Exclusive statutory market right owned by city council — Two market rights licensed by council — Common law protection for markets within 6 2/3 miles — Rival market held within 5 3/4 miles of city boundary — Whether council entitled to protection from disturbance — Determination of limit of protection
The city council has the exclusive statutory right to hold retail markets within the boundaries of the city under the Birmingham Corporation (Consolidation) Act 1883. Under its rights, it has licensed the holding of two general retail markets within the city. The defendants held a general market at the Black Boy Inn, Knowle, Solihull. This is only 5 3/4 miles from the city boundary, but is more than 6 2/3 miles from the licensed markets.
The city council commenced the present proceedings alleging a disturbance of their market rights. They sought determination of a preliminary question as to whether their right to have their market rights protected extended to a limit of 6 2/3 miles from their city boundary or to only 6 2/3 miles from the licensed markets.
Held At common law the owner of a market right granted by franchise from the Crown was entitled to protection from rival markets within 6 2/3 miles; it must be assumed that the owner of a statutory right enjoyed the same area of protection. That distance was one third of a Roman dieta, or day’s march, giving a third of day to journey to a market, a third of day at the market and a further third of day to journey home. In principle the radius of protection should be measured from the place of the licensed markets. There was no basis for protecting the area within which the owner of market rights might hold markets unless one was established.
The monopoly rights of market were anomalous and the rights of protection should not be extended unless the legal authorities compelled that conclusion; they did not. Accordingly the city council were entitled to protection within 6 2/3 miles of their licensed markets and not 6 2/3 miles of their city boundaries.
Stoke-on-Trent City Council v W & J Wass Ltd
[1988] EGCS 121 considered.
Nicholas Patten QC (instructed by Sharpe Pritchard, for the solicitor to the city council) appeared for the plaintiffs; the defendants did not appear and were not represented.
