Dacre Son & Hartley Ltd. v North Yorkshire Trading Standards

MR JUSTICE FULFORD:

On 2nd December 2003 the appellant, Dacre Son & Hartley Limited, was convicted by the Skipton Justices of two offences under section 1 of the Property Misdescriptions Act 1991. A third information was dismissed. The appellant was fined £1,000 on each of the two informations that resulted in convictions and was ordered to pay costs of £1,390. The offences were alleged to have been committed on 28th August 2002 and 4th September 2002 respectively, and the proceedings were initiated against the appellant by way of summons.

The issues raised on this appeal and brought before this court by way of case stated concern the adequacy of the two informations, together with the sufficiency of the evidence presented to the court below in support of them. The appellant argues that the informations laid by the respondents were defective and the defects were incapable of proper rectification during the trial process. Moreover, it is submitted that a submission of no case to answer should have been upheld at the close of the prosecution case.

The facts relevant to this appeal as set out hereafter are taken from the findings of the Justices. The appellant was the agent with conduct of the sale of premises at 9 Riverside Walk, Airton, North Yorkshire ("the property") between April and September of 2002 on behalf of the vendor.

Between June and August of 2002 Mrs Ainsworth Hickman negotiated for the purchase of the property and, although she had noticed some dampness in the dining room, an offer from her was accepted by the vendor in June. Thereafter she became aware that serious damp affected the property when she visited it with a builder, and it was in due course revealed that there had been movement to the floor at the rear of the property. Mrs Ainsworth Hickman received a timber and damp report from the appellant dated 2nd August 2001, and shortly afterwards she commissioned an independent specialist report.

Mrs Hickman launched an unsuccessful attempt on the basis of those reports to renegotiate the purchase price downwards. Following a failure to agree on a lower figure she withdrew from the sale. Subsequently she faxed a copy of her own report to the appellant during August 2002 in which it was indicated that damp treatment costing in the region of £4,700 was necessary. The property remained on the market and the appellant continued to act as agent on behalf of the vendor.

On 28th August 2002 Mrs Hickman, acting on certain suspicions she had about the marketing of the property, went to a branch office of the appellant in Skipton together with a friend of hers, Ms Dear. They pretended to be potential purchasers, and in the course of answering questions about the property, Miss Cuerden, an employee of the appellant firm, stated it did not suffer from dampness. This statement was the subject of the summons alleging that the appellant made a false statement contrary to section 1(1) of the Property Misdescriptions Act 1991.

On 4th September 2002 Mrs Hickman and Ms Dear returned and asked Miss Cuerden various specific questions about dampness at the property, and particularly if any remedial works might have to be undertaken by a purchaser. They secretly recorded this conversation. Miss Cuerden failed to reveal the full extent of the dampness at the property and her dissembling, as the prosecution described it, amounted to a misleading statement in the nature of an omission contrary to section 1(1) of the Property Misdescriptions Act 1991 within the meaning ascribed to the word "misleading" by section 1(5).

During the discussion on 4th September Miss Cuerden said inter alia the following:

She went on to add that she was not an expert and that a certain amount of work in all probability needed to be done to the window frames of the property.

Prior to trial, and in conformity with Rule 4(1)(a) of the Magistrates' Courts (Advance Information) Rules 1985, the respondent furnished the appellant with a copy of the written witness statements that the prosecution proposed to rely on at trial. The statement of Mrs Ainsworth Hickman included the following:

It was the respondent's case at trial that the statements of Miss Cuerden, as recalled and recorded by Mrs Hickman, were as set out above - in the first instance false and in the second instance misleading. They contended that the material demonstrated that the staff of the appellant, and particularly Miss Cuerden, had knowledge of the existence and extent of damp at the property, thereby negating any potential due diligence defence under section 2 of the 1991 Act.

Miss Hickman gave evidence at trial broadly in conformity with her witness statement, and her account was corroborated by Ms Dear. The senior partner of Dacre Son & Hartley, Mr Gee, gave evidence, as did Miss Cuerden. The latter accepted that it was her voice on the tape of 4th September, and she was unable to explain why she said the last sale had fallen through for personal reasons rather than because of the presence of damp. She maintained she was not qualified to comment on the state of the property. Mr Gee, whilst accepting that estate agents should be honest and should not mislead, emphasised the obligation that rests, as he described it, on a potential purchaser to make their own inquiries.

