Full Case Name:  Regina v. Kirklees Metropolitan Borough Council, ex parte Tesco Stores Limited

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Country of Origin:  United Kingdom Court Name:  Queen's Bench Division Primary Citation:  CO/467/93 Judge Name:  McCowan LJ Judges:  Leonard J McCowan LJ Attorneys:  Counsel: A Collins QC & N Davidson QC for the Applicant; S Isaacs QC & N Galver for the Respondent. Solicitors: Berwin Leighton for the Applicant; Sharpe Pritchard for the Respondent.

Although a local authority may not adopt a policy of not enforcing certain laws or not enforcing them against certain types of parties, it may nevertheless make rational choices with respect to the use of its enforcement powers in order to deploy its limited resources in the most efficient and effective manner.

This is an application for judicial review pursuant to leave granted by the Divisional Court on 24th March 1993.

The decisions in respect of which relief is sought are set out as follows:

(1) Policy decisions by Kirklees Metropolitan Borough Council as to the extent or manner of implementation of its enforcement duty under section 71 of the Shops Act 1950 as to Part 4 of the Sunday Trading Act.

(2) Decision, or threatened decision, of that Council to seek injunction against applicant.

The relief sought is as follows:

(1) A declaration that the policy of Kirklees Metropolitan Borough Council of enforcing the Sunday Trading Provisions Part 4 of the Shops Act 1950 only in the cases of premises and retailers --

          (i) who advertise Sunday opening,

         (ii) in respect of whose opening there has been a complaint to the Council which complaint is judged by the Council to be bona fide, or

        (iii) whose premises are seen to be open on Sundays

is unlawful.

Alternatively it is unlawful unless the Council has appointed inspectors under section 71(2) of the Shops Act and given them adequate instructions to make inspections for the purposes of observing whether any, and if so, what shops are open on Sundays in contravention of the Sunday Trading Provisions.

(2) A declaration that Kirklees Metropolitan Borough Council is in breach of its duty to enforce section 71 of the Shops Act 1950 insofar as its policy as to the enforcement of the Sunday trading provisions of that Act is a policy:

          (a) making no specific provisions for enforcement of those provisions against retailers other than traders known as AG Stanley, Fads, Dixon, Comet, B&Q Plc, WH Smith Do-it-All and the applicant and/or,

          (b) making no or no adequate provision for the detection of Sunday trading.

There was a third relief sought, namely an Order of prohibition, but that was withdrawn at the time that leave was granted by the Divisional Court.

Fourthly, this relief was sought:

An order of mandamus requiring the Council to formulate a lawful policy for the discharge of its duties under section 71(1) and (2) of the Shops Act 1950 with respect to the enforcement of Part 4 of the Act.

In this judgment I shall refer to the applicants as "Tesco" and to the respondents as "Kirklees".

Shops belonging to all six companies referred to in the second declaration sought were visited on Sundays, 28th June and 5th July 1992, and were found to be open for business.

On the 24th August 1992, Kirklees Environment Executive Sub-committee passed a resolution to seek injunctions against the six companies, including Tesco, in respect of its premises in Huddersfield. The writ relating to Tesco's Huddersfield store was issued on the 22nd September 1992, but was not served until the 5th November 1992.

On the 6th January 1993, Tesco undertook to close their Huddersfield store on Sundays and not to reopen it without seven days clear notice. On that basis the application for an injunction against them in respect of that store was adjourned. On the 19th February 1993, Tesco sought leave to apply for judicial review of Kirklees' enforcement policy. Meanwhile, however, Tesco stores elsewhere in the Kirklees area, namely at Batley and Cleckheaton, were opening on Sundays. Accordingly, on 2nd March 1993, Kirklees issued another writ seeking an injunction in respect of those stores.

The Huddersfield store was in fact first opened in December 1991, the Batley store in September 1992, and the Cleckheaton store in November 1992.

