Justice of the Peace Law Reports/2013/Motor Depot Ltd and Wilkinson v. Kingston upon Hull City Council – (2013) 177 JP 41
(2013) 177 JP 41
Motor Depot Ltd and Wilkinson v. Kingston upon Hull City Council
 EWHC 3257 (Admin)
Queen’s Bench Division
(Elias LJ and Singh J)
October 23, 2012
Trading law — whether content of business record admissible if not produced — Criminal Justice Act 2003, s.117 — deception as to manner in which price determined — whether misleading impression in commercial practice can be corrected by other information — Consumer Protection from Unfair Trading Regulations 2008, regs.9 and 5(4)(g) — whether each web page of internet advertisement constitutes separate advertisement — Consumer Credit (Advertisements) Regulations 2004, reg.4(1) and Consumer Credit Act 1974, s.167 — when inference can be drawn as to director’s duties and neglect of them — Consumer Protection from Unfair Trading Regulations 2008, reg.15 and Consumer Credit Act 1974, s.169.
The first appellant, “the Company”, traded as “Interestfree4cars”, selling motor vehicles. The second appellant, “W”, was its managing director. Following a Crown Court trial, they were each convicted of offences under reg.9 of the Consumer Protection from Unfair Trading Regulations 2008 (“CPUTR”) and of contravening reg.4(1) of the Consumer Credit (Advertisements) Regulations 2004 (“CCAR”) contrary to s.167 of the Consumer Credit Act 1974 (“CCA”). The convictions of W were on the basis that, as a director, he was guilty of the offences committed by the Company, the offences being attributable to his neglect, as provided for respectively by reg.15 of the CPUTR and s.169 of the CCA. The Company and W appealed to the High Court by way of case stated. The following issues arose.
(a) The Company was convicted of an offence contrary to reg.9 of the CPUTR alleging that it had falsely claimed that a Mercedes car was under warranty when its warranty had in fact expired. An employee of Mercedes-Benz UK gave evidence, from her own knowledge, that the warranty of such a car, if first registered outside the UK, expired after two years and that the records showed the car had first been registered in Germany. That record, however, was not produced and the effective question was whether the employee’s evidence was admissible.
(b) The Company and W were each convicted of five offences of engaging in misleading actions contrary to reg.9 of the CPUTR, it being found that the Company had advertised cars for sale on the internet and that the overall presentation of the advertisement, which included that the finance available was “interest free”, was likely to deceive the average consumer in relation to how the price of each vehicle was calculated. The price of the “interest free” vehicles was similar to the
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sum of price and interest for the same cars advertised by the Company elsewhere. The appellants maintained that the advertisements were not misleading as they accurately stated the price and that interest would not have to be paid on it. The question was whether there was a deception as to the manner in which the price was determined. In relation to three of the “interest free” advertisements, they showed a photograph of the relevant car with the cash price displayed on its windscreen such that it could be seen that the actual cash price was substantially less than the interest-free price being charged. As the customer would thus know that he was paying more than the cash price, the additional question arose as to whether the photographs were enough to correct any misleading impression resulting from the phrase “interest free”.
(c) The five convictions of each of the Company and W under s.167 of the CCA resulted from the Company’s failure to display on each of its internet credit advertisements the number of payments and the total amount payable under a credit agreement, as required by paras.5(2) and 7 of sch.2 to the CCAR. The appellants contended that, if one looked at the relevant linked pages, the full information was available, even though it was not all present on each individual web page. The question was whether the Judge was right to conclude that a single web page of an internet advertisement must be treated as a credit advertisement.
(d) The 10 convictions of W were predicated on proof of his neglect. W contended, in reliance on Huckerby v. Elliot  1 All ER 189, that there was no evidence that he had undertaken any specific obligation with respect to the advertisements, and that in those circumstances there was no proper basis for inferring any liability by him.
Held (quashing the first conviction against the Company but dismissing the remainder of the appeal): (a) Whereas s.117 of the Criminal Justice Act 2003 permits records to be adduced as an exception to the hearsay rule in certain circumstances without the record keeper or the person who originated the record being called to give evidence, evidence from another person as to what they had seen in such records is inadmissible if the records are not produced.