It is convenient at this stage to set out the terms of the two informations. They were both laid against the defendant Dacre Son & Hartley Limited, and were in the following terms:

(i) On 28th August 2002 at Skipton:

(ii) On 4th September 2002 at Skipton:

At the close of the respondent's case the appellants submitted there was no case to answer because the informations did not comply with the requirements of Rule 100 of the Magistrates' Court Rules 1991 in that: (i) they did not state who had made the false or misleading statements or where those statements were made; (ii) they did not state to whom the false or misleading statements were made; and (iii) they did not particularise the false or misleading statements. Those submissions were rejected and at the end of the evidence the appellant additionally argued that there was no, or alternatively insufficient, evidence to prove these two informations.

The relevant conclusions of the justices were as follows:

The questions formulated in the case stated for our consideration are as follows:

Section 1 of the Property Misdescriptions Act 1991 creates two offences of property misdescription and deals with a significant social evil: it is directed at the problem of potential purchasers being materially misled as to the condition of premises marketed by estate agents or property development businesses. Section 1 is in the following terms:

As regards (d), it is accepted in this case that representations about dampness in a property come within that subsection. Under Article 2 s.7 of the Schedule to the Property Misdescriptions (Specified Matters) Order 1992 a prescribed matter within section 1 of the Act includes “physical or structural characteristics, form of construction or condition”.

Section 1(1) contains the following notable features: firstly, liability attaches to the person by whom the business is carried on, rather than the maker of the statement if the two are different; secondly, there is no requirement that either person (the maker of the statement or the person by whom the business is carried on) should know the statement is false or misleading, or that they were reckless as to whether it was false or misleading; thirdly, it is not an ingredient of the offence that the person to whom the statement was made was in any way misled. Further, by virtue of subsections (1) and (2) the "person by whom the business is carried on" or an employee or both can be prosecuted. Here the prosecution was of the firm only. It follows the offence is committed regardless of its impact, if any, on one or more members of the public, and omission can constitute a misleading statement. A defendant is entitled to raise, under section 2 of the Act, the defence "that he took all reasonable steps and exercised all due diligence to avoid committing the offence".

The general provisions relating to the laying of an information are to be found in Rules 4 and 100 of the Magistrates' Court Rules 1981. It is Rule 100 that is relevant to this appeal. Under subsection (1) the following is provided:

Section 123 of the Magistrates' Court Act 1980 provides:

I interpolate to observe that there is a wealth of authority to the effect that section 123(1) should not be read literally as meaning there can never be a challenge to an information, however serious the defect; it all depends on whether the justice of the situation requires an amendment: see Halsbury's Laws, volume 27, page 205, and the notes to section 123.

It is submitted by the appellant that the particulars contained within the informations were fatally deficient because they did not state who was alleged to have made the false statements or to whom they were made, and generally they did not provide sufficient detail of the case the appellant had to meet. Additionally, as regards the information for 4th September, it is argued that it was not clear whether it was the failure to mention damp or the suggestion the last sale fell through for personal reasons that founded the misleading statement.

It is submitted therefore that the appellant was not given adequate information as to the detail of the charges. Moreover, it is argued that since damp as an issue was mentioned during these conversations, and given “personal reasons” could have covered "a multitude of reasons", and including the fact that the seller and purchaser were unable to agree a price which reflected the work required on an old property, anything said by Miss Cuerden was incapable of misleading a reasonable person so as to constitute an offence.

Finally, it is submitted that there is a similarity, at least in part, between the provisions of section 1(1) of the Property Misdescriptions Act 1991 and the protection provided to purchasers of residential and commercial property under the Trade Descriptions Act 1968 and that in the result the requirements of specificity as regards informations preferred under both statutes are broadly the same. I shall consider each of those arguments in the context of the questions posed by the justices to which I now turn.

First, were the justices correct in deciding that if a challenge is made to the validity of an information at the close of the prosecution's case, they are entitled to have regard both to the evidence heard up to that point and to the material supplied by way of advance information in deciding whether or not to uphold a submission of "no case to answer"? I observe at the outset that I am surprised at both the timing of the first suggestion that the informations were not sufficiently particularised and the circumstances in which the point was taken, namely, during a submission of no case to answer. These are both issues I have dealt with at the end of this judgment in the context of certain general remarks.

In answering this first question, in my view the critical issue for a court to determine when considering alleged defects of the kind complained of here, is whether the information as framed created real unfairness. Put otherwise, was the appellant misled or otherwise prejudiced by its wording? In deciding that issue, the justices are undoubtedly entitled to look at relevant extraneous material in order to determine whether such unfairness had arisen.

