Sainsbury's Supermarkets Ltd v HM Courts Service

Amendment of a summons after the statutory limitation period cannot be used to substitute a genuinely different defendant. The relevant distinction is between correcting a misnomer where the prosecutor identified the correct legal person, and replacing the person originally summoned with a new defendant. Knowledge by the intended company, its staff or its representatives does not cure the defect if the proper defendant was not before the court within time.

Where a holding company has not caused or contributed to the prosecutorial mistake, has a complete defence, and is removed from the proceedings, it may be entitled to a defendant's costs order.

These were two linked judicial review claims arising from a prosecution concerning a jam doughnut sold at a supermarket. The information and summons named “J Sainsburys plc (trading as Sainsburys Supermarket Ltd)”, although neither name identified an existing legal person. The store was operated by Sainsbury's Supermarkets Limited, while J Sainsbury plc was the holding company.

The district judge allowed the prosecution to amend the summons so as to substitute Sainsbury's Supermarkets Limited after the limitation period had expired. He also removed J Sainsbury plc but refused it a defendant's costs order under Prosecution of Offences Act 1985, section 16. The central issue was whether the amendment corrected a misdescription or introduced a new defendant out of time.

1. SSL claim allowed. The amendment had the effect of bringing a charge against Sainsbury's Supermarkets Limited, a new defendant, after the statutory time limit. It was therefore impermissible.
2. The correct distinction, applied from Marco (Croydon) Ltd v Metropolitan Police Commissioner [1983] Crim LR 395 and R v Greater Manchester Justices ex p Aldi GmbH & Co KG (1994) 159 JP 727, is between a case in which the prosecutor has identified the correct defendant but misstated its name, and a case in which the wrong person was summoned. In the latter case, amendment cannot substitute the true offender after expiry of the limitation period.
3. The district judge was wrong to treat the words “trading as Sainsburys Supermarket Ltd”, the knowledge of the investigation, and the absence of confusion as sufficient. The summons caused counsel to appear for PLC, and SSL was not before the court. The amendment therefore introduced SSL as a new defendant outside the statutory period.
4. PLC claim allowed. PLC had not lulled the Council into believing that it was the proper defendant. It had a complete defence and was removed by the amendment. Unlike the position in Aldi, the circumstances justified a defendant's costs order in PLC's favour under section 16 of the Prosecution of Offences Act 1985.
5. SSL was entitled to its costs against the local authority. No order for costs was made in relation to PLC's judicial review hearing because of the duplication of representation.

The claims arose from decisions made by District Judge Farmer at Plymouth Magistrates' Court on 6 December 2005. The High Court quashed the amendment substituting SSL and directed that PLC receive a defendant's costs order in the magistrates' court proceedings.