(b) A court was entitled to conclude that the average customer would assume that there was some benefit to him in a price being stated to be “interest free”. It implies something about how the price was calculated and suggests that the seller was accepting that at least some, if not all, of the costs that would normally attach to the giving of credit would be borne by the seller. In this case, that was not so. The purchaser was paying the same as he would have done had he bought the car on credit and bearing interest; he was simply paying the interest in a rolled-up way. The statement was misleading about the way in which the price had been determined within the meaning of regs.9 and 5(4)(g) of the CPUTR. Where the advertisement included a photograph which showed a lower price for the car than the price for which the car was sold, it was not sufficient to correct the misleading impression resulting from the phrase “interest free”. However, had
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the difference been spelt out to the consumer in the advertisement plainly and unequivocally, it may well be that no infringement would have occurred. There would have been no deception had the position been clear and unambiguous.
(c) The Judge was right to conclude that each web page of an internet advertisement constituted a separate advertisement. Hence any related web page in an advertisement which gave any credit information was a separate credit advertisement. The obligation is to provide the relevant information on each credit advertisement, and that obligation is not satisfied by putting it on some advertisements but not others. One of the purposes of the CCAR was to have the information together so that the potential consumer is not drawn into an advertisement as the result of it headlining a favourable feature, whilst concealing, until the consumer’s interest has been secured, perhaps less favourable features of the terms of sale. The fact that the consumer would see a page with all the relevant information prior to finally choosing to purchase is no answer to an allegation of breach of the regulations.
(d) It was sufficient evidence in a company of this kind, for somebody who was treated as the boss and claimed to be managing director and where the advertisements were so central to the business, for the Judge to draw the inference that there would be a duty on the managing director. Such inference raises a prima facie case, which is then capable of being rebutted by the defendant. In the absence of some explanation from W as to what was going on within the company, it was a proper inference for the Judge to draw. Once it was established that the duty rested upon W, it was a necessary inference that he was in breach of that duty given the range and volume of advertisements which went out in breach of the law, and that, if he had carried out a proper supervisory role in relation to them, there is every reason to suppose that there would have been no breach.
Mr Neil A. Cameron for the appellants.
Mr Miles Bennett for the respondent.
- Lord Justice Elias:
This is an appeal by way of case stated against a conviction on some 19 [sic] counts relating to two appellants, Motor Depot Ltd, and the second appellant, Philip Wilkinson, who is managing director of that company. The first appellant is a company incorporated in England which trades as a retailer in motor vehicles, both from showrooms and through internet sites.
- A series of summonses was issued against both of these appellants, all related to alleged trading standards offences. Originally there were some 57 summonses issued against them and two other defendants, who were also directors of the company. In the event only 19 were the subject of the trial against these two appellants only.
- The summonses were all issued following investigations by an enforcement officer from the Trading Standards Service
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in Kingston upon Hull. The appellants were tried on October 17 19, 2011, and both appellants were convicted of all the offences.
- One of the summonses was directed solely to the first appellant, Motor Depot Ltd. It alleged that a company salesman had claimed that a Mercedes vehicle was under warranty when it was not. That, if established, is an offence under reg.9 of the Consumer Protection from Unfair Trading Regulations 2008 (“the 2008 Regulations”), when read together with reg.5.
- There were five summonses directed against both the company and Mr Wilkinson relating to vehicles which were advertised for sale “interest free”. Again, these were alleged infringements of reg.9 of the 2008 Regulations. The nature of the alleged offence, as directed against the company, is described in the summonses. I take one by way of example:
“On the 8th day of June 2010 Motor Depot Ltd trading as Interestfree4cars did engage in an unfair commercial practice which amounted to a misleading action, namely by stating on an internet advertisement that the finance available for an Audi TT motor vehicle registration SF07 XHT was interest free, the overall presentation of which was likely to deceive the average consumer in relation to how the price of the vehicle was calculated and which was likely to cause the average consumer to take a transactional decision he would not otherwise have taken …”
- Another 10 summonses — five directed at each appellant — were the subject of a different set of regulations. The substance of these allegations against the company is that credit advertisements were published without disclosing the information required by reg.4(1)(a) of sch.2 to the Consumer Credit (Advertisements) Regulations 2004. The relevant matters in the Schedule allegedly not referred to were the number of payments and the total amount payable under a credit agreement, as required by paras.5(2) and 7 of that Schedule respectively. The advertisements were displayed on the internet and the appellants contended that, if one looked at the relevant linked pages, the full information was available even though it was not all present on each web page.
