Estate agents — Property Misdescriptions Act 1991 — Prosecution — Informations alleging false or misleading representation relating to dampness — Conviction — Appeal by case stated — Whether informations valid on evidence and statements provided — Whether informations satisfying r 100 of Magistrates’ Court Rules 1981 — Whether sufficient evidence for conviction
Between June and August 2002, H sought to negotiate the purchase of a property being offered by the appellant estate agent. She became aware of dampness and, armed with a report that she had obtained from a damp-proof expert, she sought, unsuccessfully, to renegotiate the purchase price. The property remained on the market. She then faxed her report to the appellant. On 28 August, H and her friend D visited a branch office of the appellant, pretending to be potential purchasers. C, the appellant’s employee, told them that the property did not suffer from damp. When H and D spoke to C again, on 4 September, C failed to reveal the full extent of the damp and informed them that, inter alia, “you are always going to get some kind of damp because of the area”, and that the last sale had fallen through owing to personal reasons. Based upon those two conversations, and the witness statements of H and D, the appellant was summonsed to appear before a magistrates’ court in respect of three informations specifying offences of making false or misleading statements contrary to section 1(1) of the Property Misdescriptions Act 1991. The appellant’s submissions at the close of the respondent’s case, that there was no case to answer because the informations did not comply with r 100 of the Magistrates’ Court Rules 1981, were dismissed. The appellant was then convicted on two of the informations. It appealed by way of case stated, contending that the magistrates had not been entitled to dismiss the submission of no case to answer and had been wrong in ruling that the informations complied with r 100, and that there was insufficient evidence to convict.
Held: The appeal was dismissed.
(1) The magistrates were entitled to decide that the informations were valid. These, together with the statement of H and the evidence heard during the prosecution’s case, made it quite clear that the case concerned damp and the representations concerning it. A defendant can raise lack of particularity in an information at any time after a charge has been preferred, and before trial.
(2) The informations satisfied r 100. Each described the specific offence and gave adequate particulars so that the appellant had been provided with sufficient understanding of the nature and detail of the charges; it was not necessary to name the employee who had made the representations on both occasions.
(3) For both offences, there was clear, strong evidence against the appellant. It was open to the magistrates to find that statements about a matter prescribed under the 1991 Act in the course of an estate agency business were false or misleading.
The following cases are referred to in this report.
George Wimpey UK Ltd (formerly known as Wimpey Homes Ltd) v Brown (Procurator Fiscal, Hamilton); sub nom George Wimpey UK Ltd v Donaldson; Sweetin v Brown 2003 SCCR 330
R v Aylesbury Justices, ex parte Wisbey [1965] 1 WLR 339; [1965] 1 All ER 602, QB
This was an appeal by the appellant, Dacre Son & Hartley Ltd, by way of a case stated from its conviction by Skipton Justices of offences under the Property Misdescriptions Act 1991 following informations laid by the prosecutor, North Yorkshire Trading Standards.
William Hanbury (instructed by Newstead & Walker, of Otley) appeared for the appellant; Andrew Goodman (instructed by the solicitor to North Yorkshire County Council) represented the respondent.
[1] Giving the first judgment, Fulford J said:
Introduction
[2] On 2 December 2003, the appellant, Dacre Son & Hartley Ltd, was convicted by the Skipton Justices of two offences under section 1 of the Property Misdescriptions Act 1991 (the 1991 Act). A third information was dismissed. The appellant was fined £1,000 on each of the two informations that resulted in convictions and was ordered to pay costs of £1,390. The offences were alleged to have been committed on 28 August 2002 and 4 September 2002 respectively, and the proceedings were initiated against the appellant by way of summons.
[3] The issues raised on this appeal and brought before this court by way of case stated concern the adequacy of the two informations, together with the sufficiency of the evidence presented to the court below in support of them. The appellant argued that the informations laid by the respondent were defective and that the defects were incapable of proper rectification during the trial process. Moreover, it is submitted that a submission of no case to answer should have been upheld at the close of the prosecution case.
Facts
[4] The facts relevant to this appeal as set out hereafter are taken from the findings of the justices. The appellant was the agent with conduct of the sale of premises at 9 Riverside Walk, Airton, North Yorkshire (the property), between April and September 2002 on behalf of the vendor.
