R (on the application of Corporation of London) v Secretary of State for Environment, Food & Rural Affairs & Others

 

The Message

The Secretary of State was entitled to consent to the sale of fish and meat at Covent Garden Market provided that did not constitute a fish and meat market.



The Case

This case concerned London’s three very ancient markets. The Corporation of London owns Smithfield Market (the meat market) and Billingsgate Market (the fish market). Under common law those markets are entitled to protection from competition by any rival market held within a distance of 7 miles.

Covent Garden Market (or the New Covent Garden Market as it is now called) is well known for the sale of horticultural produce, flowers, fruit and vegetables. The market is regulated by the Covent Garden Market Act 1961 and is owned by the Covent Garden Market Authority (CGMA), a statutory corporation established by the Act. Importantly, Covent Garden is within 7 miles of Smithfield and Billingsgate Markets.

The primary statutory duty of CGMA is to provide facilities for the sale of horticultural produce, but CGMA also has the power “to carry on all such other activities as it may appear to CGMA to be requisite, advantageous or convenient in connection with the discharge of their duties or with a view to making the best use of their assets”. However, CGMA would require the Secretary of State’s consent.

CGMA was anxious to have the power to authorise face-to-face trading in meat or fish. By letter, the Secretary of State purported to provide consent to CGMA granting leases to traders at Covent Garden Market allowing them to sell fish or meat. The letter stated that such consent was not to be taken as granting any market rights. It did not authorise a meat or fish market.

The Corporation of London challenged the consent, fearing that meat and fish trading at Covent Garden Market would compete with Smithfield and Billingsgate. The Corporation argued that CGMA did not have the power to allow tenants to engage in face-to-face trading in meat or fish at 2 Covent Garden Market. Also the Secretary of State should not have consented to CGMA allowing such trading.

The issue for the Law Lords was whether the Act regulating Covent Garden Market enabled the Secretary of State to consent to face-to-face trading in meat or fish.

The Lords held that the Secretary of State could consent to such activities. They said that it cannot be right that any activity by CGMA at Covent Garden Market that would be in competition with Smithfield or Billingsgate would for that reason alone be prohibited. The proprietor of a market cannot complain about competition unless the competition constitutes a rival market, the rival is trading within the area in which the proprietor is entitled to protection from competition and finally the competition is sufficiently substantial to constitute in law a disturbance to the proprietor’s market.

There was no interference with the Corporation’s market rights since the Secretary of State did not consent to a fish or meat market and CGMA could not rely on the consent to hold such a market.