Nottingham City Council v Wolverhampton and Dudley Breweries

Section 14 of the Food Safety Act 1990 bears its ordinary meaning. Where the owner of goods authorises their sale, the owner may be liable for selling food which is not of the substance demanded, even when the food is alcoholic and the premises are licensed to another person.

Licensing legislation, directed principally to the responsibility of the licensee, does not automatically restrict liability under legislation protecting consumers. The owner may rely on the statutory defence of due diligence. Goodfellow v Johnson was narrowly construed because its broader reasoning rested on a misinterpretation of Hotchin v Hindmarsh.

Nottingham City Council appealed by way of case stated from a decision of a District Judge at Nottingham Magistrates’ Court. The District Judge had ruled, on preliminary legal arguments, that only the licensee or the licensee’s servant could be prosecuted in relation to the alleged sale of under-volume whisky and gin at a public house owned by Wolverhampton and Dudley Breweries.

The issue was whether, for the purposes of section 14 of the Food Safety Act 1990, the owner of alcoholic beverages could also be a seller where it owned the premises and employed the licensee.

1. Appeal allowed. The certified question was answered in favour of the Council. The order remitting the case to the District Judge was deleted because the prosecutor did not seek that direction. The application was allowed, costs up to £5,000 were awarded to the appellant, and permission to appeal to the House of Lords was refused.
2. Section 14 of the Food Safety Act 1990 should be given its ordinary meaning. It applies to all food, including drink, and contains nothing which exempts an owner who authorises the sale of alcoholic goods on licensed premises. The legislative purpose supports liability for the owner before the sale, and the owner is protected by the defence of due diligence under section 21(1).
3. Hotchin v Hindmarsh decided that the person physically handing over adulterated goods may be a seller under the relevant statutory wording. It did not decide that the owner on whose behalf the sale was made could not also be liable.
4. Goodfellow v Johnson was correct on its facts but its wider proposition was based, at least in part, on a misinterpretation of Hotchin v Hindmarsh. The reasoning was not severable from that error and the decision did not dictate the result. The licensing framework did not justify transferring to the licensee responsibilities imposed on product vendors by consumer-protection legislation.
5. The court rejected the alternative submissions that the 2001 statutory amendments altered the position or that the samples supplied to Trading Standards officers fell outside retail sale for the purposes of the Licensing Act 1964.

High Court (Administrative Court): allowed the prosecutor’s appeal by case stated from the preliminary ruling of the District Judge at Nottingham Magistrates’ Court. The case was not remitted because the prosecutor did not seek that direction.