[5] Between June and August 2002, Ms Ainsworth Hickman negotiated for the purchase of the property and, although she had noticed some dampness in the dining room, an offer from her was accepted by the vendor in June. Thereafter, she became aware that serious damp affected the property when she visited it with a builder, and it was in due course revealed that there had been movement to the floor at the rear of the property. Ms Hickman received a timber and damp report from the appellant dated 2 August 2001, and shortly afterwards she commissioned an independent specialist report. |page:12|
[6] Ms Hickman launched an unsuccessful attempt, on the basis of those reports, to renegotiate the purchase price downwards. Following a failure to agree on a lower figure, she withdrew from the sale. Subsequently, she faxed a copy of her own report to the appellant during August 2002, in which it was indicated that damp treatment costing in the region of £4,700 would be necessary. The property remained on the market and the appellant continued to act as agent on behalf of the vendor.
[7] On 28 August 2002, Ms Hickman, acting on certain suspicions she had about the marketing of the property, went to a branch office of the appellant in Skipton, together with a friend of hers, Ms Mary Dear. They pretended to be potential purchasers, and, in the course of answering questions about the property, Ms Beverley Cuerden, an employee of the appellant firm, stated that the property did not suffer from dampness. This statement was the subject of the summons alleging that the appellant had made a false statement contrary to section 1(1) of the 1991 Act.
[8] On 4 September 2002, Ms Hickman and Ms Dear returned and asked Ms Cuerden various specific questions about dampness at the property, and particularly if any remedial works might have to be undertaken by a purchaser. They secretly recorded this conversation. Ms Cuerden failed to reveal the full extent of the dampness at the property, and her dissembling, as the prosecution described it, amounted to a misleading statement in the nature of an omission, contrary to section 1(1) of the 1991 Act within the meaning ascribed to the word “misleading” by section 1(5).
[9] During the discussion on 4 September, Ms Cuerden said, inter alia:
I mean you’re always going to get some kind of damp because of the area and the property it is. The thing with this is there hasn’t been any flooding, even with the floods that we had at the beginning of this year which were expected. I mean it’s quite deep is that wall and it is a long way to the river down there, but I mean we are talking about older properties and you are always going to have a certain amount.
[10] She went on to add that she was not an expert and that a certain amount of work in all probability needed to be done to the window frames of the property.
[11] Prior to trial, and in conformity with r 4(1)(a) of the Magistrates’ Courts (Advance Information) Rules 1985, the respondent furnished the appellant with a copy of the written witness statements that the prosecution proposed to rely upon at trial. The statement of Ms Hickman included the following:
Having been so appalled by the whole situation, including the lack of openness and lack of truthful information that was given, on 28th August my friend Mary Dear and I decided to go into Dacre’s and ask about 9 Riverside Walk. None of the staff had previously met me in person so I knew they would not recognise me. We pretended we were interested in 9 Riverside Walk and Goose Eye Mill. I directly asked the receptionist, whose name was Beverley, if either of the properties needed any work doing to them. The reply was no. Referring to Goose Eye Mill: no, because they were in the midst of being converted; and her comments regarding 9 Riverside Walk were that it just needed a bit of painting. No mention of damp. She was then asked, as both of the properties were by a river, was there a problem with damp with either of them. The reply was no. At Goose End Mill it was only a beck and any appropriate work would be covered within the conversion. At 9 Riverside Walk we were told that although it was by a river there was no damp and any work would have been done under the original building regulations anyway. The replies were so convincing, with a big smile and full eye contact. As you can imagine we were furious that after all we had experienced they were still not being upfront with supposedly prospective purchasers. In the light of this we felt even stronger about pursuing the issue under the Property Misdescriptions Act. I decided to visit Skipton again with my friend Mary Dear on 4th September, this time armed with a tape recorder when visiting Dacre’s. We decided to use the same format, interest in both the properties mentioned above. The first receptionist we spoke said that she did not know a lot about the properties. However, her colleague Beverley [Miss Cuerden] had shown a prospective purchaser around 9 Riverside Walk only the night before, this being 3rd September, and therefore passed us over to her. This is the same receptionist with whom we spoke on 28th August. Having been passed over to Beverley we immediately got to the issue of dampness. She said “that you would get some with all mills”. When asked a second time she said “that there had been no flooding and there was no major problems with damp”, although she followed this by saying “she was not an expert”. I would say that the quote of £4,700 is major and Dacre’s were sent a copy of this report on 29th July. When asked if any work was needed she said that a little bit of work was needed to be done to the window frames, but it was a very nice property. Certainly on this second occasion she seemed much more guarded and had also viewed the property herself. However, she was still very convincing… Also, when asked how long the property had been on the market she replied “the sale proceedings did fall through for personal reasons and has been back on the market for three weeks”. She clearly did not want to say exactly how long the property had been on the market in total.
