Factual and Procedural Background
The Appellant had traded for more than three decades every Saturday in an open-air market in The City, selling costume jewellery from a vehicle. On 13 July 1998 the Respondent, The City Corporation, purported to make bye-laws under the Casual Trading Act 1995 designating the existing market space as a “casual trading area” divided into ninety-nine fixed pitches measuring either 10 ft × 6 ft or 6 ft × 6 ft. The Appellant contended that these dimensions could not accommodate his vehicle and would significantly hamper his livelihood.
The Appellant’s concerns were communicated to Company A, an association representing street traders, and legal advice led to High Court judicial-review proceedings. On 28 July 1999 Judge Kelly granted leave to seek (inter alia) certiorari quashing the bye-laws and a declaration that they breached the The City Markets Act 1852. The Respondent filed a statement of opposition raising three objections: lack of locus standi, absence of any breach of the 1852 Act, and failure to pursue the statutory appeal procedure under s. 6(7) of the 1995 Act.
Following a full hearing, Judge Finnegan held that the Appellant had standing and the failure to appeal was not fatal, but he concluded that the bye-laws did not contravene the 1852 Act and refused relief. The Appellant appealed that decision to the present court; the Respondent, although filing no notice to vary, renewed its locus-standi and discretionary-refusal arguments.
Legal Issues Presented
- Whether the designation of a casual trading area under the 1995 Act constituted the establishment of a “market” prohibited by s. 32 of The City Markets Act 1852.
- Whether the Appellant possessed sufficient locus standi to maintain the judicial-review proceedings.
- Whether the court should refuse relief because the Appellant did not pursue the statutory appeal available under s. 6(7) of the 1995 Act.
Arguments of the Parties
Appellant's Arguments
- Section 32 of the 1852 Act plainly prohibits the establishment of any market within the municipal boundary other than those created under that Act; the Respondent’s bye-laws therefore are ultra vires.
- A concourse of buyers and sellers at a fixed time and place is inherently a “market”; the designated casual trading area therefore falls within the statutory prohibition.
- The High Court judge erred by relying on the 1852 Act’s preamble to qualify clear operative words, contrary to A.G. v. Prince Ernest Augustus of Hanover.
Respondent's Arguments
- The 1852 Act sought only to regulate street selling of agricultural produce and to establish a single agricultural market; its prohibitions do not extend to other forms of trading such as that at issue.
- Section 44 of the 1852 Act, which empowers removal only of stalls selling Schedule (C) agricultural goods, confirms the Act’s limited scope.
- Licensed hawkers were expressly exempted by s. 46 of the 1852 Act; the 1995 Act merely modernises that regime, so the bye-laws are consistent with, not contrary to, the 1852 Act.
- In any event, the Appellant lacks locus standi and failed to exhaust the statutory appeal remedy.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| A.G. v. Prince Ernest Augustus of Hanover (1957) AC 436 |
Preamble cannot override the clear operative words of a statute. |
The Appellant relied on this principle, but the court held the operative words (“no market”) must be read contextually and did not support the Appellant’s position. |
Court's Reasoning and Analysis
Judge [Court] began with the text and purpose of the 1852 Act. The preamble and operative provisions showed the legislature intended to curb unregulated street sale of agricultural produce and to establish a single, trustee-run agricultural market. Section 32’s phrase “no market” must therefore be read ejusdem generis with the Act’s subject-matter—i.e., agricultural markets only.
The goods regulated by s. 44 (stall removal) and Schedule (C) were almost exclusively agricultural; if the legislature had wished to ban all other kinds of markets it would have said so expressly. Section 46’s express exemption for licensed hawkers further demonstrated that non-agricultural street trading, separately regulated, was outside the Act’s prohibition.
The court viewed the Casual Trading Act 1995 as continuing the historic regulation of hawkers (earlier governed by the Hawkers Act 1888 and then the Casual Trading Act 1980). Designating a casual trading area under the 1995 Act was therefore consistent with, not repugnant to, the 1852 Act.
Even assuming arguendo that a casual trading area could be a “market,” the court noted that, at common law, a market is a franchise or statutory right to hold a concourse of buyers and sellers. The 1995 Act separately empowers local authorities to acquire or extinguish such market rights; the casual-trading scheme was a distinct statutory construct, not the creation of a market right.
Because the bye-laws did not contravene s. 32, the court found it unnecessary to rule on the Respondent’s alternative grounds (locus standi and non-exhaustion of statutory remedies), although it recorded that an appeal by Company A had been dismissed as out of time.
Holding and Implications
Appeal Dismissed; High Court order affirmed.
Consequently, the Respondent’s 1998 bye-laws remain in force, and the designated casual trading area is valid. The decision resolves the dispute between these parties but does not establish a new general precedent; it turns on the specific historical relationship between the 1852 and 1995 statutes.