The present position with regard to the Batley and Cleckheaton stores is that they continue opening on Sundays.

We were told that Tesco have 355 stores in England of which 193 (54%) normally open on Sundays.

The claim was made, in an affidavit filed on behalf of Tesco, that they had never been convicted in respect of Sunday trading, but it is conceded that that is no longer true as they were convicted of four such offences on one summons before the Norwich Magistrates in July 1993.

Basically what is submitted here by Mr Collins, on Tesco's behalf, is that insofar as Kirklees has a policy under the Act, it is an unlawful policy because it unfairly discriminates between big retailers and small retailers -- chasing the former and letting the latter alone.

I turn to look at the relevant sections of the Shops Act 1950. By section 47:

"Every shop shall, save as otherwise provided by this part of this Act, be closed for the serving of customers on Sunday provided that a shop may be open for the serving of customers on Sunday for the purposes of any transaction mentioned in the 5th schedule to this Act".

By section 59 it is provided that:

"(1) In the case of any contravention of any of the foregoing provisions of this part of this Act the occupier of the shop shall be liable to a fine not exceeding Level 4 on the standard scale".

That figure, we were told, is £2,500.

Next I read section 71(1) and (2). By (1):


"It shall be the duty of every local authority to enforce within their district the provisions of this Act and of the orders made under those provisions, and for that purpose to institute and carry on such proceedings in respect of contraventions of the said provisions and such orders as aforesaid as may be necessary to secure observance thereof."

Subsection (2):


"For the purpose of their duties under the foregoing subsection it shall be the duty of every local authority to appoint inspectors, and an inspector so appointed shall, for the purposes of his powers and duties, have in relation to shops all the powers conferred in relation to factories on inspectors by section 123 of the Factories Act 1937 and that section, and section 125 in the same Act, shall apply accordingly. Any inspector may, if so authorised by the local authority, institute and carry on any proceedings under this Act on behalf of the authority".

Mr Collins says this of section 71. First, he submits that there is a general duty to enforce with no general discretion expressed, although he concedes, as he must, that there is a qualification in the words "as may be necessary to secure observance thereof".

Secondly, he points out that subsection (2) refers to "duties", that is to say the duties both to enforce the provisions of the Act and to institute and carry on proceedings.

Next, I look at the various authorities referred to before us. First, I look at R v Braintree District Council, ex parte Willingham 81 LGR 70. This case concerned the operation of a Sunday market. Three members of the local Chamber of Commerce complained that the Council were not taking proceedings to stop it. Lord Justice Donaldson, as he then was, at page 78 said this:


"For my part I should like to make it clear that nothing has been said in this case to suggest that this is a council which defies the law or does not do their duty as they see it. However, I am quite satisfied that the way in which they see their duty is not in accordance with the Act. They do not have a general discretion to decide whether or not to take steps to enforce the Shops Act 1950. They do not have a general discretion to decide whether it will be expensive or desirable to institute proceedings. Their duty is very clear: they have to enforce the Shops Acts within their district. For that purpose they have a duty to institute and carry on such proceedings in respect of contraventions (which must mean alleged contraventions) as may be necessary to secure observance".

At page 79 Mr Justice Webster said:


"The duty of that authority under section 71(1) is, first of all, to consider, and these matters may have to be done at the same time but not necessarily, whether that conduct prima facie constitutes a contravention of the provisions of the Act. If so, then they have to consider whether it is necessary to institute and carry on proceedings in respect of that prima facie contravention in order to secure observance of the provisions of the Act. If they decide that it is necessary to do so then they have a duty to institute and carry on those proceedings".

Next I look at the case of Stoke-on-Trent City Council v B&Q in the Court of Appeal. That is reported at [1984] 1 Ch 1(1), [1983] 2 All ER 787 (of the former report).

