The Weekly Law Reports, November 5, 1976

1052
[1976]

A
[COURT O F APPEAL]

* R E G I N A v. B A R N S L E Y M E T R O P O L I T A N B O R O U G H C O U N C I L , Ex parte H O O K [DC/4/75] 1976 Feb. 20 Lord Denning M.R., Scarman L J . and Sir John Pennycuick
B

MarketRight to tradeTermination of licenceLocal authority terminating stallholder's licence to trade for trivial misconduct Officer acting as prosecutor present during appeal hearings by council committee in absence of stallholderWhether com- Q mittee acting administratively or judiciallyWhether decision void for want of natural justiceWhether prerogative order available to quash decision depriving stallholder of livelihood Barnsley Corporation Act 1969 (c. xi) In October 1974 the applicant, who was a stallholder in an ancient town market under an oral licence from the borough council, the owners, had his licence terminated by letter from j \ the market manager. His appeals to two council committees were dismissed without any specific reasons being given to him. He applied to the Divisional Court for an order of certiorari to quash the decision on the ground that there had been a denial of natural justice in that he had not been told what, if any, rule or practice of the market he was alleged to have breached; that the committee meetings had been held substantially in his absence; and that neither he nor his repre- g sentative had had an opportunity to hear or question the evidence, if any, on which the market manager's decision had been confirmed. He set out in his statement the conduct in respect of which the market manager had banned him, namely, that at about 6.30 p.m. after the market had closed and the public lavatories were locked he had been seen urinating in a side street by two council sweepers; that words had been exchanged which had been overheard by a council security p officer who had reported the incident to the market manager; and that the next day the market manager by letter terminated his licence at a few days' notice. The market manager's affidavit evidence was that he had done so because of the abuse of his staff and not because of the urinating. The Divisional Court dismissed the application on the ground that the council's decision was administrative and within its powers. On the applicant's appeal, the court received further Q evidence, including the Barnsley Corporation Act 1969 and byelaws made under the Act which contained no express provisions about, inter alia, the determination or revocation of a stallholder's licence or the terms on which it was held. The court of its own motion inquired into the common law rights of the public in an ancient market and into the evidence, which showed that the market manager had been present throughout the two appeal proceedings: JJ Held, allowing the appeal, that where the council was exercising its discretionary power under the Act of 1969 to regulate the common law public right to buy and sell in a market, it was not merely dealing with the contractual relationship but also with the common law right of a man to earn his living in the market; that in those circumstances it was under a duty to act judicially; and that the appeal hearings had been conducted in breach of the rules of natural justice because on the evidence the market manager, the prosecutor, was present

The Weekly Law Reports, November 5, 1976

1053 1 W.L.R. Reg. v. Barnslcy Council, Ex p. Hook (C.A.) A throughout the proceedings while the applicant was not; accordingly certiorari was the appropriate remedy to quash the decision, a fortiori where the punishment for trivial misconduct unconnected with the market was excessive. Decision of Divisional Court of the Queen's Bench Division reversed.
B

The following cases are referred to in the judgments: Attorney-General v. Colchester Corporation [1952] Ch. 586; [1952] 2 All E.R. 297. Cooper v. Wilson [1937] 2 K.B. 309; [1937] 2 All E.R. 726, C.A. H. K. (An Infant), In re [1967] 2 Q.B. 617; [1967] 2 W.L.R. 962; [1967] 1 All E.R. 226, D.C. London Corporation v. Lyons, Son & Co. (Fruit Brokers) Ltd. [1936] Ch. 78. Northampton Corporation v. Ward (1795) 2 Str. 1238. Reg. v. Gaming Board for Great Britain, Ex parte Benaim and Khaida [1970] 2 Q.B. 417; [1970] 2 W.L.R. 1009; [1970] 2 All E.R. 528, C.A. Reg. v. London County Council, Ex parte Akkersdyk, Ex parte Fermenia [1892] 1 Q.B. 190, D.C. Rex v. Electricity Commissioners, Ex parte London Electricity Joint Committee Ltd. [1924] 1 K.B. 177. Rex v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw [1952] 1 K.B. 338; [1952] 1 All E.R. 122, C.A. Yarmouth Corporation v. Groom (1862) 1 H. & C. 102. The following additional cases were cited in argument: Rendell v. Roman (1893) 9 T.L.R. 192, D.C. Ridge v. Baldwin [1964] A.C. 40; [1963] 2 W.L.R. 935; [1963] 2 All E.R. 66, H.L.(E.). Winter Garden Theatre (London) Ltd. v. Millennium Productions Ltd. [1948] A.C. 173; [1947] 2 All E.R. 331, H.L.(E.).

