Summary

The Covent Garden Market Act 1961 s.18(1)(f) was wide enough to permit the secretary of state to consent to the Covent Garden Market Authority carrying on, or granting leases which allowed to be carried on, activities unconnected with the sale of horticultural produce.

Facts

The secretary of state and the Covent Garden Market Authority (C) appealed against the decision ((2004) EWCA Civ 1765, (2005) 1 WLR 1286) that the granting by C of leases enabling traders to sell fish or meat at New Covent Garden Market fell outside the power conferred on C by the Covent Garden Market Act 1961 s.18(1)(f) . The respondent Corporation of London (L) owned Smithfield Market, where meat was sold, and Billingsgate Market, where fish was sold. Each of those markets was entitled under common law to protection from competition by any rival market held within a distance of seven miles. C's New Covent Garden Market was within seven miles of both those markets. C had obtained the secretary of state's consent under the proviso to the Covent Garden Market Act 1961 s.18(1)(f) to its granting or extending the scope of leases to enable traders to sell fish or meat at New Covent Garden Market. L successfully claimed in judicial review proceedings that s.18(1)(f) did not empower C to extend the scope of leases or to grant leases so as to permit a lessee to engage in face-to-face trading in meat or fish, and did not enable the secretary of state to consent to C so acting.

Held

The words of s.18(1)(f) "to carry on all such other activities as it may appear to (C) to be requisite advantageous or convenient for them to carry on" were very wide. A natural reading of the preceding paragraphs suggested a wide rather than a restrictive reading. The first limb of the provision, "for or in connection with the discharge of their duties", could certainly be read as importing a restriction to activities relating to the sale of horticultural produce, but the second limb, "or with a view to making the best use of any of their assets", strongly suggested that the activities did not have to relate to C's duties concerning horticultural produce. The grounds relied on by the Court of Appeal for coming to a different conclusion as to the scope of the second limb could not be accepted. It could not be right that any activity by C at its site that would be in competition with L's markets at Smithfield and Billingsgate would for that reason alone be excluded from the scope of s.18(1)(f). The proprietor of a market could not complain about competition unless, first, the competition constituted a rival market, second, the rival was trading within the area in which the proprietor was entitled to protection from competition and, third, the competition was sufficiently substantial to constitute in law a disturbance to the proprietor's market. The first and third requirements raised issues of degree and depended on the facts. The consent that the secretary of state had given expressly stated that it should not be taken as granting any market rights and it did not authorise C to hold a meat or fish market. If what C did in purported reliance on the consent constituted the holding of a meat or a fish market, C would be going outside the ambit of the consent. The exercise by C of the additional powers granted by the consent would not necessarily involve an interference with L's market rights and unless and until a point of actionable interference was reached it could not be said that the nature of C's market had changed.

Appeals allowed.