[12] It was the respondent’s case at trial that the statements of Ms Cuerden, as recalled and recorded by Ms Hickman, were as set out above: in the first instance false and in the second misleading. They contended that the material demonstrated that the staff of the appellant, and particularly Ms Cuerden, had knowledge of the existence and extent of damp at the property, thereby negating any potential due diligence defence under section 2 of the 1991 Act.
[13] Ms Hickman gave evidence at trial broadly in conformity with her witness statement, and her account was corroborated by Ms Dear. The senior partner of Dacre Son & Hartley, Mr Nicholas Gee FRICS, gave evidence, as did Ms Cuerden. The latter accepted that it was her voice on the tape of 4 September, and that she was unable to explain why she had said that the last sale had fallen through for personal reasons rather than because of the presence of damp. She maintained that she was not qualified to comment upon the state of the property. Mr Gee, although accepting that estate agents should be honest and should not mislead, emphasised the obligation that rests, as he described it, on a potential purchaser to make his or her own enquiries.
[14] It is convenient, at this stage, to set out the terms of the two informations. They were both laid against the appellant, Dacre Son & Hartley Ltd, and were in the following terms:
[15] (i) On 28 August 2002, at Skipton:
In the course of an estate agency business made a false statement in response to a question regarding the presence of damp in the property known as 9 Riverside Walk, Airton, by giving a verbal assurance that the said property had no problems with damp, when in fact you were aware of such problems in that reports had been prepared at your request on 31st July 2001 and 2nd August 2001, indicating dampness had been found in the property, contrary to Section 1(1) of the Property Misdescriptions Act 1991.
[16] (ii) On 4 September 2002, at Skipton:
In the course of an estate agency business made in response to questions about property known as 9 Riverside Walk, Airton, a misleading statement about the presence of damp in the said property, contrary to Section 1(1) of the Property Misdescriptions Act 1991.
[17] At the close of the respondent’s case, the appellant submitted that there was no case to answer because the informations did not comply with the requirements of r 100 of the Magistrates’ Court Rules 1981 (1981 Rules) in that they did not: (i) state who had made the false or misleading statements, or where those statements were made; (ii) state to whom the false or misleading statements were made; and (iii) particularise the false or misleading statements. Those submissions were rejected, and at the end of the evidence the appellant additionally argued that there was no, or, alternatively, insufficient, evidence to prove these two informations.
[18] The relevant conclusions of the justices were as follows:
(a) that having heard all the evidence for the Respondent at the time we were asked to rule on the correctness or otherwise of the wording of the three informations (namely at the close of the Respondent’s case) we were entitled to treat that evidence as having remedied any defect in the Informations as to detail which might otherwise have been required;
(b) that any challenge to the Informations on these grounds ought properly to have been taken by the Appellant as a preliminary point;
(c) that the Informations contained sufficient detail to comply with Rule 100 in any event in that each clearly referred to dampness being the subject of the allegedly false or misleading statement; |page:13|
(d) that (the) Advance Information served by the Respondent on the Appellant prior to the hearing in compliance with The Magistrates’ Courts (Advance Information) Rules 1985, also remedied any potential defect in the summons by providing, as it did, further and better particulars of the allegations;
(e) that the omission of detail in the Informations as to the person by whom the offence was alleged to have been committed and to whom the statements were made was not, in the circumstances outlined above, fatal;
(f) that, applying the test in R v Galbraith [1981] 2 All ER 1060 73 Cr App R 124, there was a case to answer in respect of all three Informations. Further, that applying the decision in Moran v DPP [2002] EWHC 89 (Admin), we were not obliged to give our reasons for so finding;
(g) that in relation to the first Information, the case had not been proved beyond reasonable doubt in that we could not be sure that Mrs Hickman made the telephone call to Mrs Holland and we were not sure what, if any, conversation took place between them;
(h) that in relation to the second and third Informations the evidence satisfied us beyond reasonable doubt that the offences alleged in the Informations had been committed by the Appellants.