APPEAL from the Divisional Court of the Queen's Bench Division. The applicant, Harry Hook, of 9, Mexborough Drive, Leeds, who F carried on the business of market trader in the Barnsley market, applied to the Divisional Court (Lord Widgery C.J., Park and Stocker JJ.) for an order of certiorari to quash a decision made by the civic amenities committee of Barnsley Metropolitan Borough Council on October 30, 1974, that he be banned from trading in Barnsley market for the rest of his life. The grounds on which the relief was sought were (i) that there was a Q denial to the applicant of natural justice before the committee in that (a) he was not informed what, if any, rule or practice of the market it was alleged he had breached; (b) the meeting of the committee was convened in the absence of himself and of his representative, and lasted for about one hour before he and his representative were invited to attend; (c) he did not have the opportunity to hear or question the evidence, if any, on which die decision was based; and (d) neither he nor his representative H were permitted to question members of the committee; and (ii) the committee failed to act judicially in imposing the ban on the applicant in that another trader in the market had recently been reported to the market authorities for the same offence as was alleged against the applicant, that the other trader had committed the same offence some four times in all, but has not been banned from trading in the market; and that the disparity between the two decisions indicated that the market authorities failed to act judicially. VOL. 1 53 (1)

The Weekly Law Reports, November 5, 1976

1054
Reg. v. Barnsley Council, Ex p. Hook (C.A.) [1976]

The borough council, as respondents to the application, opposed the motion. They denied that there had been a denial of natural justice to the applicant at the meeting of the indoor services subcommittee of the amenity services committee of the council held on October 30, 1974, in that (a) on October 18, 1974, the council's market manager, Alan Fretwell, interviewed the applicant and informed him that a complaint had been received regarding certain conduct of the applicant on the evening of October 16, 1974; the applicant was given an opportunity of explaining his conduct and was subsequently informed by letter dated October 18, that he was no longer considered to be a suitable tenant and that his stalls and pitch would cease to be available to him after October 23; (b) the applicant was granted a right of appeal before the chairman and vice-chairman of the amenity services committee, the amenities and recreation officer, and the market manager on October 24, 1974, when the case was fully discussed with him and a union representative; and that the markets manager's decision was confirmed at that meeting; (c) the applicant was granted a further appeal before the indoor services subcommittee on October 30, when he was represented by his legal adviser and the union official, although he himself did not appear before the committee; that at that meeting, as the appeal was an additional item on the agenda of the subcommittee, other business was dealt with to enable the council's legal representative at the committee to peruse the papers before the subcommittee dealt with the appeal; a period of one hour elapsed before the applicant and his representatives were invited to appear before the subcommittee; the applicant's representatives were both given the opportunity of speaking on his behalf; the subcommittee discussed the representatives' case but decided to adhere to the original decision. With regard to the reference made in the applicant's statement to the conduct of the other trader, the council were unable to obtain sufficient evidence to support the complaints referred to and therefore decided to take no further action with regard to those complaints. They claimed, therefore, that they had acted judicially in both matters. The Divisional Court refused the order on May 14, 1975. The applicant appealed on the grounds that the court erred in finding that the decision of the market manager to terminate the applicant's licence to trade in the Barnsley market was administrative; that the court should have granted the order of certiorari; that the court erred in judging that there had been no breach of the rules of natural justice, and in finding that the applicant had had an opportunity of cross-examining witnesses, and that the evidence was not in issue. On the hearing of the appeal the court received additional evidence on affidavit by the applicant's solicitor in which he stated that he understood that the Divisional Court had been much exercised by the absence of information as to (a) whether or not there were regulations or byelaws which would indicate the nature and extent of the market manager's authority or the authority and powers of the council's indoor services subcommittee or of the civic amenities committee and (b) whether or not on the quashing of the decision of the indoor services subcommittee as confirmed by the civic amenities committee, the applicant could still be refused the right of trading in the Barnsley market, thereby rendering the decision of the Divisional Court nugatory. In respect of the first matter he exhibited to the affidavit a copy of the Barnsley Corporation Act 1969 and of the byelaws issued by the council and made in exercise of their powers under

JJ

The Weekly Law Reports, November 5, 1976

1055
1 W.L.R. Reg. v. Barnsley Council, Ex p. Hook (C.A.)

