Leeds City Council v Watkins & Anor

A market franchise confers an exclusive right to hold markets within the relevant limits and protects the owner against a rival market within 6⅔ miles. A same-day rival market within that distance is actionable without proof of actual damage, and an injunction is the natural relief where the disturbance is likely to continue. A car boot sale is a market for this purpose. A local authority may enforce its rights through a market it licences, provided the licence and regulatory arrangements are lawful and remain open to judicial review. Competition-law defences require proof of the relevant undertaking, market, dominance or collusion, and the requisite effect on trade.

The Council brought consolidated proceedings seeking final injunctions against Sunday car boot sales operated at Drighlington and Morley without its licence or consent. It relied on charter, statutory and franchise market rights, including a licensed Sunday market at Granary Wharf within the common-law distance of the Drighlington site.

The defendants challenged the Council’s standing and the scope of its market rights. They also argued that the Council’s licensing and enforcement conduct was improper and infringed the Competition Act 1998 and Articles 81 and 82 of the EC Treaty. The central issues were whether the Council could enforce its rights through a licensed market, whether equitable relief should be refused, and whether the competition-law defences were established.

1. Market rights. The Council’s charter and statutory rights gave it market rights throughout the enlarged area. Section 116 of the 1905 Act imposed a criminal penalty for infringement; it did not create a freestanding regulatory regime replacing the Council’s proprietary market rights.
2. A market franchise carries the exclusive right to hold markets within the relevant limits and protection from disturbance by a rival market within 6⅔ miles. A car boot sale is a market. For a same-day rival market within the distance, damage is irrebuttably presumed and no proof of damage is required. An injunction is the natural relief.
3. The Council could enforce its rights against the Drighlington sale because it had licensed Granary Wharf to operate a Sunday market within the exclusive franchise area. The Council’s ability to licence markets was an incident of ownership, subject to judicial review. A mere apprehension that illegality might be discovered elsewhere did not justify refusing relief after trial.
4. The Council’s change from protecting franchise value to operating a regulatory licensing scheme did not constitute an improper collateral purpose. The scheme was reviewable and the Council was entitled to obtain an injunction once infringement was established.
5. The competition-law defences failed. The Council was an undertaking because its profitable market operation was economic activity, but the evidence did not establish a sufficiently defined geographical or product market, a dominant position, abuse, or collusion between undertakings. There was no evidential basis for a potential effect on trade between Member States.
6. The Council established its entitlement to injunctions. Mr Watkins’s counterclaim was dismissed.

First-instance decision. No prior appellate decision is stated in the judgment.