- The 10 summonses directed at the individual appellant involved equivalent charges to those of the company. However, the offences against the company are offences of strict liability, but that is not so in relation to the allegations against the individual appellant. In each of the summonses issued against Mr Wilkinson it was alleged that, whilst the company had committed the substantive offence, he was guilty of being neglectful in relation to it.
- In relation to the interest free loan offences, his liability arose out of reg.15 of the 2008 Regulations. The relevant summonses against him set out the offence committed by the company and then in each case continued as follows:
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“AND that offence was committed with your consent, connivance or wilful neglect as a director of Motor Depot Ltd by reason of reg.15 of the Consumer Protection from Unfair Trading Regulations 2008.”
- The summonses alleging advertising infringements were similarly framed, save that the liability of the director stems from s.169(2) of the Consumer Credit Act, which is, however, cast in identical terms to reg.15.
- In fact, the case against Mr Wilkinson in each of these summonses was advanced on the basis of neglect rather than consent or connivance. Furthermore, although the summonses refer to wilful neglect, it was appreciated that that was wrong and that the relevant test is merely neglect. No point is taken on that error in the summonses.
- The legislation
- I will first set out the relevant statutory provisions insofar as they are material.
- Regulations 5(1) and 5(2) of the 2008 Regulations are as follows:
“5. (1) A commercial practice is a misleading action if it satisfies the conditions in either para.2 or para.3.
(2) A commercial practice satisfies the conditions of this paragraph —
(a) if it contains false information and is therefore untruthful in relation to any of the matters in para.4 or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and
(b) it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.”
- I pause to note that it is not a defence that the information is factually accurate. It may still be misleading if its overall presentation is likely to deceive an average consumer. By reg.2, the average consumer is defined as someone who has characteristics, amongst others, of being reasonably well informed, reasonably observant and circumspect.
- Paragraph 5(4) then identifies a whole range of matters which fall within the scope of para.5(2)(a). They include under para.g: “The price or the manner in which the price is calculated”.
- Regulation 9 provides that the trader is guilty of an offence if he engages in a commercial practice which is misleading under reg.5.
- Regulation 15 deals with the circumstances in which individual directors and others may be liable where the company
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of which they are a director has committed the substantive offence. So far as is material, it is as follows:
“15. (1) Where an offence under these Regulations committed by a body corporate is proved —
(a) to have been committed with the consent or connivance of an officer of the body, or
(b) to be attributable to any neglect on his part, the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
(2) In para.1 a reference to an officer of a body corporate includes a reference to —
(a) a director, manager, secretary or other similar officer …”
- The relevant Regulations relating to advertisements are found in the Consumer Credit (Advertisements) Regulations 2004. Regulation 4(1) is as follows, insofar as is material:
“4. (1) Where a credit advertisement includes any of the amounts referred to in paras.5 to 7 of sch.2 to these Regulations … the advertisement shall also —
(a) include all the other items of information (other than any item inapplicable to the particular case) listed in the relevant Schedule …”
- Section 167 of the Consumer Credit Act provides that a person who contravenes any of the 2004 Regulations relied on here commits an offence, and, as I have said, s.169(2) imposes liability on individual directors in similar circumstances to those found in reg.15 of the 2008 Regulations.
- There are now challenges to each of the four categories of summons. The appellants made a preliminary submission to the effect that in certain respects the case stated is insufficiently detailed, and suggested that we may need to remit it for further information before reaching our decision in relation to these grounds of appeal. We say at the outset that we do not think it necessary to take that step.
- I will take the various summonses in turn.
The warranty summons
- In relation to the first summons, relevant only to the company, the allegation was that a salesman had represented that a warranty for a Mercedes car was still in place when it was not. The Judge in the case stated recounts why he unequivocally accepted the evidence of the purchaser as against the salesman that there had been such a representation. That finding has not and could not be challenged. However, in order to establish the
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offence, it was also necessary to show that the warranty had in fact expired. The purchaser gave evidence that he had contacted the company and was told that it had expired. The explanation given to him was that the vehicle had been registered in Germany and that the warranty expired after two years. This was consistent with evidence given by a Miss Helen Robins, who was an employee of Mercedes-Benz UK as a customer support co ordinator. She checked the computer records which confirmed that the car had been registered in Germany. The relevant part of the records, however, was not disclosed to the court itself.
