHOP'S EVIDENCE