A section 61 of the Food and Drugs Act 1955 and section 8 of the private Act of 1969 (making further provisions with respect to the market undertaking); and he stated that nowhere was there contained in those byelaws any express power in the market manager or the committees to determine or revoke a market trader's licence; and that he had been informed by a representative of the council's solicitors that there were no other regulations or byelaws pertaining to the administration and regulation of the market. B Further, in respect of the second matter, he had been informed by a representative of the council's solicitors that the licence was an oral one and " continues until determined by the act of either party or revoked by the order of the committee," and that the licence was issued on the payment of a fee, the amount of which he did not know; but he understood that it was payable on a daily or weekly basis. He admitted that evidence of C the above matters could have been adduced before the Divisional Court, but submitted that by referring to the new affidavit the Court of Appeal would be assisted in deciding the appeal. The court received the new evidence, and of its own motion inquired further into the circumstances of the hearings of the applicant's appeals to the two council committees. John Mullick for the applicant. Michael Howard for the Barnsley Metropolitan Borough Council.
LORD DENNING M.R. TO some this may appear to be a small matter, but to Mr. Harry Hook it is very important. He is a street trader in the Barnsley market. He has been trading there for some six years without any complaint being made against him; but, nevertheless, he has now been banned from trading in the market for life. All because of a trifling incident. On Wednesday, October 16, 1974, the market closed at 5.30. So were all the lavatories, or " toilets " as they are now called. They were locked up. Three-quarters of an hour later, at 6.20, Harry Hook had an urgent call of nature. He wanted to relieve himself. He went into a side street near the market and there made water, or " urinated," as it is now said. No one was about except one or two employees of the council, who were cleaning up. They rebuked him. He said: " I can do it here if I like." They reported him to a security officer who came up. The security officer reprimanded Harry Hook. We are not told the words used by the security officer. I expect they were in language which street traders understand. Harry Hook made an appropriate reply. Again we are not told the actual words, but it is not difficult to guess. I expect it was an emphatic version of " You be off." At any rate, the security officer described them as words of abuse. Touchstone would say the security officer gave the "reproof valiant" and Harry Hook gave the "countercheck quarrelsome ": " As You Like It," Act V, Scene IV. On the Thursday morning the security officer reported the incident. The market manager thought it was a serious matter. So he saw Mr. Hook the next day, Friday, October 18. Mr. Hook admitted it and said he was sorry for what had happened. The market manager was not satisfied to leave it there. He reported the incident to the chairman of the amenity services committee of the council. He says that the chairman agreed " that staff should be protected from such abuse." That very day the market manager wrote a letter to Mr. Hook, banning him from trading in the market. It read:
VOL.

JJ

53 (2)