- The question posed with respect to this summons is as follows:
“The question for the opinion of the High Court is whether there was evidence before me to come to my decision that the motor vehicle in question was no longer under warranty when it had been so represented to the purchaser by the company.”
- It is potentially a little misleading to pose the question in that way. The relevant question is not, with respect, whether there was any evidence to prove that the motor vehicle no longer remained in warranty. It is conceded that, if the evidence of Miss Robins is admissible, then there was plainly very strong evidence that the warranty had expired. The real issue, therefore, is whether there was sufficient admissible evidence to support that conclusion, and that is how we construe the question.
- It seems to me that the key issue is whether the information given about the car was hearsay. Technically it was. No evidence was given by the originator of the records. Section 117 of the Criminal Justice Act permits records to be adduced as an exception to the hearsay rule in certain circumstances without the record keeper or the person who originated the record being called to give evidence. But that was not done here. No records were produced and the statement of case shows that there was no reliance on any such records. There was simply the statement by Miss Robins that she checked them and they showed that the car had first been registered in Germany, but she was not able to assert that from her own knowledge.
- In my view, the evidence as to what Miss Robins had seen in the records was not admissible. Her knowledge of the policy with respect to the length of warranties for cars first registered outside the UK was admissible, but, without admissible evidence about where the car was first registered, there was not sufficient evidence to sustain the case because there was no proof from admissible evidence that the warranty had expired. Without that evidence, the prosecution was not able to demonstrate that the representation was false. Accordingly, I would answer the question as follows:
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“There was insufficient admissible evidence to sustain the Judge’s conclusion that the car was no longer under warranty at the time the representation was made.”
- It follows, therefore, that I would quash that conviction.
The five summonses relating to the interest free advertisements
- The question here is whether there was a deception as to the manner in which the price was determined. As I have said, that is a matter falling within reg.5(4)(g). The relevant deception, as found by the Judge, was that the concept of interest free implies that the customer would have to pay no more with respect to a transaction financed by credit than if he paid cash up-front. In fact, the evidence showed that this was not so. The Judge’s finding, insofar as it is material, is in para.6 of the case stated as follows:
“In each of the advertisements concerned, I found that the capital price of the interest free vehicle equated to, or as near as equal to, the capital and interest payment advertised by another trading entity of the same Company advertising exactly the same car. By that very fact, I found that offering the vehicles in question in the terms they were advertised is likely to deceive the average consumer, in the manner described in the informations.”
- The Judge found that the statement was misleading in the manner described in the summons; that is, it was likely to deceive the average customer as to how the price of the vehicle had been calculated.
- The appellants say that there was nothing misleading. A potential purchaser was told the price and he was told he would not have to pay interest on it. There was nothing misleading about that; it was all entirely accurate.
- Mr Cameron, for the appellant, does indeed accept nonetheless that this was not fair commercial practice, and he recognizes that, had the prosecution pursued the case under reg.9(1)(b) of the 2004 Advertisements Regulations, there would have been criminal liability. This is in the following terms:
“9. (1) A credit advertisement shall not include —
(a) the expression “interest free” or any similar expression indicating that a customer is liable to pay no greater amount in respect of a transaction financed by credit than he would be liable to pay as a cash purchaser in relation to the like transaction, except where the total amount payable by the debtor does not exceed the cash price …”
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- Mr Cameron’s case, in essence, is that the prosecution therefore picked the wrong offence: they should have prosecuted under that Regulation instead of under reg.9 of the 2008 Regulations.
- I disagree. In my view, the Judge was entitled to conclude that the average customer would assume that there was some benefit to him in the price being stated to be interest free. It implies something about how the price was calculated and suggests that the seller was accepting that at least some, if not all, of the costs that would normally attach to the giving of credit would be borne by the seller. In fact, that was not so. The purchaser was paying the same as he would have done had he bought the car on credit and bearing interest; he was simply paying the interest in a rolled up way.