[19] The questions formulated in the case stated for our consideration are as follows:
(i) were we correct in deciding that where a challenge was made to the validity of an Information at the close of the prosecution’s case, we were entitled to have regard
(a) to evidence heard up to that point; and
(b) to detail supplied by way of Advance Information in deciding whether or not to uphold a submission of “no case to answer”?
(ii) were we correct in ruling that each of the three Informations complied, in the circumstances, with Rule 100 Magistrates’ Court Rules 1981?
(iii) were we correct in deciding that there was sufficient evidence upon which to convict the Appellant in respect of the second and third Informations?
Relevant statutory and regulatory framework
[20] Section 1 of the 1991 Act creates two offences of property misdescription and deals with a significant social evil: it is directed at the problem of potential purchasers being materially misled as to the condition of premises marketed by estate agents or property development businesses. Section 1 is in the following terms:
(1) Where a false or misleading statement about a prescribed matter is made in the course of an estate agency business… the person by whom the business is carried on shall be guilty of an offence under this section.
(2) Where the making of the statement is due to the act or default of an employee the employee shall be guilty of an offence under this section; and the employee may be proceeded against and punished whether or not proceedings are also taken against his employer…
…
(5) For the purposes of this section —
(a) “false” means false to a material degree,
(b) a statement is misleading if (though not false) what a reasonable person may be expected to infer from it, or from any omission from it, is false,
(c) a statement may be made by pictures or any other method of signifying meaning as well as by words and, if made by words, may be made orally or in writing,
(d) a prescribed matter is any matter relating to land which is specified in an order made by the Secretary of State.
[21] As regards (d), it is accepted in this case that representations about dampness in a property come within that subsection. Under section 7 of article 2 of the Schedule to the Property Misdescriptions (Specified Matters) Order 1992, a prescribed matter within section 1 of the 1991 Act includes “physical or structural characteristics, form of construction or condition”.
[22] Section 1(1) contains the following notable features: first, liability attaches to the person by whom the business is carried on, rather than to the maker of the statement, if the two are different; second, there is no requirement that either person (the maker of the statement or the person by whom the business is carried on) should know that the statement is false or misleading, or that they were reckless as to whether it was false or misleading; and, third, it is not an ingredient of the offence that the person to whom the statement was made was in any way misled. Further, by virtue of subsections (1) and (2), the “person by whom the business is carried on” or an employee or both can be prosecuted. Here, the prosecution was of the firm only. It follows that the offence is committed regardless of its effect, if any, on one or more members of the public, and omission can constitute a misleading statement. A defendant is entitled to raise, under section 2 of the 1991 Act, the defence “that he took all reasonable steps and exercised all due diligence to avoid committing the offence”.
[23] The general provisions relating to the laying of an information are to be found in rr 4 and 100 of the 1981 Rules. It is r 100 that is relevant to this appeal. Under r 100(1), the following is provided:
(1) Every information, summons, warrant or other document laid, issued or made for the purposes of, or in connection with, any proceedings before a magistrates’ court for an offence shall be sufficient if it describes the specific offence with which the accused is charged… in ordinary language avoiding as far as possible the use of technical terms and without necessarily stating all the elements of the offence, and gives such particulars as may be necessary for giving reasonable information of the nature of the charge.
(2) If the offence charged is one created by or under any Act, the description of the offence shall contain a reference to the section of the Act, or, as the case may be, the rule, order, regulation, byelaw or other instrument creating the offence.
[24] Section 123 of the Magistrates’ Court Act 1980 provides:
(1) No objection shall be allowed to any information or complaint, or to any summons or warrant to procure the presence of the defendant, for any defect in it in substance or in form, or for any variance between it and the evidence adduced on behalf of the prosecutor or complainant at the hearing of the information or complaint.
