Hampshire County Council v Graham Beer (t/a Hammer Trout Farm)

The Court of Appeal dismissed Hampshire County Council’s appeal and upheld Field J’s decision that the refusal by Hampshire Farmers Markets Limited (HFML) to admit Mr Beer to the 2002 farmers’ markets was amenable to judicial review and was made by HFML acting as a public authority within the meaning of section 6 of the Human Rights Act 1998. The court applied the functional test derived from Datafin and subsequent authorities: where the source of power does not provide the answer, the nature of the power must be examined for a sufficient public element. The factors material to that conclusion were (i) the markets were held on publicly owned, town-centre sites to which the public had access; (ii) HFML had stepped into the shoes of the county council, continuing the same criteria and programme; and (iii) significant features of the relationship between HFML and the council (assistance in incorporation, office facilities, secondment and transfer of staff and goodwill, and discretionary grant) gave HFML a public character in relation to these markets. The court relied on the market cases (Hook, Binks, Brown, Dredger, Robinson), Datafin and the Poplar/Donoghue and Heather authorities and held that these factors together justified judicial review and classification of HFML’s act as public.

Background and parties:

• Hampshire County Council (HCC) established and ran a programme of farmers’ markets to promote local economic development. Stall-holders had to meet prescribed criteria.
• Stall-holders formed a company, Hampshire Farmers Markets Limited (HFML), which HCC assisted to incorporate and which took over running the markets from January 2002.
• Graham Beer (trading as Hammer Trout Farm) applied to participate in the 2002 programme; HFML refused his application on 14 November 2001.

Nature of the proceedings and relief sought:

• Mr Beer sought judicial review of HFML’s decision and claimed damages under the Human Rights Act 1998. Field J quashed HFML’s decision and held HFML to be a public authority under section 6 of the 1998 Act; he adjourned the damages claim. HCC appealed to the Court of Appeal.

Issues framed by the court:

1. Whether HFML’s decision to exclude Mr Beer was amenable to judicial review.
2. Whether HFML was a "public authority" for the purposes of section 6 of the Human Rights Act 1998 when making that decision.

Court’s reasoning:

• The court applied the established functional test (Datafin) and considered later guidance in Poplar (Donoghue), Heather (Leonard Cheshire) and the House of Lords decision in Aston Cantlow, concluding those authorities remain useful guidance. Where the source of power is not determinative the nature and public flavour of the act must be assessed.
• The court treated the market jurisprudence (Hook, Binks, Brown, Dredger, Robinson) as showing that decisions denying a trader access to a market held on land to which the public have a right of access carry a public element and are amenable to judicial review.
• In addition to the public nature of the market sites, the court emphasised the relationship between HCC and HFML: HFML was set up with HCC’s assistance, acquired goodwill and effectively stepped into HCC’s shoes in running markets to the same criteria, used HCC premises and staff (including a director seconded from HCC), and had continuing links and support from HCC. Those factors together sufficed to give HFML’s decision a public character.
• The court therefore concluded HFML’s decision of 14 November 2001 was both amenable to judicial review and made by HFML acting as a public authority for the purposes of s.6 HRA. The appeal was dismissed.

Procedural note: Field J’s order quashing the decision was not challenged by HFML; HCC alone appealed. The court recognised the practical importance of the questions raised for local authorities transferring functions to private bodies.

Appeal dismissed. The Court of Appeal held that HFML’s decision of 14 November 2001 to exclude Mr Beer was amenable to judicial review and that, in making that decision, HFML was acting as a public authority within the meaning of section 6 of the Human Rights Act 1998. Rationale: markets were held on publicly accessible town-centre sites and HFML had effectively stepped into the county council’s role (continuity of criteria, transfer of goodwill, incorporation with council assistance, use of council premises and staff), producing a sufficient public element under the Datafin/Donoghue/market-cases test.

This was an appeal to the Court of Appeal from the Administrative Court (Field J). Field J, by a decision dated 25 November 2002, held HFML’s decision amenable to judicial review and quashed it, and held HFML to be a public authority under section 6 HRA; he adjourned the claim for damages. Hampshire County Council appealed; HFML did not appeal. The Court of Appeal delivered judgment on 21 July 2003 ([2003] EWCA Civ 1056) and dismissed the appeal.