The curious case of losing, rather than gaining, pounds from ice cream

An ice-cream seller's long-running battle with a unitary council over the need for a street trading consent has some important lessons for local authorities, writes Andrew Lawson.

This claim, which originated in 2001, involves an unusual dispute which escalated between an ice-cream seller and a local authority client. The repercussions for local authorities could be serious.

W was a street trader selling ice cream, H, the unitary authority, with responsibility for regulating street trading, issuing street trading consents in return for an annual fee, and monitoring trading via an enforcement officer. Street-trading was overseen by a street-trading panel which drew members from across the authority and would meet on a quarterly basis.

H resolved to remove an anomaly which saw pockets of its area not subject to regulation. H notified W, via its enforcement officer, of an intention to require a street-trading consent be obtained.

This was the start of a dispute which was to last 11 years. W saw the decision as a plan to favour other traders and to drive him out of business. The situation was exacerbated by virtue of both W and the enforcement officer being strong characters. W lodged a complaint against the enforcement officer. Some of the allegations were upheld but, for unrelated reasons, the enforcement officer was offered redundancy which only served to feed W’s suspicions.

Over the course of the next two years, the street-trading panel investigated and introduced street-trading consents to the area in which W traded. W declined to obtain a consent. He was prosecuted and convicted. W appealed on 11 grounds ranging from alleging an unlawful attempt to raise taxation to suggesting the street trading powers had not properly been devolved when H, a unitary authority, came into existence after local government reform in the mid-1990s.

It is said that: If you spread your fire widely enough, you are more likely to hit your target. This is exactly what happened. Although failing on all but one of the grounds of appeal, H was unable, when challenged, to locate the standing orders and committee minutes to evidence the devolving of powers to regulate street-trading.

With no evidence to show H had the power to regulate street-trading, the appeal was allowed on this one ground.

Energised by this victory, W issued various Freedom of Information Act requests and thereafter a claim for damages alleging conspiracy on the part of various officers to cause him financial loss, misfeasance in public office and malicious prosecution, alleging the street trading panel knew, or should have known, that they did not have the power to regulate street trading.

The allegation of conspiracy was struck out at an early stage as with only H as a named defendant, it was unable to conspire amongst itself.

Nevertheless, the claim continued to show classic signs of a conspiracy-led approach, with allegations made against numerous officers, including the head of legal services, as well as other lawyers and numerous departmental heads. A total of 13 witnesses were required from H to rebut all of the allegations.

The allegations were so serious at an individual level to negate any prospect of a mediated outcome and the case proceeded to trial. W wasdirected by the judge at the start of the trial that this was not a public inquiry and evidence would be limited to the remaining allegations of misfeasance and malicious prosecution. W discontinued his claim after one week of a four-week trial.

BLM recovered costs for H in excess of £100,000. W incurred own solicitor costs estimated to be in excess of £300,000. Yet the root cause of the claim, a refusal to pay a street trading fee, would have cost W no more than a few hundred pounds.

Quite apart from demonstrating that ice cream can cause the loss rather than the gain of pounds, the case raised a number of interesting issues:

1. If, as an authority, you exercise a power to regulate something, can you prove the basis for the power? In this instance H could not, simply because of a misplaced box of minutes that ironically was located shortly after the Crown Court appeal.
2. Take care in how you handle Freedom of Information Act requests. Some emails, which did not stand to be disclosed, were redacted to simply leave the addressee and subject matter showing. This all helped fan the flames of the alleged conspiracy.
3. During the process of redacting and complying with the Freedom of Information Act requests, some original copy documents were not retained and BLM was left with only redacted copies. Missing originals will always be music to the ears of those who believe in conspiracy.
4. Be careful what you write. Disclosure led to all of the original files, including those from legal services, being disclosed and the exasperation shown by officers about W and his allegations was obvious in the documents and emails disclosed. Whilst disclosing no improper behaviour it was uncomfortable for some to have their feelings so publicly displayed.
5. Beware of your internal appeals process. In this instance, one sensed there was a desire to make some findings in W’s favour to assist in drawing the complaint to a conclusion. It had the opposite effect.

Above all, this case was an example of a unitary authority client with a legitimate aim (the regulation of street trading across all of an authority’s area) finding its plans hijacked by someone with money to spend and a belief in conspiracy.

The lesson – expect the unexpected.

Andrew Lawson is a partner at Berrymans Lace Mawer. He can be contacted on 0117 933 7703 or by This email address is being protected from spambots. You need JavaScript enabled to view it..