DSG Retail Ltd. v Stockton On Tees Borough Council

On an appeal by case stated, the High Court is confined to the facts recorded in the case stated. The parties cannot supplement that record with notes of evidence, although the case may be amended through the proper procedure.

Where a charge depends on goods being identical, the prosecution must provide evidence capable of proving that fact to the criminal standard. Evidence that comparable products may be supplied with or without additional equipment can make the evidence insufficient. A court must decide the case on the basis on which it was charged and pursued; it cannot substitute an uncharged alternative case.

DSG Retail Ltd, trading as Currys, was convicted by District Judge Earl in the Teesside Magistrates’ Court of two offences under section 20 of the Consumer Protection Act 1987. The charges alleged misleading price indications because DSG failed to honour a price promise when an identical tumble dryer was available more cheaply at a nearby Comet store.

The District Judge rejected submissions of no case to answer and found the products were the same. On appeal by case stated, DSG challenged the sufficiency of the evidence, the use of evidence concerning two versions of the price promise, and the finding that the products were identical.

1. Appeal allowed. The convictions, fines, costs orders and other orders below were quashed. The matter was not remitted, and DSG received its costs of the appeal payable by the local authority.
2. On an appeal by case stated, the High Court is confined to the facts set out in the case stated. It is impermissible to rely on notes of evidence or other material from the hearing below to supplement the record. The parties must ensure that relevant matters are included when the draft case stated is settled. The court agreed with the approach in Skipaway Ltd v Environment Agency [2006] EWHC 983 (Admin).
3. The question was whether the evidence recorded in the case stated was capable of supporting the District Judge’s conclusion. The prosecution evidence had to be taken at its highest, but Mr Neil’s evidence was that tumble dryers were sometimes supplied with vent kits and sometimes without them. In those circumstances, the tribunal of fact could not properly conclude beyond reasonable doubt that the products sold by Currys and Comet were identical.
4. The fact that DSG had not relied on the vent kit as the reason for refusing the price promise did not cure the evidential deficiency. The charges were framed on the narrow basis that the same product was available more cheaply elsewhere. The District Judge was therefore not entitled to rely on evidence of two different price promises, or to convict on an alternative theory based on reasons not stated in the price offer.
5. The court refused the respondent’s application to adduce further evidence. The issue was one of law on the evidence in the case stated, and the prosecution could have sought an adjournment when the vent-kit issue emerged at trial.

• High Court (Administrative Court): Appeal by case stated allowed. The convictions, fines and costs orders made below were quashed without remission.
• Teesside Magistrates’ Court: District Judge Earl convicted DSG Retail Ltd of two offences under section 20 of the Consumer Protection Act 1987, imposed fines of £3,000 on each count and ordered payment of £3,920 costs.