Touting in the case of McQuade v Barnes

In a recent case, Balakrishnan Devaraj v Patwant Singh Niranjan Singh & Anor [2005] 4 CLJ 210, a tout tried to enforce an agreement against an advocate and solicitor for cases that the tout had introduced. Justice Hishamudin Yunus, delivering the decision of the Kuala Lumpur High Court, dismissed the appeal, because:

1. Touting is contrary to public policy,
2. Touting is prohibited by the Legal Profession Act,
3. Agreements for touting are illegal under the Contracts Act,
4. Therefore the touting agreement was unenforceable.

However, there is one authority referred to in the judgment that is interesting. Justice Hishmudin referred to McQuade v Barnes [1949] 1 All ER 154 to show that touting is not confined to the legal profession.

Here is a quote from page 216, paras b-f:

Lest it be misunderstood, I must pause to point here that the term ‘touting’ is not confined only to the legal profession. It applies to other callings as well. And this is well illustrated by the case of McQuade v Barnes [1949] 1 All ER 154. In this case, a bye-law of the corporation of the borough of Blackpool provided:

No person shall in any street within the borough of Blackpool, to the obstruction, annoyance, or danger of any person, either verbally or by the distribution of handbills, circulars, or advertisements, tout or importune any person for the purpose of selling any article to or obtaining the custom of such last mentioned person.

The appellant stood on the forefront of a shop premises calling out in a loud voice to persons passing along the promenade:

Come inside. This way for your fish and chips. No waiting.

The appellant was employed by the owner of a shop which adjoins the street. The shop sold fish and chips. The cries annoyed several persons walking on the promenade. The Magistrate’s Court held that the act of the public that were passing by. The Court found him guilty of contravening the bye-law and he was convicted. On appeal, the conviction was upheld by the Division Court.

The question is, does this authority tell us that touting is prohibited in professions other than the legal profession? I don’t think so. I think the authority merely says that touting can be prohibited by statute. (Issue of Strict Liability, more than public policy).

Further Reading:

http://www.google.com.my/search?hs=wIy&hl=en&q=%22strict+liability%22