Focus (DIY) Ltd v London Borough of Hillingdon

In an appeal by case stated, the High Court upheld convictions for selling goods bearing a false trade description. A technical standard must be interpreted as a whole, including its specified testing sequence and timings. Where testing necessarily alters or destroys goods, Trade Descriptions Act 1968, section 30 requires a defendant to be allowed testing after the prosecutor’s tests where reasonably practicable; it does not require the prosecutor to preserve goods in pristine condition. Destruction or a breach of a preservation duty does not automatically make a prosecution an abuse of process. The question is whether the defendant can still receive a fair trial. Evidence may be admitted by agreement inferred from the parties’ conduct, and an objection raised only at the close of evidence may properly be treated as an ambush. Costs are not grossly disproportionate merely because they substantially exceed the fine.

Focus (DIY) Limited was convicted by magistrates of selling an extending ladder bearing a false description that it complied with Standard EN 131. The magistrates fined the company £4,500 and ordered it to pay £44,357 in costs.

On appeal by case stated, the company challenged the interpretation and application of the standard, the cutting up of the tested ladder, the refusal to admit written evidence from two German witnesses, the admission of a witness statement under section 9 of the Criminal Justice Act 1967, and the costs order.

1. Appeal dismissed. All questions in the case stated were answered yes. The conviction, costs order and magistrates’ decisions were upheld.
2. Clause 3.9 of EN 131 did not require the test to be conducted with the ladder vertical. It required the ladder’s performance, if wrongly erected as a standing ladder, to be assessed. Whether horizontal testing sufficiently met that requirement was a matter of expert evidence. The accredited horizontal procedure was not challenged on that basis.
3. Under clause 4.2, “permanent deformation” and “residual deflection” were used interchangeably for the test. The detailed sequence required measurement one minute after removal of the 1000N load. No further undefined period was required.
4. Section 30 of the Trade Descriptions Act 1968 required testing for the defendant after the prosecutor’s tests where reasonably practicable. It did not require the prosecutor to conduct testing in a manner preserving the goods in pristine condition. The cutting up of the ladder therefore did not itself establish an abuse of process.
5. The approach in Leatherland v Pritchard v Powys County Council [2007] EWHC 148 (Admin) was distinguishable as an exceptional case. Applying R (Ebrahim) v Feltham Magistrates’ Court [2001] EWHC Admin 130, the defendant could receive a fair trial. There was no serious fault or bad faith, and other ladders of the same type were available for testing.
6. The magistrates were entitled to refuse the late written evidence. Uncross-examined written testimony would prejudice the prosecution, and the defendant had taken no timely steps to secure the witnesses or seek an adjournment.
7. The section 9 statement of the testing witness remained admissible. Agreement for the purposes of section 9(2), and for section 114 of the Criminal Justice Act 2003, could be inferred from overt conduct. An objection withheld until closing submissions could properly be regarded as an ambush; see Malcolm v DPP [2007] EWHC 363 Admin.
8. The costs were not grossly disproportionate. The fine’s proximity to the statutory maximum, the complexity of the proceedings, the expert evidence and the public-interest context all mattered. The principles in R v Northallerton Magistrates’ Court ex parte Dove [1999] Crim LR 760 did not require an arithmetical relationship between fine and costs. Costs of £6,003.60 for the appeal were summarily assessed.

• Magistrates’ Court: Convicted Focus (DIY) Limited, imposed a £4,500 fine and ordered payment of £44,357 in costs.
• High Court (Administrative Court): On appeal by case stated, answered every question yes and dismissed the appeal.