(2) If it appears to a magistrates’ court that any variance between a summons or warrant and the evidence adduced on behalf of the prosecutor or complainant is such that the defendant has been misled by the variance, the court shall, on the application of the defendant, adjourn the hearing.
[25] I interpolate to observe that there is a wealth of authority to the effect that section 123(1) should not be read literally as meaning that there can never be a challenge to an information, however serious the defect; it all depends upon whether the justice of the situation requires an amendment: see Halsbury’s Laws, vol 27, at p205, and the notes to section 123.
Arguments raised in support of this appeal
[26] It is submitted by the appellant that the particulars contained within the informations were fatally deficient because they did not state who was alleged to have made the false statements or to whom they were made, and that, generally, they did not provide sufficient detail of the case the appellant had to meet. Additionally, as regards the information for 4 September, it is argued that it was not clear whether it was the failure to mention damp or the suggestion that the last sale fell through for personal reasons that founded the misleading statement.
[27] It is therefore submitted that the appellant was not given adequate information as to the detail of the charges. Moreover, it is argued that since damp, as an issue, was mentioned during these conversations, and given that “personal reasons” could have covered “a multitude of reasons”, and including the fact that the seller and purchaser were unable to agree a price that reflected the work required on an old property, anything said by Ms Cuerden was incapable of misleading a reasonable person so as to constitute an offence.
[28] Finally, it is submitted that there is a similarity, at least in part, between the provisions of section 1(1) of the 1991 Act and the protection provided to purchasers of residential and commercial property under the Trades Descriptions Act 1968 and that, in the result, the requirements of specificity as regards informations preferred under both statutes are broadly the same. I shall consider each of those arguments in the context of the questions posed by the justices, to which I now turn.
Questions
[29] First, were the justices correct in deciding that if a challenge is made to the validity of an information at the close of the prosecution’s |page:14| case, they are entitled to have regard both to (a) the evidence heard up to that point and to (b) the material supplied by way of advance information in deciding whether to uphold a submission of “no case to answer”? I observe at the outset that I am surprised at both the timing of the first suggestion that the informations were not sufficiently particularised and the circumstances in which the point had been taken, namely during a submission of no case to answer. These are both issues that I have dealt with at the end of this judgment in the context of certain general remarks.
[30] In answering this first question, in my view, the critical issue for a court to determine when considering alleged defects of the kind complained of here is whether the information as framed created real unfairness. Put otherwise, was the appellant misled or otherwise prejudiced by its wording? In deciding that issue, the justices were undoubtedly entitled to look at relevant extraneous material in order to determine whether such unfairness had arisen.
[31] In this case, the advance information, and, in particular, the part of the statement of Ms Hickman, quoted in extenso above, made the prosecution’s case clear beyond doubt as regards both 28 August and 4 September. The particular false or misleading representations were fully revealed, as was the author of them. This case concerned damp and the representations made about it, and the reasons for the proposed sale falling through were directly related to that issue. The appellant could have been in no doubt, following receipt of that material, as to the case that the prosecution intended to advance. Moreover, the evidence presented at trial was in conformity with the advance information, and therefore merely confirmed the detail of the case that the appellant had to meet. It is right to observe that if critical aspects of the prosecution case that should have been revealed within the information or informations in advance of the trial become clear for the first time during the trial, the position might well be different, and could lead to a conclusion that real unfairness had been created. In my view, that was not the case here. Accordingly, I answer both (a) and (b) in the first question in the affirmative.
[32] Turning to the second question — namely whether the justices were entitled to decide that each of the informations complied in the circumstances with r 100 of the 1981 Rules — the following matters, in clear language, were set out in both informations: (i) the relevant statutory provision, namely section 1(1) of the 1991 Act; (ii) the date of the alleged offence, 28 August and 4 September respectively; (iii) the place where it occurred, Skipton; (iv) core details of the false or misleading information (representations about the lack of damp at the particular property); (v) the premises the representations concerned (9 Riverside Walk, Airton); and (vi) (within the first information) the material that revealed that the representations were false or misleading, namely the reports of 31 July and 2 August 2001.
