Trade Descriptions Act 1968 — Application to auctioneers — Attribution in auction catalogue of a painting to ‘J M W Turner RA’ — Painting not by Turner — Information preferred against auctioneer by county trading standards officer — Distinction between section 1(1)(a) and 1(1)(b) of 1968 Act — Disclaimer — Appeal to divisional court — 1968 Act applies to art world and to auctioneers — Disclaimer not applicable to an offence under section 1(1)(a) — Magistrates wrong to acquit auctioneer but court informed that county council intended to clarify the position and not to prosecute him to conviction
wife read an auction catalogue which described a particular lot as ‘J M W
Turner RA a watercolour of moorland, stream, bridge and people’ — The wife authorised
a bid of up to £700 and in fact secured the painting at the sale for £400 — The
painting was not by J M W Turner RA and appears to have been virtually
worthless — The catalogue contained a comprehensive disclaimer of liability on
the part of the vendor and the auctioneers — It was made clear in the resulting
proceedings that there was no reflection on the honesty and integrity of the
respondent auctioneer — The information charged the respondent with an offence
under section 1(1)(a) of the 1968 Act by applying a false trade description in
the catalogue
magistrates concluded, rejecting an argument to the contrary, that the 1968 Act
did apply to the art world and artistic products; that the application of the
doctrine of disclaimer was not clear; and that, although the respondent
auctioneer did apply the false description in the catalogue, he was in so doing
acting as agent for the true seller — They also considered that prosecution
after such a long delay in bringing the matter before the court was oppressive
— The purchasers had seen the catalogue in the autumn of 1986, the picture was
collected in November 1986, the first complaint was made in April 1988,
information laid in April 1989, and the hearing before the magistrates took
place in August 1989 — An appeal from the magistrates’ decision was made by
case stated for the opinion of the divisional court
appellant, a trade protection officer acting for Derbyshire County Council,
referred to the cases of Newman v Hackney London Borough Council and R v Southwood and submitted
that an offence under section 1(1)(a) of the Trade Descriptions Act 1968 was
committed when a false trade description was applied to goods; that the
doctrine of disclaimer had no application when the offence alleged was under
section 1(1)(a); and that the courts had made it clear that in respect of
disclaimer there was a distinction between section 1(1)(a) (application of a
false description to goods) and section 1(1)(b) (sale of goods to which a false
description was applied) — The court accepted these submissions — The point
about agency mentioned by the magistrates failed, as auctioneers were covered
by section 1(1)(a) in the same way as any other trade or business — As regards
delay, the court agreed that it was very considerable in this case, but it was
not a ground for acquittal
was allowed but, as the appellant had come for purposes of clarification and
not with the intention of going back to the magistrates to prosecute to
conviction, and as there had been considerable delay, no order was made as to
costs
The following
cases are referred to in this report.
Aitchinson v Reith & Anderson (Dingwall & Tain) Ltd 1974 SLT
282; 1974 JC 12
Newman v Hackney London Borough Council (1982) 80 LGR 611; [1982]
RTR 296
R v Southwood [1987] 1 WLR 1361; [1987] 3 All ER 556; [1987]
RTR 273; [1988] TLR 39
This was an
appeal by Philip May, an assistant county public protection officer of the
trading standards division, for Derbyshire County Council, by way of case
stated from the decision of the Ashbourne justices acquitting the respondent,
William Thomas Duncan Vincent [FRICS], auctioneer, of an offence under section
1(1)(a) of the Trade Descriptions Act 1968.
Patrick
Gallagher (instructed by Kingsford Stacey, agents for Head of Legal Services,
County Director’s Department, Derbyshire County Offices, Matlock) appeared on
behalf of the appellant; the respondent appeared in person.
Giving
judgment, ALLIOTT J said: On April 21 1989 an information was preferred by the
appellant against the respondent that he, on or about October 27 1986 at
Ashbourne, in the course of a trade or business did apply to certain goods,
namely a watercolour painting, a false trade description by means of an entry
in an auction catalogue, namely:
J M W Turner RA
a watercolour of moorland, stream, bridge and people, unframed 6 1/2′ x 9 1/2′
to the effect
that it was by the said J M W Turner RA contrary to section 1(1)(a) of
the Trade Descriptions Act 1968. The information was heard by magistrates
sitting for the Petty Sessional Division of West Derbyshire at Ashbourne on
August 17 1989. They found the following facts:
(a) In the
autumn of 1986 Mr D J Smith and Mrs S A Smith read an auction catalogue
produced by the respondent in which lot 345 was described in the way I have
just read and that at that time Mrs Smith contacted the auctioneer and
authorised a bid of up to £700.