The Weekly Law Reports, November 5, 1976

1056
Lord Denning M.R. Reg. v. Barnsley Council, Ex p. Hook (C.A.) [1976]

" H. Hook, Esq., Semi-Open Market, Bamsley. Dear Sir, Further to A your interview on Friday, October 18, 1974. In confirmation of that interview I have to give you notice that you are no longer considered to be a suitable tenant of this authority. The stalls and pitch at present reserved for you each market day will cease to be available for your use after Wednesday next the 23rd instant. Please arrange to clear stock from your cupboards by this date. Yours faithfully,..." B So there he was on Friday, October 18, dismissed as from the next Wednesday, banned for life. He was, however, granted a further hearing. On the next Thursday, October 24, he was allowed to state his case before the chairman of the amenity services committee, the vice-chairman, the amenities officer and the market manager himself. He went there accompanied by the president ^ of the Barnsley Market Traders' Union. The matter was discussed. The council people saw no reason to alter the decision, but told Mr. Hook that he could be heard further by the indoor services subcommittee. This met on the following Wednesday, October 30. Mr. Hook went there with a young articled clerk from his solicitors and the trade union representative. The committee met at 10 a.m. but Mr. Hook and his representatives had to wait for an hour before they were allowed in. Then the articled clerk D and the union representative went in. But Mr. Hook himself did not go in. He stayed outside in the corridor. The articled clerk and the union representative were allowed to address the committee, but they were not given particulars of the charge or of the evidence against Mr. Hook. At that meeting the market manager was present and was in a position to tell the committee his view of the evidence. After Mr. Hook's representatives had been heard, that subcommittee discussed the case (with the market manager still present) and decided to adhere to the original decision. Thereupon Mr. Hook applied to the Divisional Court for leave to apply for a writ of certiorari. The Divisional Court gave leave to make the application, but after hearing both sides, they dismissed his application. Now there is an appeal to us. There is much more material before us than was before the Divisional F Court. In particular about the market at Barnsley. The right of having a market at Barnsley was granted as long ago as the year 1249 by a charter by King Henry III to the Prior and Convent of Pontefract. After the dissolution of the monasteries, it became vested in lay hands and eventually in the Dukes of Leeds. In 1861 the market rights were conveyed to the Barnsley Local Board, and thence to the Barnsley Corporation. In 1969 a _ private Act was passed called the Barnsley Corporation Act 1969 which confirmed the title of the Barnsley Corporation and gave them the power to regulate the conduct of the market and to make byelaws. This right of holding a market is subject to the common law of England. It says that every member of the public is entitled to come into the market place, to bring things there for sale: and others are entitled to come in to buy them. Sellers and buyers can come without let or hindrance, moving H about and walking to and fro. But a seller has not any right to pitch a stall there unless it has been allocated to him by the owner of the market. When it is so allocated, the owner can charge a fee for it called stallage, which the seller has to pay. It was so stated in 1795 in Northampton Corporation V. Ward (1795) 2 Stra. 1238 and Yarmouth Corporation v. Groom (1862) 1 H. & C. 102. It was restated in modern times in the case of the Spitalfields Market, London Corporation v. Lyons Son & Co. (Fruit

The Weekly Law Reports, November 5, 1976

1057
1 W.L.R. Reg. v. Barnsley Council, Ex p. Hook (C.A.) Lord Denning M.R.

A Brokers) Ltd. [1936] Ch. 78; and the Colchester Market case, AttorneyGeneral v. Colchester Corporation [1952] Ch. 586; and Halsbury's Laws of England, 3rd ed. (1958), vol. 25, pp. 391-398. In the Barnsley Corporation Act 1969, there is a section which says that if a stallholder is in arrear with his stallage for his stall and fails to pay within three days of the demand, the corporation can take possession and relet the space. In addition, the Barnsley Corporation have made B byelaws which conform to the common law. Byelaw 4 prohibits any person from erecting a stall unless a space has been allocated by the superintendent. Byelaw 5 prohibits any person from erecting a stall without the previous written consent of the superintendent. There are also byelaws for preventing damage and throwing litter about, and the like. For a breach of the byelaws an offender can be taken before the magistrates and Q fined up to 20. Such being the legal position, I do not think that the right of a stallholder arises merely under a contract or licence determinable at will. It is a right conferred on him by the common law under which, so long as he pays the stallage, he is entitled to have his stall there: and that right cannot be determined without just cause. I agree that he has to have the permission of the marketholder to start with. But once he has it and has D set up his stall there, then so long as he pays the stallage, he has a right to keep it there. It is not to be taken away except for just cause and then only in accordance with the provisions of natural justice. I do not mind whether the marketholder is exercising a judicial or an administrative function. A stallholder counts on this right in order to enable him to earn his living. It is not to be taken away except for just cause and in accord with natural c justice. So it was quite right for the committee to hold the hearings. I will assume that Mr. Hook was given sufficient notice of the charge to be able to deal with it. But, nevertheless, each of the hearings was, to my mind, vitiated by the fact that the market manager was there all the time. He was the one who gave evidencethe only one who didand hearsay evidence, too. His evidence was given privately to the committee, not in F the presence of Mr. Hook or his representatives. Mr. Hook was not himself in the room. His representatives were there, and they were heard. But when the committee discussed the case and came to their decision, the market manager was there all the time. His presence at all their deliberations is enough to vitiate the proceedings. It is contrary to natural justice that one who is in the position of a prosecutor should be present at the ^ deliberations of the adjudicating committee. That is shown by Reg. v. ^ London County Council, Ex parte Akkersdyk, Ex parte Fermenia [1892] 1 Q.B. 190 and Cooper v. Wilson [1937] 2 K.B. 309. But there is one further matter: and that is that the punishment was too severe. It appears that there had been other cases where men had urinated in a side street near the market and no such punishment had been inflicted. H Now there are old cases which show that the court can interfere by certiorari if a punishment is altogether excessive and out of proportion to the occasion. In one case the Commissioners of Sewers imposed an excessive fine: and it was quashed by the Court of King's Bench on the ground that in law their fines ought to be reasonable: see Rex V. Northumberland Compensation Appeal Tribunal, Ex parte Shaw [1952] 1 K.B. 338, 350. So in this case if Mr. Hook did misbehave, I should have thought the right thing would have been to take him before the magistrates under the

