Factual and Procedural Background
This appeal concerns whether the decision of a private company limited by guarantee, Company A, is subject to judicial review and whether Company A constitutes a "public authority" under section 6 of the Human Rights Act 1998. The decision in question, made on 14 November 2001, involved the rejection of an application by Plaintiff to participate in the 2002 Farmers' Markets Programme organised by Company A. The trial judge held that the decision was amenable to judicial review and quashed it, also determining that Company A was acting as a public authority under the 1998 Act. The judge adjourned Plaintiff’s claim for damages. The appeal was brought by Interested Party, Company B, which had initially organised the markets and transferred the function to Company A. Company A did not appeal due to limited resources.
Plaintiff is a local producer who had participated in farmers' markets organised by Company B before the transfer. Company B initially ran pilot markets under statutory powers aimed at promoting economic development. Following success, Company B expanded the programme and later transferred operation to Company A, a limited company set up with Company B's assistance and support. Company A took over the management of the markets starting January 2002, continuing the same criteria and regulations as Company B had applied. Plaintiff’s application to participate under Company A was rejected in November 2001, a decision later found to breach natural justice.
Legal Issues Presented
- Whether the decision of Company A to exclude Plaintiff from the farmers' markets programme is amenable to judicial review.
- Whether Company A qualifies as a "public authority" within the meaning of section 6 of the Human Rights Act 1998 when making such decisions.
Arguments of the Parties
Appellant's Arguments (Company B)
- Company A performs no public function and is akin to private market operators such as shopping mall owners or car boot sale organisers.
- The relationship between Plaintiff and Company A is consensual and private in nature.
- Company A has no statutory underpinning or woven governmental control; the economic development function was not delegated to Company A.
- Company B’s limited assistance to Company A does not transform Company A’s functions into public ones.
Appellee's Arguments (Plaintiff)
- Operating a market accessible to the public on public land renders Company A’s decision amenable to judicial review.
- Precedent cases establish that bodies deciding on market licences exercise public functions.
- Several features of the relationship between Company A and Company B demonstrate that Company A was exercising a public function in making the impugned decision.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Barnsley Metropolitan Borough Council, ex p Hook [1976] 1 WLR 1052 |
Decisions affecting rights to trade at public markets are subject to judicial review due to a public law element. |
Used to demonstrate that market access rights have a public law character regardless of statutory underpinning. |
| R v Basildon District Council, ex p Brown (1981) 79 LGR 655 |
Supports the principle that decisions about market licences have a public law element. |
Referenced to support the public law nature of market licence decisions. |
| R v Wear Valley District Council, ex p Binks [1985] 2 All ER 699 |
Reinforces that denial of market trading rights in public markets is amenable to judicial review. |
Affirmed as good law, underpinning the public law character of decisions affecting public market access. |
| R v Durham County Council, ex p Robinson, The Times 31 January 1992 |
One of the market cases establishing public law elements in market licence decisions. |
Considered among authoritative cases on the public nature of market decisions. |
| R v Birmingham City Council, ex p Dredger (1994) 6 Admin LR 553 |
Supports the proposition that decisions on market licences have public law implications. |
Used to illustrate the public element in market licence decisions. |
| R v Panel on Takeovers and Mergers, ex p Datafin Plc [1987] 1 QB 815 |
Introduced the test that amenability to judicial review depends on the nature of the power and its public consequences. |
Guided the court’s approach to determining whether Company A’s decision was amenable to judicial review. |
| Poplar Housing Association Ltd v Donoghue [2001] EWCA Civ 595; [2002] QB 48 |
Clarified that a private act can become public if it bears a public character or stamp. |
Applied to assess whether Company A’s functions had a public character under the Human Rights Act. |
| R (Heather) v Leonard Cheshire Foundation [2002] EWCA Civ 366; [2002] 2 All ER 936 |
Confirmed that not all functions of charitable or publicly funded bodies are public functions. |
Distinguished Company A’s public function from private acts in similar contexts. |
| Parochial Church Council of the Parish of Aston Cantlow v Wallbank [2003] UKHL 37 |
Provided guidance on hybrid public authorities and the public function test under section 6 of the 1998 Act. |
Used to analyze whether Company A, as a hybrid authority, was exercising public functions. |
| R v Servite Homes and the London Borough of Wandsworth, ex p Goldsmith and Chating [2001] LGR 55 |
Considered the significance of a body’s origin in determining public function status. |
Distinguished Company A’s position due to its origin from Company B. |
Court's Reasoning and Analysis
The court began by examining whether Company A’s decision was amenable to judicial review, focusing on the presence of a "public element" in the decision-making. It acknowledged that Company A is a private, not-for-profit body without statutory powers or woven governmental control, but highlighted several factors indicating a public character:
- Company A took over the assets, goodwill, and operation of farmers' markets previously managed by Company B, a local authority exercising statutory powers to promote economic development.
- The markets are held on publicly owned land with public access, conferring a common law right of access to buyers and sellers.
- The public and local producers depend on Company A for access to these markets, and exclusion from them can significantly affect livelihoods.
- The relationship between Company A and Company B is close, with Company B’s assistance in setting up Company A, providing office space, seconding personnel, and granting discretionary support.
- Precedent cases establish that decisions denying access to public markets have a public law element and are amenable to judicial review regardless of the identity of the market operator.
The court also considered the Human Rights Act 1998 context, noting that the tests for judicial review amenability and for being a public authority under section 6 are substantially the same. It referred to authoritative decisions clarifying that a private act may be public if it bears a public character or stamp, especially when public functions are involved.
Counterarguments that Company A’s functions were private and consensual, and that it lacked statutory underpinning, were found insufficient to negate the public element. The court emphasized that the public interest in regulating access to markets held on public land, combined with the close relationship and transfer of functions from Company B, established Company A as exercising public functions.
In conclusion, the court held that Company A’s decision to exclude Plaintiff was amenable to judicial review and that Company A acted as a public authority within the meaning of the Human Rights Act 1998.
Holding and Implications
The court DISMISSED THE APPEAL, affirming the decision that Company A’s exclusion of Plaintiff from the farmers' markets programme was amenable to judicial review and that Company A was acting as a public authority under section 6 of the Human Rights Act 1998.
The direct effect is that the decision to exclude Plaintiff was lawfully quashed. No new precedent was established beyond confirming that private companies operating public markets on public land, closely linked with local authorities, may be subject to judicial review and human rights obligations when exercising public functions.