[33] Those details, for the purposes of the rule, sufficiently set out all the matters that needed to be rehearsed in the two informations, including the elements of the offence and sufficient particulars of them. It is arguable that, as a counsel of perfection, the name of the employee who had made the representations on both occasions, if it had been known at the time, could have been included, but that omission, if such it was, could not in any sense be fatal in this case, not least because it was the business and not the employee that was the subject of the information: the prosecution having proceeded under section 1(1) rather than (2). In any event, the most cursory enquiries by the applicant would have made it clear that Ms Cuerden had been the relevant employee on both occasions.
[34] I have found the comparisons that the appellant has sought to draw with prosecutions under the Trades Descriptions Act unhelpful. The detail required in an information is both offence- and fact-dependent. A decision as to the adequacy of the particulars will depend upon the precise nature of the offence that has been charged and the factual allegations upon which that charge depends.
[35] Finally as regards this second question, we have been taken to George Wimpey UK Ltd (formerly known as Wimpey Homes Ltd) v Brown (Procurator Fiscal, Hamilton) 2003 SCCR 330, a Scottish authority in which this section of the 1991 Act was the subject of consideration by the Appeal Court of the High Court of Justiciary in Scotland. In that case, the court was invited by a late amendment to widen the ambit of the offence that the appellant had to meet, so that it could be convicted of an offence with which it had not originally been charged. On the particular facts of that case, the Court of Appeal found that it would be wrong in principle for the court at first instance to convict, or the Court of Appeal to substitute verdicts, on the basis of the proposed expanded charge. That authority, therefore, is wholly different on its facts from the instant appeal and consequently is of no assistance.
[36] In my judgment, the informations each described the specific offence charged in ordinary language and gave sufficient particulars so that the appellant was provided with reasonable understanding of the nature and detail of the charges. Therefore, the prosecution, correctly, did not apply to amend when these submissions were made at the end of their case. In the premises, I answer the second question in the affirmative.
[37] Finally, I turn to the last question: were the justices correct in deciding that there was sufficient evidence to convict the appellant on these two informations? For both offences there was clear — indeed strong — evidence against the appellant. Given that these are offences of strict liability, and absent any findings favourable to the appellant of due diligence, once the justices accepted the evidence of Ms Hickman, convictions were an inevitability. On the evidence, it was open to the justices to find that statements made about a “prescribed matter” in the course of an estate agency business were false as regards the first information and misleading as regards the second, and that the business was carried on by the appellant. In those circumstances, I answer the third question in the affirmative.
Postscript
[38] Earlier in this judgment, I expressed my surprise at both the timing of the first suggestion by the appellant, that the informations were not sufficiently particularised, and the circumstances in which the point was taken: midway through the trial, as part of a submission of no case to answer. If a defendant considers that the particulars provided in an information are insufficient, the court has the power, at any time after the charge has been preferred, to require the prosecution to furnish it with better and more complete particulars: see R v Aylesbury Justices, ex parte Wisbey [1965] 1 All ER 602.
[39] In my view, if a defendant genuinely considers that lack of particularity in the information (as opposed, for instance, to a defect inherently fatal to the charge) has created the potential for unfairness, for example because of uncertainty as to the case the defendant has to meet, this should usually be raised in advance of the trial so that the court can consider the position. Deliberately deferring the issue until midway through the trial will usually make it materially more difficult for the defendant to complain that the trial is unfair.
[40] I accept the submission of the respondent that the appellant “elected to remain ill-informed”, and I would add, unreasonably so. Furthermore, a submission of no case to answer is conventionally the means by which the court tests whether the prosecution has advanced sufficient evidence to found a conviction, rather than providing a forum for a discussion about the adequacy of the particulars contained in the information or informations. Although there may be a measure of overlap between the two types of hearing, if the true issue is alleged unfairness caused by lack of particularity, a submission of no case to answer is not the appropriate way of raising such a complaint. Any genuine concerns of this kind should usually be raised with the court far earlier.
[41] In all the circumstances, I find that the justices’ approach to this case was faultless, and any arguments to the contrary are bound to fail. I would therefore dismiss this appeal.
[42] Thomas LJ said: I agree.
Appeal dismissed.