The Weekly Law Reports, November 5, 1976

1058
Lord Denning M.R. Reg. v. Barnsley Council, Ex p. Hook (C.A.) [1976]

byelaws, when some small fine might have been inflicted. It is quite wrong that the Barnsley Corporation should inflict upon him the grave penalty of depriving him of his livelihood. That is a far more serious penalty than anything the magistrates could inflict. He is a man of good character, and ought not to be penalised thus. On that ground alone, apart from the others, the decision of the Barnsley Corporation cannot stand. It is said to be an administrative decision: but even so, the court has jurisdiction to quash it. Certiorari would lie to quash not only judicial decisions, but also administrative decisions. Then Mr. Howard, on behalf of the corporation, said that these two matters (which I have mentioned)the presence of the market manager and the excessive penaltywere not mentioned in the grounds on which Mr. Hook applied for certiorari to the Divisional Court. That is correct. But I think he should still be able to raise them. It must be remembered that, in applications for certiorari, the applicant knows very little of what has happened behind the scenes. He only knows that a decision has been taken which is adverse to him, and he complains of it. His statement of grounds (filed under R.S.C., Ord. 53, r. 1 (2)) should not be treated as rigidly as a pleading in an ordinary civil action. If the Divisional Court give leave (as it did here) the practice is for the respondent to put on affidavits the full facts as known to them. The matter is then considered at large upon the affidavits. If there then appear to be other grounds on which certiorari may be granted, the court can inquire into them without being bound by the grounds stated in the original statement. The Divisional Court will always look into the substance of the matter. So here. On the case as it has developed in this court it seems to me that the Barnsley Corporation, in all good faith but erroneously, have taken away this man's licence to trade without justification and without having that due inquiry which the law requires. I think the appeal should be allowed and certiorari go to quash their decision.

SCARMAN L J . Mr. Hook asks the court to bring up and quash a decision by the Barnsley Corporation given on October 18, 1974, whereby, F as is conceded, they in effect cancelled his opportunity of trading in the Barnsley market. This is a serious matter, because what has been done is to revoke an existing licence, a licence which enabled its holder to earn his living. The late Professor S. A. de Smith, in Judicial Review of Administrative Action, 3rd ed. (1973), p. 197 described very well the gravity of such a step. He Q said: " Non-renewal of an existing licence is usually a more serious matter than refusal to grant a licence in the first place. Unless the licensee has already been given to understand when he was granted the licence that renewal is not to be expected, non-renewal may seriously upset his plans, cause him economic loss and perhaps cast a slur on his reputation. It may therefore be right to imply a duty to hear before " a decision not to renew when there is a legitimate expectation of renewal, even though no such duty is implied in the making of the original decision to grant or refuse the licence."

The author is there dealing with non-renewal, but everything that he says about non-renewal applies with even greater force to revocation. The first question which the court has to decide is whether certiorari

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1 WX.R. Reg. v. Barnsley Council, Ex p. Hook (C.A.) Scarman L.J.

A will lie in the circumstances of this case at all. The Divisional Court, without the full information we now have, expressed the view that certiorari would not lie because, as they saw it upon the material before them, the decision of which Mr. Hook complains was a purely administrative decision. I would have thought that there was some difficulty in maintaining that view of the character of the decision once Mr. Howard, for Mr. Hook, conceded, as he did before the Divisional Court, that this " was a case where it was necessary to determine whether the rules of natural justice had been adhered to. Like Lord Denning M.R., I think the concession by Mr. Howard was correctly made, but I do not think it would be correct to decide the question of jurisdiction merely upon the concession of counsel arguendo. Certiorari may issue in the circumstances which were indicated many Q many years ago in the well known judgment of Atkin L.J. in Rex v. Electricity Commissioners, Ex parte London Electricity Joint Committee Co. (1920) Ltd. [1924] 1 K.B. 171. In the course of his judgment, Atkin L.J. said, at p. 205: " Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act
j-v judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division . . ." The first question to consider is whether the Barnsley Corporation, in its administration of this market, is to be considered a body of persons having legal authority to determine questions affecting the rights of subjects. Historically, going right back to the beginning of the history of the preroga-

