The Queen on the application of Tesco stores limited v City of London Corporation

Introduction

In Tesco Stores case (Tesco Stores Limited v City of London Corporation (2010) EWHC 2920 (Admin), 2010), Tesco Stores was convicted of three offences for breaching Food Safety Law and also fined £23,000. The offences originated from the rat infestation which led to the customer finding a rat in a bagel she bought from the store. The Tesco Stores were taken to the court by the City of London’s Environment Health Department who were reported to by the customer who bought the bagels. Although, the defence of due diligence was used by the Tesco Stores, the court held that there was a failure to do due diligence and therefore, under the relevant food safety legislation, the case was decided by the court (Tesco Stores Limited v City of London Corporation (2010) EWHC 2920 (Admin), 2010).

The legislations involved in the case on the basis of which the prosecution was carried out were: the Food Safety Act 1990 and the Food Hygiene (England) Regulations 2006. The prosecution showed before the court how the bagels bought by the customer had been gnawed by rodents and the environmental health officer found rodent droppings on the shelves of the premises of the Tesco Stores from where the bagels had been bought.

The prosecution based its case on the Food Safety Act 1990. Section 8 of the Act makes the selling of food that is not in compliance with food safety requirements as an offence. Section 7 makes the rendering of food meant for consumption as injurious to health to be punishable offences. As the evidence of the bagels being gnawed by rodents as well as the evidence of rodent droppings was found, the case against Tesco Stores under the Food Safety Act 1990 as well as the Food Hygiene Regulations 2006, was strong.

The prosecution also used Food Hygiene (England) Regulations 2006 to charge Tesco Stores for offences under the Regulations. Section 17 of the Regulations provide for offences. Schedule 2 of the Regulations provide that food business operators, must adopt certain specific hygiene measures as per Article 4(3) of Regulation 852/2004.

Tesco Stores took a due diligence defence and they contended that there was a reasonable system in place to avoid food safety breaches as a rat infestation and the store had reported to Rentokil about the rat infestation but Rentokil failed to update the store on the action required to deal with the rat infestation. The defence of due diligence is provided under section 21 of the Food Safety Act 1990. This allows the defendant to escape liability under the Act if he can prove to the court that he employed due diligence in his activities. The defence of due diligence is also provided under the Food Hygiene (England) Regulations 2006, section 11.

Despite the due diligence defence, it was found that Tesco staff failed to follow the stock rotation system to check storage sufficiency. Furthermore, apart from informing Rentokil, there was no report logged in the pest control logbook. The court held that all reasonable precautions and all due diligence needs to be taken and whether it has been done requires an effective system of diligence to be observed and followed (Tesco Stores Limited v City of London Corporation (2010) EWHC 2920 (Admin), 2010). In the present case, the court held that due diligence was not observed in the actions of Tesco Stores Limited and therefore, the prosecution was successful and Tesco was made to pay a fine of £23,000.

An earlier case has defined diligence as the opposite of negligence (Tesco Supermarkets Ltd v Nattrass [1972] AC 153 - S 24 TDA., 1972). This implies that defendant should be able to prove that his actions subscribed to a standard of care in order to show that he has maintained due diligence. The due diligence defence could not be accepted in the case because, it could not be shown that Tesco had exercised due diligence. On the contrary, environmental health officer found evidence of lack of due diligence and hygiene requirements. Due diligence defence can help the defendant escape liability only if he can prove that all reasonable precautions have been taken by the defendant.

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