In this case the advance information, and in particular the part of the statement of Miss Ainsworth Hickman, quoted in extenso above, made the prosecution's case clear beyond doubt as regards both 28th August and 4th September. The particular false or misleading representations were fully revealed, as was the author of them. This case concerned damp and the representations made about it, and the reasons for the proposed sale falling through were directly related to that issue. The appellant could have been in no doubt, following receipt of that material, as to the case the prosecution intended to advance. Moreover, the evidence presented at trial was in conformity with the advance information, and therefore merely confirmed the detail of the case the appellant had to meet. It is right to observe that if critical aspects of the prosecution case that should have been revealed within the information or informations in advance of the trial become clear for the first time during the trial, then the position might well be different, and could lead to a conclusion that real unfairness had been created. In my view that was not the case here. Accordingly, I answer both (a) and (b) in the first question in the affirmative.

Turning to the second question - whether the justices were entitled to decide that each of the informations complied in the circumstances with Rule 100 of the Magistrates' Rules 1981 - the following matters, in clear language, were set out in both informations: (i) the relevant statutory provision, namely section 1(1) of the Property Misdescriptions Act 1981; (ii) the date of the alleged offence, 28th August and 4th September respectively; (iii) the place where it occurred, Skipton; (iv) core details of the false or misleading information (representations about the lack of damp at the particular property); (v) the premises the representations concerned (9 Riverside Walk, Airton); and (vi) (within the first information) the material that revealed the representations were false or misleading, namely the reports of 31st July 2001 and 2nd August 2001.

Those details, for the purposes of the Rule, sufficiently set out all of the matters that needed to be rehearsed in the two informations and including the elements of the offence and sufficient particulars of them. It is arguable that as a counsel of perfection the name of the employee who made the representations on both occasions, if it had been known at the time, could have been included, but that omission, if such it was, could not in any sense be fatal in this case, not least because it was the business and not the employee who was the subject of the information (the prosecution having proceeded under section 1(1) rather than (2)). In any event, the most cursory enquiries by the applicant would have made it clear that Miss Cuerden was the relevant employee on both occasions.

I have found the comparisons which the appellant has sought to draw with prosecutions under the Trade Descriptions Act unhelpful. The detail required in an information is both offence and fact dependent. A decision as to the adequacy of the particulars will depend on the precise nature of the offence that has been charged and the factual allegations upon which that charge depends.

Finally as regards this second question, we have been taken to the case of George Wimpey UK Ltd [2003] SCC R 330, a Scottish authority in which this section of the 1991 Act was the subject of consideration by the Appeal Court of the High Court of Justiciary in Scotland. In that case the court was invited by a late amendment to widen the ambit of the offence the appellants had to meet, so that they could be convicted of an offence with which they had not originally been charged. On the particular facts of that case, the Court of Appeal found that it would be wrong in principle for the court at first instance to convict, or the Court of Appeal to substitute verdicts, on the basis of the proposed expanded charge. That authority, therefore, is wholly different on its facts from the instant appeal and consequently is of no assistance.

In my judgment, the informations each described the specific offence charged in ordinary language and gave sufficient particulars so that the appellant was provided with reasonable understanding of the nature and detail of the charges. Therefore, the prosecution correctly did not apply to amend when these submissions were made at the end of their case. In the premises I answer the second question in the affirmative.

Finally, I turn to the last question: were the justices correct in deciding that there was sufficient evidence to convict the appellant on these two informations? For both offences there was clear -- indeed strong -- evidence against the appellant. Given these are offences of strict liability, and absent any findings favourable to the appellant of due diligence, once the Justices accepted the evidence of Mrs Ainsworth Hickman, convictions were an inevitability. On the evidence it was open to the justices to find that statements made about a "prescribed matter" in the course of an estate agency business were false as regards the first information and misleading as regards the second, and that the business was carried on by the appellant. In those circumstances, I answer the third question in the affirmative.

Earlier in this judgment I expressed my surprise at both the timing of the first suggestion by the appellant that the informations were not sufficiently particularised and the circumstances in which the point was taken: midway through the trial as part of a submission of no case to answer. If a defendant considers that the particulars provided in an information are insufficient the court has the power, at any time after the charge has been preferred, to require the prosecution to furnish him with better and more complete particulars: see R v Aylesbury Justices, Ex parte Wisbey [1965] 1 All ER 602.

In my view, if a defendant genuinely considers that lack of particularity in the information (as opposed, for instance, to a defect inherently fatal to the charge) has created the potential for unfairness e.g. because of uncertainty as to the case the defendant has to meet -- this should usually be raised in advance of the trial, so that the court can consider the position. Deliberately deferring the issue until midway through the trial will usually make it materially more difficult for the defendant to complain that the trial is unfair.