tive writs of certiorari and prohibition, they were the writs that enabled the King's justices to control the actions of local authorities. Of course, in those days, almost invariably, the justices of the peace were the local authorities charged with administrative as well as judicial duties. There are, therefore, good, respectable historical antecedents for expecting a local authority to be a body of persons amenable to control by orders of certiorari and prohibition. But one has to see whether in the instant case F the corporation was a body of persons having legal authority to decide questions affecting the rights of subjects. Lord Denning M.R. has already pointed out that when one is considering, as one is here, a market situation, the public have by common law the right to go to market and there to buy and sell. That right remains part of the law of England, but is now subject to considerable statutory Q regulation. In the instant case the statutes regulating the conduct of this market are the private Act, the Barnsley Corporation Act 1969, and sections 55 to 61 of the Food and Drugs Act 1955. Byelaws have been made under the private Act, and indeed the Food and Drugs Act contains enabling provisions which would support the byelaws if for any reason they might appear to be ultra vires the private Act. I can take quite shortly what the resulting situation is. The public H retain their right of going to this market, but the conduct of the market is regulated by the byelaws issued by the Barnsley Corporation. A trader, or a member of the public, can only acquire effectively the opportunity to trade in this market if he can obtain a licence, which no doubt as between him and the corporation is contractual, to use the facilities or equipment for trading that are under the Act provided by the corporation in the market. Although his rights are to that extent contractual, nevertheless in granting or withholding them the local authority has the discretion

The Weekly Law Reports, November 5, 1976

1060
Scarman LJ. Reg. v. Barnsley Council, Ex p. Hook (C.A.) [1976]

granted by its private Act of Parliament, and plainly the discretion is a discretion to regulate the exercise of the public's common law right to buy and sell in the market. Although, therefore, there is a contractual element in this case, there is also an element of public law, viz., the enjoyment of rights conferred upon the subject by the common law. I think, therefore, upon analysis, it is clear that the Barnsley Corporation in its conduct of this market is a body having legal authority to determine questions affecting the rights of subjects. I think also it must follow that it is under a duty to act, in the broadest sense of the term, judicially, because, although the end product of a negotiation between the corporation and a would-be trader is a contractual licence, that licence is available in accordance with the discretion conferred by a statute which regulates a common law right. I therefore disagree with the view expressed by the Divisional Court that the decision taken here to revoke Mr. Hook's licence was a purely administrative matter. I think it was the exercise of a discretion by a local authority charged with the regulation of common law rights and a discretion which had to be exercised in a manner judicial. Therefore, and for those reasons, I think Mr. Howard was correct to concede before the Divisional Court that we are here dealing with a decision where the local authority was under a duty to act with natural justice. In my judgment, the local authority was in breach of one rule of natural justice which is so old that it can be put in the Latin language: nemo debet esse judex in causa propria. Before I come to consider that aspect of the matter, it is only fair to Mr. Howard's admirable and tenacious argument to consider his preliminary point that really this point was never taken by Mr. Hook, the applicant. It is true that the point does not appear in the statement of his case which he was under a duty, pursuant to the Rules of the Supreme Court, to lodge when he applied for leave to seek his order. Like Lord Denning M.R., I think it not uncommon that at that stage of the proceedings the applicant is in a state of only partial knowledge as to the matters affecting his rights. He knows what has happened to him and what has been done in his presence, but he knows nothing else. At that stage he does the best that he can with his advisers in putting his material into his statement of case, but, of course, if that material is enough to persuade the Divisional Court to grant leave, then there comes a duty upon the respondent to file evidence, if need be, and in filing evidence to fill up the gaps in the knowledge of the court, bearing in mind that the court is exercising a supervisory jurisdiction: an ancient jurisdiction by which the King's judges have for centuries controlled local authorities when acting judicially. When the authority came to file its evidence, then it seems to me it did appear that Mr. Fretwell, the market manager, and the chairman of the committee had participated, first, in the decision to revoke the licence; secondly, in the first appeal, which was conducted a week later on October 24; and, lastly, in the final appeal, which was conducted on October 30. There can be no doubt upon the affidavit of Mr. Fretwell himself that he and the chairman were parties to the original decision to revoke the licence. It seems to me an inescapable inference from the way in which Mr. Fretwell has described what was then done. There can be no doubt that the two of them were both members of the first appeal committee. There can be no doubt that one of them, namely, the chairman, was a party to the final appeal, and it is clear from the evidence that, whether or not he participated in the decision, Mr. Fretwell, the market manager, was present with the

The Weekly Law Reports, November 5, 1976

1061
1 W.L.R. Reg. v. Barnslcy Council, Ex p. Hook (C.A.) Scarman LJ.