- In my judgment, therefore, the statement was misleading about the way in which the price had been determined.
- A minor variation of this submission was that in three of the advertisements it could be seen by looking at photographs of the particular cars that the actual cash price was substantially less than the interest free price. Accordingly, it was submitted that there was no misrepresentation at all. The consumer would know that he was paying more than the cash price. The Judge did deal briefly with that point in the statement of the case. He said this:
“I made this finding [ie, a finding that there had been a breach of reg.9 of the 2008 Regulations] notwithstanding the fact that for some of the vehicles the photograph contained in the website showed a lower price in the windscreen of the vehicle.”
- I would accept that, if the difference had been spelt out to the consumer in the advertisement plainly and unequivocally, it may well be that no infringement would have occurred. It may be said that, in those circumstances, there would have been no deception because the position would have been clear and unambiguous. But I do not accept that the photograph is enough to correct any misleading impression resulting from the phrase “interest free”. Certainly the Judge was entitled to find that it was not sufficient here to cure the potentially misleading message which that phrase would have conveyed to the average consumer.
- The question posed by the Judge was whether he was right to accept that the matters to which he had referred constituted sufficient evidence to prove all the elements of the offence. For the reasons I have given, the answer, in my view, is that he was entitled to reach that conclusion on the evidence.
The advertisement summonses
- The third set of summonses relate to the failure to provide the relevant information in the way I have described.
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- As the Judge correctly observed, the issue here was whether a single web page must be treated as a credit advertisement. (The Judge in fact said that the issue was whether each page was an “advertisement”, but the offence only applies to credit advertisements and I have no doubt that is what the Judge had in mind.)
- The argument advanced by the appellants was that the credit advertisement is not the single web page but must be treated as the linked series of web pages read together. Although the relevant information was not given on each web page, it was a mistake in advertisements of this kind to treat each page as an independent advert. Counsel accepted that the single web pages, if read on their own, would not have satisfied the Advertisements Regulations. They would then have been credit advertisements as defined, but would not have contained all the relevant information. But he showed us, from the information made available to us — and it was not disputed — how the web pages would work in a typical case. If one clicked on the first page, one would get a picture of lots of cars and they would contain some credit information, including that there was nil deposit as well as the amount to be paid per month. Then there is the option to go on to a different page where there were models of a particular car, for example, and again some but not all relevant information was provided on that page. Then one could go on to a new page highlighting the particular car in which one might be interested, and at that stage the full credit information would be provided. Accordingly, says counsel, before anyone ultimately bought a car, the consumer would have the information required in the single credit advertisement; there was no prejudice to […] him. Advertisements provided in these web pages are interlinked and those going to the site would appreciate that.
- The Judge disagreed and, notwithstanding the attractive argument of counsel, I think the Judge was right to do so and to conclude that each web page constituted a separate advertisement. It seems to me that one of the purposes of the Regulations is to have the information together so that the potential consumer is not drawn into an advertisement as the result of it headlining a favourable feature, whilst concealing, until the consumer’s interest has been secured, perhaps less favourable features of the terms of sale. If that is correct, as I think it is, then the fact that the consumer would see a page with all the relevant information prior finally to choosing to purchase is no answer to an allegation of breach of the Regulations. The obligation is to provide the relevant information on each credit advertisement, and that obligation is not satisfied by putting it on some advertisements but not others.
- I would add, of course, that, if the first web page simply showed various cars for sale without giving any credit information at all, that would be wholly acceptable because they would not then be credit advertisements. But once credit
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information is provided, the seller cannot be partial as to the information provided.
- The question posed by the Judge in relation to these summonses was whether the Judge was correct in finding that the required information was not disclosed in what he found to be a one page web advertisement, and whether there was evidence to sustain those findings. I would answer that he was entitled to find that each web page amounted to a separate advertisement and that the required information had not been provided.
- The final issue concerns the 10 convictions of Mr Philip Wilkinson himself. As I have said, he was convicted on the basis that he had been guilty of neglect, which is the language used both in reg.15 of the 2008 Regulations and s.169(2)(a) of the Consumer Credit Act.
- The Judge was referred to a number of cases concerning the proper construction of those provisions. We were shown some of the same authorities. The Judge then set out his conclusions as to why he considered that there was liability in the circumstances of this case.