At page 14D Lord Justice Lawton said this:


"There was some evidence in the Stoke-on-Trent case, which may be typical of what is happening in many areas, that it was the policy of that local authority to proceed by injunction against the bigger retailers and warnings against the smaller. This alleged policy was criticised as oppressive at first instance but it is, in my opinion, justifiable if it is effective, as it may be, either by warning off the smaller retailers or by making examples of the bigger ones so as to deter the others.

"At the outset of this judgment I wish to make clear what I regard as irrelevant considerations. First of all section 47 of the Shops Act 1950 is widely disregarded; secondly, that many people want it repealed; thirdly, many people find it convenient to shop for non-exempt goods on Sundays; and fourthly, that with the resources of manpower and money which are available to local authorities many of them could not hope to stop unlawful Sunday trading, save on a selective and spasmodic basis which would properly be regarded as unfair and oppressive. My judicial duty is to apply the law as laid down by Parliament, not to change it. Change is the function of Parliament, not of judges".

Then I look at that case in the House of Lords, reported in [1984] 1 AC 754, [1984] 2 All ER 332, and in particular at the speech of Lord Roskill at page 768G (of the former report), where he said:

"I think the duty of a local authority is correctly summarised by Mr Justice Webster in the concluding sentences of his judgment".

He was there, of course, referring to the sentences in that judgment which I quoted from the Braintree case (See R v Braintree District Council ex parte Willingham, 81 LGR 70).

At page 769A, Lord Roskill continued:


"My Lords, I see no reason why, when considering whether it is necessary to institute and carry on proceedings, the local authority are not entitled to have regard, in relation to the particular case or cases in question, to the financial consequences of any suggestive action. If, for example, there is a serious or doubtful question of law involved which may involve a series of appeals and thus cast a heavy financial burden on rate payers, whatever the result, but especially if the prosecution ultimately fails, I cannot think that the local authority, after taking proper legal advice, is debarred from taking that factor, among others, into account before reaching their final decision whether or not it is necessary to institute and carry on proceedings".

An earlier unreported case was R v East Lindsay District Council, ex parte Woodward, (Unreported) decided by Mr Justice Forbes on 16th February 1981. We have been provided with a transcript of his judgment from which I cite certain passages.

At page 5F he said:


"There must, in any local authority faced with a multifarious list of duties under various statutes and orders, be some discretion as to how that local authority is going to direct its officers to perform those multifarious duties. There is of course a discretion in any of them, it seems to me, as to how they carry out any particular duty given by any particular statute. Although the duty is mandatory, the way in which they carry out their duty is, it seems to me, discretionary. It does not follow, for instance, that because under this Act they are given a duty of enforcement it necessarily means they must automatically prosecute or institute proceedings. There are ways, such as negotiation by receiving undertakings and all sorts of things of that kind, whereby they can perform their duty of enforcement short of taking any formal legal proceedings, or by instituting
prosecutions. As I have indicated, it also seems to me that when a local authority with limited resources, both financial and by way of manpower, has to perform a very wide range of mandatory duties under many statutes, it must be free to say how it is going to deploy its scares manpower in carrying out that number of mandatory duties. It must, it seems to me, be able to say: 'In our discretion we propose to give priority to this or other aspects, and not be met, because necessarily that means less priority is given to some other aspect, with the suggestion that this Court should interfere and give directions to the authority to give higher priority to one statutory duty rather than to another. Of course
this Court will intervene if the local authority sets itself against carrying out its duties. If the local authority says: 'We think Sunday trading is a good idea, so we are not going to take the slightest bit of notice of a statute which says it is not', and says that, 'we have a duty to stop it', if the local authority takes that view, clearly it is wrong and the Court should intervene".

The next passage I cite is at page 8D:

"It seems to me that the Health Committee of the local authority has grappled with the problem with which it had to grapple. It has, as I have indicated, a large number of different statutory duties to perform and it had limited resources of finance and manpower. It had to establish priorities and it established them. The question is whether in, using its discretion in establishing those priorities, the authority has gone wrong".

