Alary v Cork County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 24 July 2018
• Neutral Citation: [2018] IEHC 544
• Docket Number: [2018 No. 59 J.R.]
• Court: High Court
• Date: 24 July 2018

[2018] IEHC 544

THE HIGH COURT

JUDICIAL REVIEW

Noonan J.

[2018 No. 59 J.R.]

BETWEEN

OLIVIER ALARY

APPLICANT

AND

CORK COUNTY COUNCIL

RESPONDENT

Casual trading – Trading without a licence – Judicial review – Applicant seeking judicial review – Whether under the terms of Magna Carta Hiberniae the applicant had a common law right to trade without a licence

Facts: The applicant, Mr Alary, on the 30th September, 2016, engaged in casual trading by selling his baked goods at a public market at Wolf Tone Square in Bantry, County Cork. He did not possess a casual trading licence as required under the terms of the Casual Trading By-Laws Bantry 2014 and consequently was prosecuted for the offence of trading without a licence. He was convicted in the District Court of that offence and he appealed to the Circuit Court. His appeal was heard in Bantry on the 21st July, 2017 when His Honour Judge Riordan affirmed the conviction and fine of €100. The applicant sought an order quashing that conviction. In his statement of grounds, the applicant complained that other persons without casual trading licences on the relevant dates were not prosecuted unlike the applicant. Leave to seek judicial review was granted on the 22nd January, 2018, some six months after the date of the applicant’s conviction and thus outside the three month time limit provided for in O. 84. The applicant sought an extension of time on the basis that he had originally understood that the correct legal route for him to pursue was by way of an appeal from the Circuit Court to the High Court whereas no such appeal lies. However, by the time the applicant became aware of this, the three month period had expired but he formed the intention to challenge the ruling within the requisite period. In a further affidavit sworn on the 14th May, 2018, and entitled “supplement of statement of ground for a judicial review”, the applicant purported without leave of the court to introduce new grounds for seeking judicial review. No liberty was sought or granted to introduce such new grounds some nine months after the date of his conviction and the respondent, Cork County Council, objected to any reliance by the applicant on those grounds. The only reason advanced by the applicant for his failure to raise those grounds originally was that as a lay litigant, he was unaware of the fact that he had to obtain the leave of the court to introduce new grounds. A substantive new ground was raised by the applicant in May, 2018; the applicant claimed that under the terms of Magna Carta Hiberniae he had a common law right to trade without a licence.

Held by the High Court (Noonan J) that, in circumstances where the respondent did not contest the applicant’s right to an extension of time, it proposed granting such extension. Noonan J held that the applicant had advanced no good and sufficient reason for failing to raise the grounds relied upon ab initio. He was satisfied that the applicant was not entitled to an extension of time to rely upon the new grounds. He noted that the laws of the State derive from the Constitution and that legislation such as the Casual Trading Act 1995 enjoys a presumption of constitutionality. Insofar as the applicant purported to assert that this legislation was in some way overborne by the provisions of Magna Carta Hiberniae, if it applies at all, Noonan J held that this contention was unsustainable.

Noonan J held that he was satisfied that the applicant had not made out any of the grounds either on which leave was granted, or indeed the additional grounds pleaded late and he accordingly dismissed the application.

Application dismissed.

EX TEMPORE JUDGMENT of Mr. Justice Noonan delivered on the 24th day of July, 2018

1 The applicant is a French national who resides in Edinburgh. He is an artisanal baker and from time to time sells his produce in public places.

2 It is common case that on the 30th September, 2016, a Friday, the applicant engaged in casual trading by selling his baked goods at a public market at Wolf Tone Square in Bantry, County Cork. He did not possess a casual trading licence as required under the terms of the Casual Trading By-Laws Bantry 2014 and consequently was prosecuted for the offence of trading without a licence. He was convicted in the District Court of this offence and he appealed to the Circuit Court. His appeal was heard in Bantry on the 21st July, 2017 when His Honour Judge Riordan affirmed the conviction and fine of €100.

3 In these judicial review proceedings, the applicant seeks an order quashing that conviction. In his statement of grounds, the applicant makes a number of complaints, the first of which is that other persons without casual trading licences on the relevant dates were not prosecuted unlike the applicant. Apart from that, the primary ground raised in the applicant's statement of grounds is that at the date and place in question, the applicant was entitled to avail of a common law market right to trade which he claimed derived from a patent granted in 1679 by King Charles II to the Earl of Anglesey which permits market trading in Bantry to take place at Wolf Tone Square on Wednesdays...