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

A private body’s decision is amenable to judicial review where the nature of the power or function, considered with all relevant circumstances, gives the decision a sufficient public element, flavour or character. Decisions controlling traders’ access to markets held on publicly owned land to which the public has access may possess that character, regardless of the market-holder’s private identity or the absence of statutory authority.

Public character may also arise where a private, non-profit company was created by a local authority, took over substantially the same publicly beneficial activity and received continuing assistance from that authority. On such facts, amenability to judicial review and the exercise of a public function under Human Rights Act 1998 section 6 will ordinarily march hand in hand, although the tests are not invariably identical.

Hampshire County Council established and operated farmers’ markets under its economic development powers. It then helped farmers and producers form Hampshire Farmers Markets Ltd, a private company limited by guarantee, to take over the markets. The company used the same admission criteria, received personnel and practical assistance from the council and operated on publicly owned town-centre sites.

The company refused Graham Beer permission to participate in its 2002 programme. Field J held that the decision was amenable to judicial review, quashed it for breach of natural justice and held that the company had acted as a public authority under section 6 of the Human Rights Act 1998. The damages claim was adjourned. The council appealed on the questions whether the company’s decision had a sufficient public character and whether it exercised a function of a public nature.

1. Appeal dismissed unanimously. The company’s decision to exclude a trader from its farmers’ markets was amenable to judicial review. In making that decision, the company was also acting as a public authority within section 6 of the Human Rights Act 1998.

2. Per Dyson LJ, where the source of a body’s power does not clearly answer the question, the court must examine the nature of the power and function and all relevant circumstances. The issue is whether the decision possesses a sufficient public element, flavour or character. There is no universal litmus test or clear dividing line between public and private functions.

3. The markets were held on publicly owned town-centre land to which the public had access. The market authorities, particularly R v Barnsley Metropolitan Borough Council, ex p Hook [1976] 1 WLR 1052 and R v Wear Valley District Council, ex p Binks [1985] 2 All ER 699, showed that neither the private or public identity of the market-holder nor the statutory source of its power was decisive. Control of a trader’s access to such a public market supplied an important public-law element.

4. The relationship between the company and the council supplied a further sufficient basis for review. The council created the company using its statutory powers; the company stepped into the council’s shoes by operating the same markets, for the same end and substantially in the same way; and the council supplied premises, personnel, professional assistance and financial support. The absence of statutory underpinning, governmental control or a delegated statutory duty did not outweigh those features.

5. The contractual or consensual element in the trader’s relationship with the company did not remove its additional public character. This was materially different from a body whose sole authority arose from consensual submission.

6. The judicial-review authorities were helpful but not necessarily determinative when applying section 6. They had to be considered in light of relevant Strasbourg jurisprudence. No such jurisprudence pointed to a different result here, and the two questions marched hand in hand on the facts.

7. Longmore LJ agreed and considered each basis independently sufficient. He expressly approved Binks as good law. Sir Martin Nourse agreed with Dyson LJ’s reasons.

1. Court of Appeal (Civil Division): The council’s appeal was dismissed unanimously. The findings that the company’s decision was amenable to judicial review and that it acted as a public authority under section 6 of the Human Rights Act 1998 were upheld.

2. Administrative Court: Field J quashed the company’s decision for breach of natural justice and held that it was amenable to judicial review. He also held that the company acted as a public authority under section 6 and adjourned the damages claim. The natural-justice ruling was not appealed.