Finally I cite a passage at the beginning of F on page 9:

"So that, so far as individual shops are concerned, the principle on which the local authority works is because of the scarce resources they do not employ inspectors to go round and detect individual cases of shops which are open on Sundays, making sales which are contrary to the provisions of the Act, I can detect nothing in this case which indicates that this authority is deliberately turning its back on its duty".

Mr Collins submits that Mr Justice Forbes got it wrong in those last passages in the light of the terms of the Act.

Finally I refer to the case of the R v Inland Revenue Commissioners ex parte Mead [1993] 1 All ER 772, [1992] STC 482.

The Revenue decided to prosecute an accountant and some, but not all, of his clients. One of the clients claimed that this was unfair, but failed in his application for judicial review.

Lord Justice Stuart-Smith, in giving the first judgment, had this to say at page 783C.

"It is a principle of public law that an authority charged with the duty of exercising its discretion must do so fairly and consistently. The cases abound with statements to this effect".

He cites a number of authorities. I am not going to read them all out.


"But all these cases have to be considered in the light of their own facts to see what was considered unfair or inconsistent conduct. The crucial factor in the present case is that the Revenue operate a selective policy of prosecution. They do so for three main reasons. First, their primary objective is the collection of revenue and not the punishment of offenders. Second, they have inadequate resources to prosecute everyone who dishonestly evades payment of taxes, and third, and perhaps most importantly, they consider it necessary to prosecute in some cases because of the deterrent effect that this has on the general body of tax payers, since they know that if they behave dishonestly they may be prosecuted.

It is inherent in such a policy that there may be inconsistency and unfairness as between one dishonest taxpayer and another who is guilty of a very similar offence. Nevertheless, while not challenging the validity of the policy, Mr Beloff submits that there must be grafted on to it a requirement to treat all dishonest taxpayers guilty of similar offences in like manner: either all must be prosecuted, or none.

I reject this submission for two reasons. First, it is inconsistent with the policy and cannot be operated consistently with it. You cannot be both selective and treat every case alike. Second, it seems to me to be quite impracticable. How are the Revenue to decide what cases are alike? What is to be the basis of the group cases that have to be considered? Over what period of time are the group to be considered? Are all cases involving forgery to be in one group? Or those involving forgery and false accounting? Are those who make a full disclosure to be in the same group as those who deny they have acted dishonestly, although the Revenue consider there is evidence they have? These questions only have to be posed to demonstrate that it is quite impossible to answer them. Certainly in my judgment Mr Beloff was quite unable to proffer any convincing answer".

Turning to the evidence, Mr Collins placed reliance on a press release issued by Kirklees which said, among other things:

"The reason our attention centres on major retailers at present is because they shrug off fines imposed by the Courts and continue breaking the law. Smaller retailers are deterred by a fine".

I can see nothing wrong with this. It seems good sense.

Mr Collins relied very heavily on an interrogation of a Mr Cuss, Chairman of Kirklees Environment Committee, on a local radio program at 8.00 am on 6th March 1993. I think it is fair to describe the interrogation as a hostile one. I read certain passages in it which are relied upon. Mr Cuss at one stage says:


"Well, what will happen is that we have agreed, because Tesco and Sainsbury's have said they are going to continue to flout the law, that we are going to seek injunction proceedings if they don't come into line.

Questioner: But what about all the other shops in Kirklees which will flout the law blatantly tomorrow?

Mr Cuss: Right, well you're talking about out of town shops, family businesses, that sort of thing. We are highlighting the large multiples because they are the ones they set the tone for Sunday shopping".

After another question, which includes the phrase,

"But surely breaking the law is breaking the law",

Mr Cuss went on:


"I would not want to suggest it was right for anybody to break the law, but we have limited resources and we have decided that the major retailers are the ones that we are going to take a high profile action against".

