Pharmaceutical Society of Great Britain v. Boots Cash Chemists [1953] 1 QB 401, Court of Appeal

Section 18(1) of the Pharmacy and Poisons Act, 1933 provided that:

‘it shall not be lawful—(a) for a person to sell any poison included in Part I of the Poisons List, unless—(i) he is an authorized seller of poisons; and (ii) the sale is effected on premises duly registered under Part I of this Act; and (iii) the sale is effected by, or under the supervision of, a registered pharmacist.’

The plaintiffs brought an action against the defendants in which they alleged that the defend[1]ants had infringed section 18(1)(a)(iii) of the Act on the basis that the sale of poisons in the defendants’ self-service store was not effected by, nor did it take place under the supervision of, a registered pharmacist. The pharmacist was not present at the cash desk. He was stationed close to the poisons section and in view of the cash desks and he was authorized by the defendants to prevent the sale of any drug (although customers were not aware of the fact that he was so authorized). On 13 April 1951 two customers purchased medicines which fell within the scope of the Act and the issue for the court was whether or not these sales were effected by or under the supervision of a registered pharmacist. The Court of Appeal, affirming the decision of Lord Chief Justice Goddard, concluded that they had been so effected.

Somervell LJ

This is an appeal from a decision of the Lord Chief Justice on an agreed statement of facts, raising a question under section 18(1)(a)(iii) of the Pharmacy and Poisons Act, 1933. The plaintiffs are the Pharmaceutical Society, incorporated by Royal charter. One of their duties is to take all reasonable steps to enforce the provisions of the Act. The provision in question is contained in section 18.

[His Lordship read the section and stated the facts, and continued]

It is not disputed that in a chemist’s shop where this self-service system does not prevail a customer may go in and ask a young woman assistant, who will not herself be a registered pharmacist, for one of these articles on the list, and the transaction may be completed and the article paid for, although the registered pharmacist, who will no doubt be on the premises, will not know anything himself of the transaction, unless the assistant serving the customer, or the customer, requires to put a question to him. It is right that I should emphasize, as did the Lord Chief Justice, that these are not dangerous drugs. They are substances which contain very small proportions of poison, and I imagine that many of them are the type of drug which has a warning as to what doses are to be taken. They are drugs which can be obtained, under the law, without a doctor’s prescription.

The point taken by the plaintiffs is this: it is said that the purchase is complete if and when a customer going round the shelves takes an article and puts it in the receptacle which he or she is carrying, and that therefore, if that is right, when the customer comes to the pay desk, having completed the tour of the premises, the registered pharmacist, if so minded, has no power to say: ‘This drug ought not to be sold to this customer’. Whether and in what circumstances he would have that power we need not inquire, but one can, of course, see that there is a difference if supervision can only be exercised at a time when the contract is completed.

I agree with the Lord Chief Justice in everything that he said, but I will put the matter shortly in my own words. Whether the view contended for by the plaintiffs is a right view depends on what are the legal implications of this layout—the invitation to the customer. Is a contract to be regarded as being completed when the article is put into the receptacle, or is this to be regarded as a more organized way of doing what is done already in many types of shops—and a book[1]seller is perhaps the best example—namely, enabling customers to have free access to what is in the shop, to look at the different articles, and then, ultimately, having got the ones which they wish to buy, to come up to the assistant saying ‘I want this’? The assistant in 999 times out of 1,000 says ‘That is all right’, and the money passes and the transaction is completed. I agree with what the Lord Chief Justice has said, and with the reasons which he has given for his conclusion, that in the case of an ordinary shop, although goods are displayed and it is intended that customers should go and choose what they want, the contract is not completed until, the customer having indicated the articles which he needs, the shopkeeper, or someone on his behalf, accepts that offer. Then the contract is completed. I can see no reason at all, that being clearly the normal position, for drawing any different implication as a result of this layout.

The Lord Chief Justice, I think, expressed one of the most formidable difficulties in the way of the plaintiffs’ contention when he pointed out that, if the plaintiffs are right, once an article has been placed in the receptacle the customer himself is bound and would have no right, without paying for the first article, to substitute an article which he saw later of a similar kind and which he perhaps preferred. I can see no reason for implying from this self-service arrangement any implication other than that which the Lord Chief Justice found in it, namely, that it is a convenient method of enabling customers to see what there is and choose, and possibly put back and substitute, articles which they wish to have, and then to go up to the cashier and offer to buy what they have so far chosen. On that conclusion the case fails, because it is admitted that there was supervision in the sense required by the Act and at the appropriate moment of time. For these reasons, in my opinion, the appeal should be dismissed.

Birkett and Romer LJ delivered concurring judgments.

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