I accept the submission of the respondent that the appellant "elected to remain ill-informed", and I would add, unreasonably so. Furthermore, a submission of no case to answer is conventionally the means by which the court tests whether the prosecution has advanced sufficient evidence to found a conviction, rather than providing a forum for a discussion about the adequacy of the particulars contained in the information or informations. Although there may be a measure of overlap between the two types of hearing, if the true issue is alleged unfairness caused by lack of particularity, a submission of no case to answer is not the appropriate way of raising such a complaint. Any genuine concerns of this kind should usually be raised with the court far earlier.

In all the circumstances I find that the Justices' approach to this case was faultless and any arguments to the contrary are bound to fail. I would therefore dismiss this appeal.

LORD JUSTICE THOMAS: I agree.

MR GOODMAN: My Lord, the respondent seeks costs against the appellant. My Lord, by section 17(2) of the Prosecution of Offences Act 1985, an order cannot be made in favour of a public authority out of central funds and I am obliged to seek my costs against the appellant.

I am asked to make the following points in respect of quantum. Under section of that Act your Lordship has to consider what amounts to award on the basis of -- you have to decide whether or not the appellant can afford to pay. My Lord, can I hand up --

LORD JUSTICE THOMAS: Is there any doubt about their means of being able to pay?

MR GOODMAN: My Lord, no.

LORD JUSTICE THOMAS: One would assume a chain of estate agents would be able to pay the costs of this matter but I may be wrong.

MR GOODMAN: As a result of that I have to invite you to specify a figure, and can I hand up a copy? (Handed).

LORD JUSTICE THOMAS: Has Mr Hanbury seen these?

MR GOODMAN: No, he has not. The only surprising feature --

LORD JUSTICE THOMAS: Can we look at them? But I have every sympathy with counsel, presented with a bill --

MR GOODMAN: Although I anticipate that, short of counsel fees, I would respectfully submit that the only surprise on the face of the bill is it is remarkable modest, and, my Lord, in my respectful submission, I seek the amount as drawn.

LORD JUSTICE THOMAS: What is the first bit of this? I do not quite follow your bill.

MR GOODMAN: The first is the pre-hearing costs.

LORD JUSTICE THOMAS: But the counsel's draft of preparation -- the bulk of this is yours.

MR GOODMAN: By far the bulk of it is.

LORD JUSTICE THOMAS: Counsel drafting preparation of skeleton, £3,200, and counsel £2,500. So £5,700 out of £6,500 is yours and the rest is your solicitors'.

MR GOODMAN: Yes. I am invited to submit that the County Council Trade Service department does not enjoy any funding status, unlike the Crown Prosecution Service, and it follows that every pound spent on investigating and prosecuting is a pound that the County Council has to spend in providing services.

LORD JUSTICE THOMAS: To the ratepayers, et cetera. Very well. Mr Hanbury, do you want a minute or two to discuss this? I deprecate what has happened. There is absolutely no reason why this should not have been provided last night to you, but do you want any time?

MR HANBURY: I do not think I need time as such, but I do submit that under the Costs Practice Direction, which I do not seem to have with me, the court should always mark the failure to serve the schedule in time appropriately, and in this case should disallow a proportion of the costs.

LORD JUSTICE THOMAS: Looking at this, I assume Mr Venn has had to come down from wherever, and that is why 8 hours is here. Is that right?

MR GOODMAN: My Lord, yes.

LORD JUSTICE THOMAS: Was this prepared on the assumption you would be here until 4.00 pm?

MR GOODMAN: My Lord, on the assumption it was more than half a day.

LORD JUSTICE THOMAS: You will be on the way back soon. Where does he go back to?

MR GOODMAN: Northallerton.

LORD JUSTICE THOMAS: How long does that take?

MR GOODMAN: Two hours to York and then a further hour.

LORD JUSTICE THOMAS: So if he catches, say, a train at 2.00, he will be back at 5.00. So what you are saying is he had to come down last night.

MR GOODMAN: Yes.

LORD JUSTICE THOMAS: I just wanted to see that.

MR GOODMAN: I have not seen any comparable schedule from my learned friend.

MR JUSTICE FULFORD: One has been served on us.

LORD JUSTICE THOMAS: Yes, I have seen it. Where is it?

MR JUSTICE FULFORD: How do the figures compare, Mr Hanbury?

MR HANBURY: These are lower.

LORD JUSTICE THOMAS: I do not think your solicitors' costs are lower, are they?

MR HANBURY: I do not think they are lower, but they have had to do a great deal of work.

LORD JUSTICE THOMAS: But the hourly rate on this is very modest.