A committee throughout the discussion, hearing, and determination of the final appeal. This point was not argued, we have been told, before the Divisional Court, but it arises without the need of any further supplementation on the evidence of Mr. Fretwell and Mr. Nettleton, the chairman, and it is covered by the general terms of the notice of appeal, although the specific point is not taken. Mr. Howard has not asked for an adjournment to deal with the point, and I do not think that an adjournment could possibly help him, since he has accepted that the evidence of Mr. Fretwell indicates plainly his presence throughout, his participation in the first appeal, and the participation of the chairman throughout. Even if there was room for ambiguity as to whether it was the chairman who was consulted by Mr. Fretwell before the first decision, there can be no ambiguity or doubt C as to his presence at the two appeals. Forensically I have some sympathy with Mr. Howard in having to deal with this point when I am sure that he did not expect it, but he has dealt with it vigorously and effectively, and we have, I am satisfied, the material upon which to consider it. Mr. Howard relied on Reg. V. Gaming Board for Great Britain, Ex parte Benaim and Khaida [1970] 2 Q.B. 417, to support the proposition, with which I agree, that the requirements of natural justice have to be considered always in the particular circumstances of the case. I think it is certainly possible to envisage cases in which the presence of somebody like Mr. Fretwell at a hearing might not constitute a breach of natural justice. One has to see what it is that is being considered and what is the subject matter for decision. The point, if I may say so, with respect, was admirably made by Lord E Denning M.R. in Benaim's case, at pp. 430-431. There, having quoted the well known words of Lord Parker C.J. in In re H. K. (An Infant) [1967] 2 Q.B. 617,630, Lord Denning M.R. made this comment: " Those words seem to me to apply to the Gaming Board. The statute says in terms that in determining whether to grant a certificate, the board ' shall have regard only' to the matters specified. It follows, p I think, that the board have a duty to act fairly . . . But I do not think that they need quote chapter and verse against him as if they were dismissing him from an office, as in Ridge v. Baldwin [1964] A.C. 40; or depriving him of his property, as in Cooper v. Wandsworth Board of Works (1863) 14 C.B.N.S. 180. After all, they are not charging him with doing anything wrong. They are simply inquiring as to his capability and diligence and are having regard to his character, G reputation and financial standing." That being the nature of the inquiry in Benaim's case, it is not surprising that the court was able to reach the conclusion that the Gaming Board was under no duty to disclose its sources of information. In the present case the corporation was considering something very like dismissing a man from his office, very like depriving him of his property, H and they were charging him with doing something wrong. It was the revocation of a licence because of misconduct that they had under considerationnot merely the man's fitness or capacity for the grant of a licence. There was, therefore, a situation here in which (using the terms broadly) Mr. Hook was on trial, and on trial for his livelihood. There was a complainant, the market manager. The market manager had a professional interest in the matter since he was concerned to protect his employees, or the employees for whom he was responsible, from abuse and

The Weekly Law Reports, November 5, 1976

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Scarman LJ. Reg. v. Barnslcy Council, Ex p. Hook (C.A.) [1976]