- The contention is that the Judge erred in law because he did not engage with three matters necessary to fix liability. These are set out in the judgment of Huckerby v. Elliot  1 All ER 189. The facts of that case were somewhat removed from this, but the statement of principle relied upon is found in the judgment of Lord Parker CJ. Counsel relies upon the fact that there was no evidence that the appellant in this case had undertaken any specific obligation with respect to the advertisements, and in those circumstances there is no proper basis for inferring any liability. Lord Parker said this:
“Counsel for the respondent concedes that these words ‘attributable to any neglect on the part of the directors’ refer to the omission to do something which the director was under a duty to do. It is unnecessary to go through the cases which deal with what in different circumstances may or not be the duty of a director, but I know of no authority for the proposition that it is the duty of a director to, as it were, acquaint himself with all the details of the running of the company. Indeed it has been said by Romer J in Re City Equitable Fire Insurance Co Ltd  Ch 497 at 428-430 that, amongst other things, it is perfectly proper for a director to leave matters to another director or to an official of the company, and that he is under no obligation to test the accuracy of anything that he is told by such a person, or even to make certain that he is complying with the law.”
- Counsel further submits that, focusing on the language of reg.15, it is necessary to show not merely that the duty exists,
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but that there has been a breach of it and that the offence is attributable to neglect on the accused’s part. He says that, in the circumstances of this case, the evidence relied upon by the Judge was wholly inadequate to permit an inference to be drawn that there was any responsibility at all lying on this appellant with respect to the drafting and presentation of advertisements. It may well have been somebody else who had undertaken that obligation, and in those circumstances, applying the principle referred to in the Huckerby case, there is no basis for saying that this director could have been under any obligation to supervise or check the work done by that other person.
- Again, I reject that submission. It seems to me that effectively in order for this particular submission to succeed it is necessary to show that the test in Galbraith 1 WLR 1039 is satisfied: in other words, that there simply was no evidence on which, as a matter of law, the Judge could properly convict in the circumstances of the case. It was in fact argued at trial at half time that the case should not be allowed to go ahead and the Judge rejected that submission. This is in effect a re-run of that argument.
- In my view, there was sufficient evidence here for the Judge to draw the inference that he did. He gave his reasons why it was a proper inference that, in a company of this kind, for somebody who was treated as the boss and claimed to be managing director and where the advertisements were so central to the business, there would be a duty on the managing director. Of course, that only raises what is in effect a prima facie case, which then is capable of being rebutted by the defendant going into the witness box and demonstrating that, in fact, there was somebody else who was responsible and that there was no reason to suppose that he should be supervising the activities of that other person. But the defendant in this case chose not to give evidence. That of course is his right, but it also meant that he was taking the chance that the Judge would find that there was a sufficient basis to establish liability under reg.15 and s.169(2) respectively.
- In cases like this, it is unlikely in practice that there would be direct evidence as to where exactly the duty lies and to identify who has taken responsibility within an organization for drafting or checking or placing the advertisements. It would be curious if in those circumstances there could never be any proper fixing of liability. There does of course have to be a proper evidential basis to justify a Judge inferring the existence of the duty necessary to fix criminal liability, but in my judgment there plainly was such evidence available to the Judge here, and, in the absence of some explanation from the defendant himself as to what was going on within the company, it was a proper inference for the Judge to draw.
- I should add that, once it was established that the duty rested upon this particular appellant, then it seems to me that it is a necessary inference that he was in breach of that duty,
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given the range and volume of advertisements which went out in breach of the law, and that, if he had carried out a proper supervisory role in relation to them, there is every reason to suppose that there would have been no breach.
- So, for these reasons, I find that the answer to the question posed in relation to these particular summonses is that the Judge was correct in the interpretation of the case law, although I would accept that he did not set it out in much detail. More importantly, there was evidence to support his findings in respect of Mr Philip Wilkinson’s duty and his neglect of it sufficient to justify his conclusion that the appellant was guilty of these offences.
Mr Justice Singh:
Solicitors: Rollits for the appellants.
Kingston upon Hull Council, Legal and Democratic Services for the respondent.
Reported by Victor Smith, LLB, Solicitor