Later on he said:

"The smaller shops are told when, if they open on Sunday we write to them and explain to them that they are breaking the law, but we are not going to take a hard stand against small corner shops which perhaps involve family members".

In another passage he said:


"And it would not be fair on the small ones to start taking action on them whilst the large ones were still being allowed to flout the law.

Question: Shouldn't it be an even handed approach right across if people are breaking the law?

Mr Cuss: Well let's see what happens with the large stores, and we will take a decision about how well we enforce it for the small ones".

I would not myself attach too much weight to off-the-cuff remarks on the radio of a single councillor, even if he be the Chairman of the Environment Committee.

In any event, he has, it seems to me, sufficiently dealt with the matter in an affidavit sworn on the 23rd April 1993. In paragraph 3 of that affidavit he said this:


"In that paragraph Mr Agar refers to two extracts from an interview which I gave on BBC Radio Leeds. I consider it may assist the court if I explain the two extracts which are referred to.

(4) The first extract to which Mr Agar makes reference is that the Council is 'not going to make a hard stand against small corner shops which perhaps involve family members'. By this statement I meant that the Council would not normally commence injunction proceedings against small corner shops but would, where it was considered necessary, prosecute the proprietors of such premises in the magistrates' court. This is because normally a prosecution in a magistrates' court is sufficient to secure the closure of such corner shops.

(5) The second extract which Mr Agar refers to, namely 'how well we enforce it for the small ones', was also a reference by me to the appropriate means of enforcement of the Act against small corner shops. Over the years the Council has issued a considerable number of written warnings to shops and has prosecuted both large and small retailers. Normally a warning or (if this is ineffective) a prosecution, will deter a small retailer from continuing to trade in contravention of section 47.

(6) With reference to the final comments in paragraph 13 of Mr Agar's affidavit, the Council fully appreciates its duty to enforce the provisions of the Shops Act 1950 as against all retailers who contravene the provisions of that Act. Within its resources, over the years the Council has taken such action as it considers necessary to try and secure that retailers comply with the law.

(7) In the case of certain large retailers such as the applicant, Tesco, it is apparent by reason of their huge financial resources and their refusal to
undertake to comply with section 47 that the only effective means of securing compliance with section 47 is by means of injunctive relief".

The actual policy of the Council is set out in an affidavit of Mr Butterfield, a solicitor in the employment of Kirklees. This is at tab 14 of bundle 1. Paragraph 7 of that affidavit reads:


"Mr Agar, in his first affidavit sworn on this application, suggests on more than one occasion that the Council is wrong to believe that by enforcing the Act by means of injunctive relief against the large retailers who persistently breach section 47, that small retailers will also then be encouraged to comply with the law. However, Mr Ager misunderstands the effect of such action against large retailers. Until the law is enforced against the large retailers and the various 'defences' (which are tested through the court by large retailers) rejected (in particular, motor accessories, sex discrimination and judicial review) the Council is unable to enforce the Act against any retailers, including the smaller retailers.
Tesco is fully aware that when these 'defences' are raised by the larger retailers, the small retailers also seek to rely upon them and to ride on the shirt tails of the large retailers. The effective enforcement of the law is paralysed whilst the large retailer litigates each such issue as far as it possibly can.

(8) It follows that in the current climate, when the large retailers, at every opportunity, are raising new reasons why section 47 should not be enforced by the courts, it is necessary for a Council (such as Kirklees) which wishes to comply with its duty under section 71 and enforce the law, to establish that injunctive relief can be obtained against the large retailers which are persistent offenders in order to encourage the small retailers, who may offend only occasionally (which may be difficult to detect) to 'fall into line' and obey the law.

(9) It follows that I reject Mr Ager's assertion that obtaining injunctive relief against larger retailers who openly advertise the fact that they will not comply with section 47, will have no effect upon the conduct of the smaller retailers. The most sensible use of the Council's resources, if it wishes to enforce the Act in its area as far as it possibly can, is to injunct the larger retailers and to warn, and if necessary prosecute, the small retailers (who will often be deterred by the threat of a £2,500 fine). The widespread disregard of the Shops Act is precisely because the large retailers continually argue that the law is invalid for one reason or another and consequently manage to neutralise the enforcement process. The law is then respected by nobody, small and large retailers alike".