(b) That the
sale took place on October 29 1986 and that Mrs Smith had been successful at
£400.
(c) That Mr
Smith collected the picture on November 1 1986 and paid £400.
(d) That the
picture attributed to J M W Turner RA was not in fact by J M W Turner RA.
(e) That the
respondent was of the opinion that the painting was not by J M W Turner RA.
(f) That the
picture was virtually worthless.
(g) That there
was a comprehensive disclaimer at the front of the catalogue.
I myself, when
reading the papers, have read that as relating to a block which appears in the
catalogue under the heading ‘Misrepresentation Act 1967’. That reads:
The
auctioneers act as agents only. Each lot set out in the catalogue, or as
divided or joined with any lots at the sale at the sole discretion of the
auctioneers, is sold with all faults, imperfections and errors of description, and
neither the vendor nor the auctioneers are responsible for the authenticity,
attribution, genuineness, origin, authorship, date, age, period, condition or
quality of any lot. All statements in the catalogue as to any such matters are
statements of opinion, and are not to be taken as, or as implying statements or
representations of fact. Purchasers are deemed to have satisfied themselves
before bidding by inspection or otherwise as to all such matters, and as to the
physical description of any lot. Neither the vendor nor the auctioneers make or
give, nor has any person in the employment of the auctioneers any authority to
make or give, any representation or warranty, and in any event neither the
vendor, nor the auctioneers are responsible for any representation or warranty
or for any statement in the catalogue.
It may well be
that the magistrates had in mind paras 5 and 8 of the conditions of sale, also
printed in the catalogue, which echo those sentences I have just read and which
it would be otiose to read out as well. Certainly there was, on any showing, a
comprehensive disclaimer in the catalogue.
I go back to
the findings of fact of the magistrates:
(h) That the respondent was selling the picture
for a client.
(i) That the respondent was responsible for the
description in the catalogue.
At paras 4 and
5 of the case stated the rival contentions were summarised:
4 It was contended by the appellant that the
disclaimer in the catalogue did not constitute a defence when the respondent
was of the opinion that the description of the picture in the catalogue was
untrue or he suspected it to be untrue even though the words J M W Turner RA
were printed on the surround to the picture.
5 It was contended by the respondent that the
Trade Descriptions Act 1968 did not and could not apply to the Art World which
deals in opinions not facts and that even if it did the disclaimer in the
catalogue protected him. [The respondent] also claimed it was unjust to be
prosecuted so long after the event — particularly as he had long since
accounted for the receipts of the sale. He further contended that he had only
attached to the picture the description which appeared on the ‘frame’.
It is right to
interpose at this stage that Mr Gallagher has been at pains to emphasise that
not in the conduct of the original prosecution, nor in the prosecution of this
appeal by way of case stated, is it intended to reflect in any way upon the
honesty and integrity of the respondent.
The
magistrates went on to say at para 7:
We were of
the opinion that:
(a) The Trade Descriptions Act did apply to the
Art World.
However
dismayed the respondent may be, we have no doubt that that is a correct finding
by the magistrates.
(b) The part regarding the use of a disclaimer is
not clear and might benefit if it is broken into two sentences.
Although
there is authority for saying a disclaimer can protect a person making a false
statement it cannot protect a person making a statement knowing it to be false
but it can protect a person unaware of the true facts or uncertain of the true
facts if the disclaimer is sufficiently bold and makes the buyer aware of the
fact that the article may not be genuine and is not warranted to be genuine —
in such a case the doctrine of Caviat [sic] Emptor could apply.
(c) There had been long delay in this case being
brought before the court and that it was oppressive to prosecute in a case such
as this two years after the event and for the matter to be disposed of in very
little under three years after the event. The picture was collected on the 1st
November 1986 — complaint was made to the Trading Standards Officer on the 27th
April 1988 and an information was laid on the 21st April 1989.
(d) That although [the respondent] applied the
description in the catalogue to the painting he was in so doing acting as agent
for the true seller.
Thereafter
they posed for the opinion of this court:
Were we
correct in reaching the decision that we did when this matter was heard?
and then they
get the date [of the notice of appeal] wrong. They say ‘1st June 1989’ and it
should be October 17 1989.
I am bound to
say, in parenthesis, that it is rather difficult for this court to answer that
question in the form that they have posed it because they do not expressly make
their decision known.