MR JUSTICE FULFORD: Are you slightly less expensive, Mr Hanbury?

MR HANBURY: Yes.

LORD JUSTICE THOMAS: One is in Leeds and one is in London. Is that the difference? Why should you have a Leeds rate for the job?

MR HANBURY: Counsel fees are not based on rate subsidies.

LORD JUSTICE THOMAS: No, but why should we pay someone for using London counsel more than we should pay them for using Leeds counsel on a case which is perfectly capable of being done in Yorkshire? So far as someone here in London charges more, as this is a Yorkshire case why should we pay them more?

MR HANBURY: Especially as my fee includes the travel expenses as well.

LORD JUSTICE THOMAS: Where is your fee?

MR HANBURY: On page 2, counsel's fees, work on advice, conferences and documents, and then fee for the hearing.

LORD JUSTICE THOMAS: I cannot find page 2. I know what has happened. Someone has forgotten to photocopy the back. So what is your fee?

MR HANBURY: It is £2,000, plus VAT.

LORD JUSTICE THOMAS: What is your fee?

MR HANBURY: £2,000 plus VAT.

MR GOODMAN: The different between us is less than that. I am charged out at £5,700 and my learned friend is charged out at £4,600.

LORD JUSTICE THOMAS: So what do you want us to do? The solicitors' fees you cannot really complain of, because they are not very large. Have a look at them. Do you want us to rise for a couple of minutes while you have a chat? I would rather sort this out.

LORD JUSTICE THOMAS: Have you agreed it or do you want us to adjudicate on this weighty matter?

MR HANBURY: I do not think it is going to detain you for very long. My submission is that in relation to counsel's fees, obviously, as appellant I would have had to do a great deal more work, and in my view it does effectively reflect travel expenses.

MR JUSTICE FULFORD: I am not sure whether Mr Goodman would agree about the amount of work, given the length of Mr Goodman's skeleton argument.

MR HANBURY: I had to draft an appellant's notice as well. There is no respondent's notice. The guidance from the court's own guide, which my solicitor has produced, Guidelines for Summary Assessment 2003, suggests that for the Administrative Court for juniors of 10 years plus call, the appropriate rate for a half day hearing is £1,500.

LORD JUSTICE THOMAS: How long was this down for?

MR JUSTICE FULFORD: Half a day.

MR HANBURY: In the light of the fact that they failed to serve their schedule as they were required to do --

LORD JUSTICE THOMAS: Is it realistic to say that we should only -- in fact, if this was the guidance that is in there, the ratepayers whose regard we must have of North Yorkshire are paying over the odds? Is that right?

MR HANBURY: They can choose to pay over the odds if they want. I am sure some barristers cost more than my learned friend.

LORD JUSTICE THOMAS: You say we should give £1,500, is that all?

MR HANBURY: That is what the court's own guidance appears to say.

LORD JUSTICE THOMAS: Including preparation of the skeleton argument?

MR HANBURY: I think the skeleton argument should technically be included, but I am not making a point about that. I accept that the paperwork has been dealt with separately by my learned friend.

LORD JUSTICE THOMAS: We have the point. Either it is your fee or it is below your fee or it should be somewhere near his fee.

MR JUSTICE FULFORD: What about the solicitors' costs?

MR HANBURY: The solicitors' costs I cannot take issue with.

LORD JUSTICE THOMAS: Those total what?

MR HANBURY: They total -- let me have a look. I will just add them up.

LORD JUSTICE THOMAS: If we were to say something along the lines of you have the solicitors' fee in full, and what we agree about counsel's fee, can you do the maths because we are bound to get it wrong.

MR HANBURY: The solicitor's part is £235.20 and I think there is no VAT.

LORD JUSTICE THOMAS: So £235.20 and something for counsel.

MR HANBURY: Something for counsel's. The claim for drafting is £3216.56; is that including VAT? That is including VAT, I think, and then the fee of the counsel is £2,500. So technically the fee of £2,500 is just for the attendance today.

LORD JUSTICE THOMAS: There is no VAT in any of this, is there?

MR GOODMAN: No, it is all recoverable liability because it is a public authority.

LORD JUSTICE THOMAS: Interesting. The costs below were dealt with by the magistrates, I assume.

MR GOODMAN: My Lord, yes.

LORD JUSTICE THOMAS: We think we would order, taking a round figure sum, £4,800.

MR JUSTICE FULFORD: Can I thank you both for having sent your skeletons through by way of email. It is enormously helpful.

LORD JUSTICE THOMAS: Is there anything further? May we thank you both very much and wish one of you a speedy journey back to Leeds and the other to Northallerton. Thank you very much.