Balkan Tours Ltd v Minister for Communications

• Jurisdiction: Ireland
• Judge: Mr. Justice Lynch
• Judgment Date: 01 January 1988
• Neutral Citation: 1987 WJSC-HC 27
• Docket Number: No. 64 SP Court 6/1986
• Court: High Court
• Date: 01 January 1988

1987 WJSC-HC 27

THE HIGH COURT

No. 64 SP Court 6/1986

BALKAN TOURS LTD v. MIN COMMUNICATIONS

IN THE MATTER OF THE TRANSPORT (TOUR OPERATORS

AND TRAVEL AGENTS) ACT 1982

BETWEEN

BALKAN TOURS LIMITED

PLAINTIFFS

AND

THE MINISTER FOR COMMUNICATIONS

DEFENDANT

Citations:

GLOVER V BLN LTD 1973 IR 388

RSC O.102

TRANSPORT (TOUR OPERATORS & TRAVEL AGENTS) ACT 1982 S9(2)

TRANSPORT (TOUR OPERATORS & TRAVEL AGENTS) ACT 1982 S9(3)

TRANSPORT (TOUR OPERATORS & TRAVEL AGENTS) ACT 1982 S9(4)

TRANSPORT (TOUR OPERATORS & TRAVEL AGENTS) ACT 1982 S8(2)(6)

Synopsis:

LICENCE

Termination

Grounds - Appeal - High Court - Function - Real situation at time of termination - Travel agent's licence - Plaintiff travel agents had poor record of compliance with conditions of expired licence issued by defendant Minister - In October, 1986, the plaintiffs made a late application for the renewal of their licence - On 10/12/86 the defendant issued to the plaintiffs a new licence which was due to expire on 31/10/87 - The new licence was issued subject (inter alia) to a condition that a copy of the licence should be printed on all the plaintiffs" brochures - The plaintiffs distributed to their agents 20,000 copies of a brochure which contained a copy of a licence which was not a copy of the new licence which had been issued to the plaintiffs - On 23/1/87 the defendant revoked the plaintiffs" new licence pursuant to s.8(2)(b) of the Act of 1982 - In revoking the licence, the defendant relied upon the said breach of condition and not on the earlier failures of the plaintiffs to comply with the conditions of the expired licence - The plaintiffs" affidavits, filed in support of their special summons, established that the plaintiffs" printers, without the knowledge or authority of the plaintiffs, had used the licence of a third party as a specimen when setting the print of the brochure in anticipation of the arrival of the new licence; and had intended to amend the copy licence upon such arrival - The printers had negligently failed to make the required amendments and the plaintiffs had failed to check the copies of the brochures before they were distributed - Held that, while he might be confined to the breach of condition on which he had relied, the defendant was entitled to take into account the earlier failures by the plaintiffs when he was considering the significance of the breach - Held that the plaintiffs had not given the defendant, before the revocation, any satisfactory explanation of their breach of the condition and that, accordingly, the defendant had been justified in seeking to revoke the licence in the circumstances then known to him - Held that the court was satisfied that plaintiffs" breach of the condition had not been a deliberate one and that, in such circumstances, the revocation of the plaintiffs" licence would be a disproportionate consequence of their default - Held that the plaintiffs" appeal should be allowed upon the terms specified in the judgment of the court - Rules of the Superior Courts, 1986, order 102 - Transport (Tour Operators and Travel Agents) Act, 1982, ss.8, 9 - (1986/64 Sp - Lynch J. - 18/3/87) - [1988] ILRM 101

|Balkan Tours v. Minister for Communications|

1 Judgment of Mr. Justice Lynch delivered the 18th day of March 1987.Mary P. O'Donoghue Registrar

2 This is an appeal brought by the Plaintiffs against a decision of the Defendant of the 23rd of January 1987 to revoke a tour operator's licence and a travel agent's licence granted to the Plaintiffs on the 10th of December 1986 and expressed to subsist until the 31st October 1987. The licences were granted, the decision to revoke them was made, and this appeal has been taken to the High Court pursuant to the provisions of the Transport (Tour Operators and Travel Agents) Act 1982.