In support of
this appeal the appellant puts forward a number of propositions of law:
1 That the provisions of section 1(1)(a)
of the Trade Descriptions Act 1968 apply to auctioneers. If authority be needed
for this proposition he points to Aitchinson v Reith & Anderson
(Dingwall & Tain) Ltd 1974 SLT 282 as persuasive authority. In fact
nothing in the legislation suggests that auctioneers should not be governed by
the legislation like every other trade or business and I have no doubt they are
so bound.
2 That an offence under section 1(1)(a)
of the Trade Descriptions Act 1968 is committed when the false trade
description is applied to the goods.
3 That the doctrine of disclaimer has no
application to an offence of applying a false trade description, contrary to
section 1(1)(a) of the Trade Descriptions Act 1968. In support of the second
and third propositions the appellant relies upon two authorities. First, Newman
v Hackney London Borough Council [1982] RTR 296 in which the Divisional
Court held:
(1) that an offence under section 1(1)(a) of the
Trade Descriptions Act 1968 was committed when the false trade description was
applied to the goods . . .; so that, in the present case, the odometer reading
having been altered to record the meaningful figure of 21,000 miles with the
obvious object of deceiving somebody, the false trade description was applied
when the odometer reading was so altered.
(2) That the common law doctrine of disclaimer
had no application to an offence of applying a false trade description contrary
to section 1(1)(a) . . .
In giving the
judgment of the court, Ormrod LJ said at p 302G:
In the course
of a long and very careful judgment, the circuit judge, sitting at the Crown
Court, held as a matter of law that the disclaimer doctrine, which had been
developed by the courts in connection with the second part of section 1(1) of
the Trade Descriptions Act 1968, did not apply to cases of applying a false
trade description in contrast to those cases where the charge was one of
supplying goods or articles to which a false trade description had been
applied. This is the point with which the court is dealing at present.
Section 1(1)
provides:
‘Any person
who, in the course of a trade or business,
(a) applies a false trade description to any
goods; or
(b) supplies or offers to supply any goods to
which a false trade description is applied;
shall, subject
to the provisions of this Act, be guilty of an offence.’
The distinction
which the Crown drew was the distinction between applying and supplying. Mr
Buckhaven submits that there is no valid distinction between those two offences
for this present purpose and that the disclaimer doctrine should apply equally
to those who apply a false trade description.
In my
judgment, there is a world of difference between the two offences. It is
perfectly true that the application of a false trade description must, in some
way, be related to a sale or prospective sale but, looking at the Act itself, I
am disposed to take the view that the offence is committed when the false trade
description is applied to the vehicle or goods and that is at the time when the
odometer reading is altered to read a meaningful figure like 21,000 miles. In
that light, a disclaimer has no application at all.
The second
case relied on by Mr Gallagher is that of R v Southwood [1987]
RTR 273 in which the Lord Chief Justice, sitting in the Court of Appeal
Criminal Division, expressly approved the Newman case and specifically
approved the distinction between section 1(1)(a) and section 1(1)(b)
of the 1968 Act, and went on to hold that it is ‘not open to a person charged
under section 1(1)(a) to rely on any disclaimer’.
Those
propositions, urged upon us by Mr Gallagher, are, in my view, well founded.
Subject to the issue of delay, they would dispose of this appeal because the
other point raised by the justices, that of agency, falls, in my view, as soon
as we hold, as I have done, that the auctioneers are covered by section 1(1)(a)
as in any other trade or business.
Newman’s case was cited to the magistrates and had they applied it correctly
they would have been bound to convict. The delay in bringing this matter to
court, however, was indeed considerable. The picture was collected in November
1986, the first complaint was made in April 1988, the information was laid on
April 21 1989 and the hearing eventually in the magistrates’ court was on
August 17 1989. It is apparent that Mr Vincent, the respondent, acting, then as
now, in person, did not specifically raise the preliminary issue of the delay amounting
to abuse of the process of the court, but merely commented, one suspects in
strong terms, when he came to give his evidence to the magistrates. In those
circumstances, that is not a sufficient basis for the court holding that the
delay is in any way a basis for the acquittal and equally that is a matter that
the justices should not have allowed to sway them in coming to the decision
that they did.
However, Mr
Gallagher, sensibly in my view, has indicated to the court quite openly that
the purpose of coming to this court is not with the intention of going back to
the magistrates to prosecute the respondent to a conviction but merely to
clarify the position in law, which I hope this judgment will go some way to
doing. So far as the delay is concerned, it may well be that Farquharson LJ
will be able to reflect that in any ancillary order that may follow the
judgment of this court.
FARQUHARSON
LJ agreed and did not add anything.
The appeal
was allowed. The court made no order as to costs.
