The appellant company, as a group holding company, was the "proprietor" of a food business within the meaning of s.53 Food Safety Act 1990 for the purposes of unchallenged breaches of reg.4(1) Food Safety (General Food Hygiene) Regulations 1995 in respect of a public house.Appeal by way of case stated from a decision of the Crown Court at Chelmsford dismissing the appellant company's appeal from the decision of the magistrates' court that the company was "the proprietor of a food business" for the purpose of unchallenged breaches of reg.4(1) Food Safety (General Food Hygiene) Regulations 1995 SI 1995/1763. Following a visit in 2001 by environmental health officers to a public house called the "Moorhen", five informations alleging breaches of the regulations were preferred against the appellant company as the proprietor of the food business carried on there. The company was a holding company for 28 other companies all of which were separate legal entities. One of its subsidiaries ('Retailing') was the operating company in respect of public houses including the Moorhen. The company argued that it was not the correct defendant because it was not the "proprietor of the food business" within the meaning of s.53(1) Food Safety Act 1990 and did not carry out any of the activities within the definition of a food business in reg.2 of the regulations. It had no employees, did not handle food or offer it for sale and all the evidence pointed to Retailing being the exclusive proprietor. Retailing owned the premises and the equipment where the food was prepared and the proceeds of sale of the food went into its bank account. The Crown Court rejected the company's argument holding that as a matter of common sense the company was carrying on a food business as, overall, the activities of the company went a great deal further into the realms of control and involvement than a mere shareholder role. The question stated by the Crown Court was whether it was correct in law in finding that the defendant was a food proprietor within the meaning of s.53(1) Food Safety Act 1990 in respect of the Moorhen public house.HELD: (1) The proprietor did not have to be the owner of the business although he could be. (2) The proprietor did not have to be involved in its day to day running provided it could be said on the evidence it was the person by whom the business was carried on. (3) Such a person could be an individual or a limited company. (4) On the basis of that definition there could be more than one proprietor. (5) It was not necessary for a proprietor to carry out any, let alone all, of the functions which appeared in the definition of "food business" in reg.2. (6) Once it had been established that the business in question was a food business the only remaining issue was whether the defendant was the proprietor. (7) The Crown Court on the evidence adduced before it was entitled to be sure that the appellant company was carrying on the business and was the proprietor and correct defendant. (8) In deciding whether the evidence disclosed that the company was carrying on a food business, the court was entitled to make a realistic assessment of the actual role of the company in the group. It was entitled to bear in mind that there might be much involved in a food business which fell outside the purely physical processes listed in reg.2 of the regulations. The Crown Court carried out a careful analysis of the evidence before it. It had placed considerable weight on what had been said in the company's annual report and had been entitled to so do. It came to the conclusion that the company had done much more than simply act as a shareholder. It had taken an independent and active role in the management of the business. The Crown Court was right to find as a matter of common sense that the appellant company was carrying on the food business.Appeal dismissed.

[2003] EWHC 2852 (Admin)

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