I go on to paragraph 11:


"Accordingly, the Council's general 'policy' is to act upon complaint, when it observes advertisement regarding Sunday trading and when shops are seen to open in contravention of the Act. I would like to make some observations upon these categories of action".

Paragraph 12 reads:


"First, I emphasise that this is only a general policy, to guide environmental health officers. The Council will not fail to act simply because unlawful Sunday trading, which comes to their attention, does not fall within one of these categories".

What is wrong with that policy? On the face of it, it seems very sensible. It is submitted that the big fish are more likely to advertise. However, Kirklees have exhibited examples of advertising by small fish. It is argued again that opening on a Sunday by a big outlet is more likely to be noticed and complained about. That, I am afraid, is the price of being so big and successful.

Mr Collins' real complaint, however, is that Kirklees is not active enough in stamping out Sunday opening. It is not surprising if Kirklees find that observation somewhat ironic since they have been among the most, if not the most, pertinacious enforcers of the Shops Act 1950; whereas Tesco have been breaking the law all round the country and, by that example, encouraging other concerns, large and small, to follow suit.

Is it, however, accurate and fair to suggest that Kirklees have not been active enough? Mr Butterfield deals with this suggestion at paragraph 29 and paragraph 30 of the affidavit which I have already referred to. At paragraph 29 he says:


"Mr Agar states that the Council's policy is such that its intention in effect is likely to be that large retailers will be compelled to close whereas small traders may open without significant risk of action. This assertion is simply false. Action against a small trader may take a wide variety of forms from a verbal warning from an inspector, a written warning or a prosecution. It is rarely necessary to seek injunction relief. The threat of a £2,500 fine is a deterrent. Mr Agar accepts that several small stores had closed by reason of a warning from the Council since the first survey had been carried out. From Tesco's own survey, only 4% of shops in Kirklees were open on two Sundays (ie Sunday 6th September 1992
and Sunday 31st January 1993)".

Paragraph 30 reads:


"The Council does not pretend to have unlimited resources with which to ensure that every shop obeys the Act. Tesco seems to believe that it does. It does not have the manpower to send 60 people out on Sundays in order to carry out the sort of survey carried out by the detective agency employed by Tesco and B & Q. It does the best it can with its limited resources to ensure that the retailers in its area comply with the law. Tesco, of course, does not help it in the Council's task by continually opening on Sundays in breach of section 47".

I need not read the rest of that paragraph.

Mr Butterfield returned to the subject in answering interrogatories in an affidavit sworn on 16th July 1993. He said this in paragraph 12:


"In answer to the tenth interrogatory, namely: 'How many warning letters have been sent by the respondent and to whom, since 26th March 1992, alleging that the addressee has been contravening section 47 of the Shops Act?', 86 warning letters have been sent".

Paragraph 13 reads:


"To the eleventh interrogatory, namely: 'Of those letters, how many have been the subject of a response by the addressee indicating that the trader will cease the activity of which the letter complained?', no letters were received indicating that they would cease unlawful Sunday trading. This was not entirely surprising in view of the large retailers continued challenges to the validity of section 47 of the Shops Act between April 1988 to date. I am informed that inspections were carried out of 71 of the shops to which warning letters had been sent. I am informed, and I verily believe, that of those 71 shops, only 31 were open and only 11 of those were seen by them to be open for the sale of goods not mentioned in the fifth schedule to the Shops Act 1950. Proceedings are already in force in respect of three of those retailers and appropriate legal action will be taken against the others".

