Skip hired out by owner and found unlit on highway–Owner serves statutory notice of defence stating fact of hire and belief (genuinely held) that lamps had been stolen–Good enough notice, if bench accept it, of a simple defence that offence was attributable to the act or default of the person who hired the skip
This was an
appeal by the London Borough of Barnet against the dismissal by Hendon
magistrates of three informations alleging that the respondents, S & W
Transport Ltd, had left a builders’ skip on the highway unlighted, contrary to
section 31 (4) (a) of the Highways Act 1971.
Mr R Sears
(instructed by R H Williams) appeared for the appellants, and Mr A Hacking
(instructed by Turner & Evans, of Boreham Wood) represented the
respondents.
Giving the
first judgment, MICHAEL DAVIES J said that the skip in question was owned by S
& W Transport, but had been hired by them to North London Contractors Ltd.
The hiring contract provided that North London Contractors (NLC) should be
responsible for the provision of adequate warning lights for the skip. When
served with summonses, S & W Transport served notice on the local authority
under section 31 (7) of the Highways Act stating that the company intended to rely
on the statutory defence afforded by section 31 (6). The substance of the
notice was that the skip was on hire to NLC; that NLC were responsible for
lighting; and that (as S & W Transport then believed) the lamps had been
stolen. There was no clear finding to such effect by the justices, but counsel
for the borough had fairly and frankly conceded that the notice represented
what S & W at that time believed to be the explanation for the failure to
light the skip. It transpired at the hearing, however, that theft of the lamps
was extremely unlikely, and it emerged that the defence which S & W at that
stage were putting forward was that the lack of lighting was due to the act or
default of NLC. The borough took the point that in these circumstances the notice
was defective, and that the magistrates should have granted an adjournment and
taken other steps to regularise the position, and should not have proceeded
with the hearing.
He (his
Lordship) thought that the true construction of section 31 (7) was that the obligation
upon the person charged with an offence under the section who desired to give
notice preparatory to putting forward a statutory defence was to give
information in accordance with the facts then in his possession. It was
conceded that this was what S & W did by their notice. When the matter came
before the magistrates they might have taken the course which, it was urged,
they ought as a matter of law to have done: they might have put S & W on
further terms as to amending the notice, and adjourned the matter. But he
(Michael Davies J) did not think that in the circumstances of the case there
was any obligation on the magistrates to take such a course, because certainly
by that time the prosecutor had all the necessary information which it was the
intention of section 31 (7) he should be provided with by S & W. Indeed,
after the dismissal of the present informations, if the prosecutor had thought
fit, further informations could have been laid, because the matter was still
then in time against S & W. The magistrates were entitled to come to the
conclusion that
the appeal should be dismissed.
LORD WIDGERY
and ASHWORTH J agreed, and an order was made accordingly.