misconduct by stallholders in the market. Mr. Fretwell was a prosecutor, a complainant; Mr. Hook was a man, albeit in an administrative field, who was on trial not for his life but for his livelihood. If ever there was a case in which it was imperative that the complainant or the prosecutor should not participate in the adjudication, I should have thought it was this one; and that is why I would distinguish it from Benaim's case. There is respectable authority, to which Lord Denning M.R. has already referred, which shows that in an appropriate case it is important that the complainant or prosecutor should not participate in a decision or in an appeal from a decision, and should not even appear to participate. The Master of the Rolls has referred to the two cases, and I need not go back to them. In the first of them, Reg. v. London County Council, Ex parte Akkersdyk [1892] 1 Q.B. 190, the members of the committee, whose presence vitiated the decision of that committee, took no part in the final voting; but they were there and had participated in the first decision from which the appeal was being taken. It all depends, of course, on the nature of the case. In that case it was whether or not a licence should be granted for music and dancing. It was a " renewal" case. In the present case it is whether or not a licence to trade should be revoked. I would have thought, therefore, that this case is a more serious one than the L.C.C. case, and that, if indeed it was being considered whether or not Mr. Fretwell had been right to revoke Mr. Hook's licence (as it was), then most certainly the rule of nemo debet esse judex in causa propria should have been rigorously observed throughout the whole appellate process. I place my judgment on that ground and on that ground alone, and it is for that reason I agree that this appeal should be allowed.
SIR JOHN PENNYCUICK. I agree that this appeal should be allowed. As we are differing from the Divisional Court and in deference to the argument of counsel, I will state summarily my own reasons for this decision. I will read again the letter dated October 18, 1974, from the market manager to Mr. Hook:

j?

" Further to your interview on Friday October 18, 1974. In confirmation of that interview I have to give you notice that you are no longer considered to be a suitable tenant of this authority. The stalls and pitch at present reserved for you each market day will cease to be available for your use after Wednesday next the 23rd instant. Please arrange to clear stock from your cupboards by this date." G The narrow question raised by that notice is whether it was effective to determine Mr. Hook's contractual licence to occupy his particular stall. That narrow question, however, is part of a wider question, namely, whether the corporation, in exercise of its powers of administering the market, could indirectly deprive Mr. Hook of his common law right to trade in the market and thereby indirectly deprive him of his livelihood. H The narrow question I think turns upon the ordinary principles of contract in relation to the use of land. The wider question imports a right to a hearing in accordance with the requirements of natural justice and admits the remedy of certiorari. The corporation's power is not, I think, a merely administrative power. However one poses the question, I would answer it in the negative. It is clear that the council could not determine Mr. Hock's licence on

The Weekly Law Reports, November 5, 1976 1063 1 W.L.R. Reg. v. Barnsley Council, Ex p. Hook (C.A.) Sir John Pennycuick A five days' notice, and a fortiori could not exclude him from the market, except upon some good cause, and that, I think, was accepted by Mr. Howard. There is no express provision in the Barnsley Corporation Act 1969 which would warrant this step. Is there then any good cause? If the court is satisfied that the council has acted without good cause, the court must, I think, be bound to interfere. It seems to me that the isolated and trivial incident at the end of a R working day is manifestly not a good cause justifying the disproportionately drastic step of depriving Mr. Hook of his licence, and indirectly of his livelihood. I would base my judgment in part upon that ground. I agree with what has been said by Lord Denning M.R. and Scarman L.J. with regard to the failure of the committee of the corporation to comply with the rules of natural justice, and I would also base my Q judgment in part upon that ground. I will not go over this part of the case again. I would then allow this appeal. Appeal allowed with costs in Court of Appeal but not in Divisional Court. D Solicitors: White and Leonard for Morrish & Co., Leeds; D. P. Clephan, Barnsley. M. M. H.

[COURT OF APPEAL]

* LONDON & HARROGATE SECURITIES LTD. v. PITTS [1974 L. No. 3574] F 1976 July 8 Megaw, Browne and Geoffrey Lane L.JJ.

MoneylenderCriminal offenceImplication of carrying on banking businessWhether loan recoverable in civil proceedings Moneylenders Act 1927 (17 & 18 Geo. 5, c. 21), s. 4 (3)* Moneylender Memorandum Non-compliance with statutory requirementsOmission of " per annum " after rate of interest Whether agreement enforceable"Per cent."Meaning G Moneylenders Act 1927, s. 6 (2) The plaintiffs, licensed moneylenders, lent 16,500 to the first defendant. The sum was to be repaid at the end of two months. The memorandum of agreement stated: " Interest shall be calculated at the true rate of 23 per cent. . . .," without adding "per annum." During the course of the loan transaction the plaintiffs in a letter heading and on a cheque referred to themselves as " merchant bankers " when, at that time, they did not have that status. The first defendant did not repay the loan, and the plaintiffs brought an action against him for repayment with the agreed interest. The first defendant by way of defence contended that by virtue of the plaintiffs' breach of section 4 (3) of the Moneylenders Act 1927 by their reference to being "merchant bankers" the Moneylenders Act 1927, s. 4 (3): see post, pp. S. 6 (2): see post, p. 1069G.
1

1066H-1067A.