He added this at paragraph 16:


"Further, I am advised by Janet Russell, Environmental Services Manager, and believe that it is her experience that when effective enforcement action is taken against the large retailers (usually by means of injunction), the publicity which is given to such action results in many small retailers choosing to comply with the law also. Indeed, after High Court proceedings have been successfully brought by the Council against larger retailers (for example, after the House of Lords case against Wickes), I have been contacted (as have other Council officers as I am advised by them) by smaller retailers enquiring whether such enforcement action would also be taken against them. Upon being informed that enforcement
action would be taken against all retailers, whether big or small, those retailers have closed their premises without the Council needing to take action against them".

I see nothing unsatisfactory in these answers subject to the resources available to Kirklees. Mr Butterfield dealt with those in his earlier affidavit in tab 14 of bundle 1. In paragraphs 16 to 18 he pointed out that the Environmental Services Department is divided into various sections, one of these being Occupational Health which is responsible for enforcement of the Shops Act 1950. The Occupational Health Section is comprised of twelve people including four part-time employees. As to the whole Environmental Services Department, that is responsible for enforcing 37 Acts of Parliament.

It continued at paragraph 19:


"The Occupational Health Section is responsible for work connected with the Health and Safety at Work Act 1974, Shops Act 1950, Local Government (Miscellaneous Provisions) Act 1976, Local Government (Miscellaneous Provisions) Act 1982, Zoo Licensing Act 1981, Animal Boarding Establishments Act 1963, Riding Establishment Act 1964, Pet Animals Act 1951 and all regulations made under these Acts".

Paragraph 20 reads:


"Accordingly, it is no easy matter for the Council to secure 100% compliance with section 47 in its administrative area. However, since 1981 the Council has brought over 300 prosecutions before the Magistrates' Court. Hundreds of warning letters have been sent to traders, small and large alike, warning of illegal Sunday trading. There are 4,139 shops within the Council's administrative area. The surveys relied upon by Tesco suggest that in January 1993, 496 shops were open on Sundays (although the Council does not accept that all of these were open illegally, see my remarks in paragraph 13 above)".

Paragraph 21:


"Of course, the Council is nonetheless investigating all of these alleged breaches of the Act. The Council has to satisfy itself that contraventions
of section 47 are taking place and it is not sufficient simply to act on Tesco's say so".

Mr Collins will not accept that the resources argument has any validity. He submits quite simply: "They must have enough inspectors to discover all the infringers and take action against them".

I return to the main thrust of Mr Collins' argument. He said:


"We do not seek to argue that the mere fact that injunction proceedings are taken against us and not against others proves that Kirklees are acting unlawfully. What we complain of is a policy that the big fish should be proceeded against and not the little ones. That is unlawful discrimination". He added: "I do not suggest that they must either prosecute all at the same time or none at all, but they must have a policy to ensure that section 47 is complied with. That is to say, that every single infringer is chased, though not necessarily by proceedings, because a warning may be enough to scare off the more timorous. All must be shut down or none".

I find myself unable to accept Mr Collins' arguments. In the first place, I do not accept that it is shown that Kirklees has a policy of not taking action against small retailers. Secondly, I view his suggestion that all retailers must be shut down, or none, as impracticable. Thirdly, I believe that it is legitimate for this Court to take into account the scarcity of Kirklees' resources and the many competing statutory duties to be catered for with those resources. Fourthly, within the limits thus imposed I consider that Kirklees have performed their duties under the Act properly. Kirklees' policy is, in my judgment, both fair and sensible and it meets their obligations under section 71 of the Act.

As to the decision to institute proceedings against Tesco, I consider it to have been a rational one and, indeed, one that it was its duty to take, pursuant to section 71 of the Act, as being necessary to secure observance of the provisions of the Act.

For these reasons I would hold that the application should be dismissed.

I add only this. If I had thought there was substance in Tesco's complaint, I would still not have thought it an appropriate case in which to grant the relief sought having regard to their plain unwillingness to comply with the law as laid down in the Shops Act 1950.

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