Kilhey Court Hotels Ltd v Wigan Metropolitan Borough Council

The statutory due diligence defence requires a defendant to prove all reasonable precautions and all due diligence. Where the defence relies on the act or default of another person, the person must be identified under section 21(5) of the Food Safety Act 1990. If the evidence reveals during the trial that an additional employee may bear responsibility, the defendant should seek leave to amend or supplement its defence. The omission may prevent the defence being established on the case as tried. However, on a case stated under section 28A of the Supreme Court Act 1981, the High Court may grant leave itself where justice requires. It may then revisit the defence and quash convictions if the defence is made out on the established facts.

The appellant hotel company was convicted by District Judge Ward at Wigan Magistrates’ Court on ten food-safety offences concerning mould on food and inadequate kitchen cleanliness. The company relied on the statutory due diligence defence under section 21(1) of the Food Safety Act 1990 and identified two employees in its section 21(5) notice.

The District Judge found that a further senior employee, Mr Nicholls, had partly contributed to the offences, but he had not been named in the notice. The District Judge therefore convicted the company. The appeal by way of case stated concerned whether the company could rely on the defence despite that omission and whether the High Court could grant leave to include Mr Nicholls.

1. The appeal was allowed and the convictions were quashed. The District Judge had been entitled to convict on the evidence and issues as they stood before him, because Mr Nicholls was an employee for whom the company was responsible and his default had not been included in the section 21(5) particulars.

2. Section 21(5) did not require Mr Nicholls to be named in the original notice, because the defence initially alleged that the offences were due to the acts or defaults of Mr Bullows and Mr Kenyon. Once it became apparent that significant blame might also be attributed to Mr Nicholls, however, the company should have applied for leave to rely on his act or default as that of another person.

3. The omission was material. Without Mr Nicholls being included in the defence, the District Judge was entitled to conclude that the company had not established the due diligence defence in full. The Respondent conceded that, if Mr Nicholls’s conduct had been included, the findings of fact established the defence.

4. Section 28A(3) of the Supreme Court Act 1981 gave the High Court sufficiently wide power to entertain the late application for leave on a case stated. The Court granted leave because the omission resulted from a misunderstanding, the relevant facts had already been fully explored, and justice would otherwise not be served. On revisiting the District Judge’s findings with leave granted, the defence was made out.

5. The matter was not remitted because the factual findings were sufficient. The Magistrates’ Court costs order remained in force, and the appellant was ordered to pay the respondent’s costs of the appeal, assessed on the standard basis if not agreed.

• Wigan Magistrates’ Court: District Judge Ward convicted the appellant on ten food-safety offences on 27 February 2004.
• High Court (Administrative Court): On appeal by way of case stated, the Court granted leave to rely on Mr Nicholls’s acts and defaults, held the due diligence defence established, and quashed the convictions.