Council operating open market — Nearby retail indoor premises converted into separate self-contained units — Short determinable subleases granted to traders to use units as indoor retail shops — Leases not signed — Whether occupier levying rival market — High Court holding that trading style constituted market — Judgment for council
The local authority had a right to hold a market in Burton-on-Trent dating back to the 12th century and currently did so on Thursday, Friday and Saturday each week. In March 1993 the defendant purchased the lease of the basement, first and second floors of 153-155 High Street, Burton-on-Trent, from Woolworths plc with an option to purchase the freehold up to February 1994. The defendant converted the ground floor into 70 shopping units at a cost of £140,000. Each unit was approximately 10 ft by 10 ft in size and varied in shape. The individual premises were substantial constructions. They were not separately rated. The leases of the individual units were originally short-term concessions with terms expiring in March 1994. The rent was an annual sum payable quarterly in advance and there was no provision for assignment or subletting. The defendant intended to exercise its option to buy the freehold and extend the leases of the individual units if the venture was successful. The council applied to the court for an injunction preventing the defendant from going ahead and trading on Thursday, Friday and Saturday on the basis that it was a rival unauthorised market. With the legal proceedings pending, the defendant made flexible arrangements with traders, in some cases letting them into possession on a daily basis.
Held The council were entitled to the injunction.
1. The owner of a market was under no obligation to provide stalls; his duty at common law was limited to providing space in which buyers and sellers could meet and conduct their trading. Conversely, the owner of a market owed a duty not to prevent the public exercising their common law rights of resorting freely to the market.
2. The essential feature of a rival market was the provision of facilities for a concourse of buyers and sellers and there could be such a concourse where traders sold indoors from structures more permanent than traditional market stalls which might, for the purposes of the law of markets, be shops and not stalls — provided a sufficient degree of control was retained, in particular by granting the sellers little security of occupation to enable the operator from time to time to maintain or renew his invitation to others. There should also be a real coming together of buyers and sellers in one place for a common purpose.
3. Each case had to be judged on its own facts taking into account a number of factors including, but not necessarily excluding, the nature and size of individual units, the nature and sources of the goods, the proximity of individual sellers and the degree of control retained and exercised by the organisers.
4. At present the lease document was not a sure guide to the terms on which the tenants occupied the units. Arrangements with individual traders were in fact flexible and informal and inconsistent with the intended scheme. Traders had been let into possession and were merely licensees. They were free to leave at any time and there was scope for the short-term movement of sellers commensurate with a concourse of buyers and sellers. Accordingly, the council’s action succeeded. However, the defendant was at liberty to change its trading style to the extent necessary for that activity not to constitute a market.
Robert Reid QC and Judith Jackson (instructed by the solicitor to East Staffordshire Borough Council) appeared for the council; Ian Croxford QC and Diana Blackburn (instructed by Williamson & Soden) appeared for the defendant.