3 The matter comes before the Court by way of special summons grounded on a number of affidavits. The relevant affidavits on behalf of the Plaintiffs were sworn by Mr. James Michael Lynn on the 25th of January 1987 and on the 17th of February 1987. The relevant affidavits on behalf of the Defendant were sworn by Mr. Seamus Glynn on the 27th of January 1987 and on the 25th of February 1987. There were two other affidavits sworn by Mr. Glynn on the 30th of January and the 20th of February 1987 and one affidavit sworn by the Plaintiffs" solicitor on the 28th of January 1987 but these affidavits are not now relevant as they dealt with arrangements for interim trading by the Plaintiffs pending the determination of this appeal and those matters have been resolved so that the Plaintiffs have been lawfully trading as tour operators and travel agents in the meantime.

4 The facts appearing from the relevant affidavits are as follows. The Plaintiffs are a company incorporated in Northern Ireland. They have carried on business as tour operators and travel agents in the Republic of Ireland since about 1978 formerly at Cathal Brugha Street Dublin and latterly at No. 5/6 South Great George's Street Dublin. Since the Act of 1982 came into operation the Plaintiffs have been licensed as tour operators and travel agents.

5 In 1985/86 the Applicants held a tour operator's licence and a travel agent's licence both dated the 8th of November 1985 and expressed to be operative from that date until the 31st October 1986. Special condition No. 2 of that tour operator's licence provided:

"2. The licensee shall furnish to the Minister a certified audited statement of actual licenceable turnover as at end March and end June not later than the 20th day of the following month."

6 The Plaintiffs failed to furnish statements of licenceable turnover as required by this condition. As a result of this failure the Defendant requested such information by letters dated the 15th of August and the 12th of September 1986 to to which there was no reply. The Defendant wrote again on the 30th of September 1986 requesting this information and also complaining of failure by the Plaintiffs to keep adequate records as required by condition 9 of their then tour operator's licence and condition 7 of their then travel agent's licence. In that letter the Minister also threatened to revoke the licences. There was no reply to this letter.

7 At the same time as this correspondence was taking place regarding non observance of the conditions of the 1985/86 licences those licences were nearing their expiry date namely the 31st October 1986. The Defendant wrote a circular letter dated the 24th of June 1986 to remind the Plaintiffs (inter alios) of the date of expiry of the licences and of the necessity of submitting applications for renewal of the licences by the 31st of July 1986 at the latest if the renewals were to be ready by the 1st of November 1986. There was no reply by the Plaintiffs to this circular letter much less an application for renewal of their tour operator's and travel agent's licences. Reminders were sent by the Defendant on the 18th of August and the 26th of September 1986 to which there was no reply by the Plaintiffs until in or about the 20th October 1986 when applications for the renewal of the tour operator's licence and the travel agent's licence were received by the Defendant from the Plaintiffs.

8 On the 20th October 1986 the Defendant wrote to the Plaintiffs saying that he did not then intend to revoke the 1985/86 licences because there were only 10 days to run for those licences but that he was considering refusing a renewal of the licences because of breaches of the conditions of the 1985/86 licences. The Plaintiffs replied on the 27th of October 1986 dealing with the question of failure to keep adequate records but ignoring the breach of conditon 2 as to furnishing accounts of licenceable turnover. The Defendant replied on the 31st October 1986 pointing out this fact and on the 11th November 1986 the Plaintiffs wrote dealing further with the question of keeping records and also sending on the figures regarding licenceable turnover required to be furnished by condition 2 of the 1985/86 licences. These figures showed that the Plaintiffs had been bonded during the season 1985/86 on an estimated turnover of £700,000 whereas their actual turnover was over £973,000, that is to say an excess of 39%. Therefore, the Plaintiffs had been under-bonded to that extent during that year.

9 Following this correspondence the Plaintiffs met officers of the Defendant in the Department of Communications in Dublin on the 25th of November 1986. On that occasion the Plaintiffs were warned of the necessity to observe the conditions of the licences and that a serious view would be taken of any breaches of such conditions in the future. Thereafter the licences for 1986/87 issued from the Defendant to the Plaintiffs dated the 10th December 1986 and expressed to operate until the 31st October 1987.

10 The Plaintiffs had had to suspend trading from their Dublin Office from the 1st of November 1986 until the issue of the licences on the 10th December 1986. The Plaintiffs" brochures for the 1987 season were with their printers in Northern Ireland awaiting the issue of the licences for 1986/87 because a copy of the tour operator's licence must be included in the brochure by reason of general condition 8 of that licence. The Plaintiffs received their licences dated the 10th December 1986 in Belfast on the 11th December 1986 together with a covering letter dated the 10th December 1986 which specifically drew the Plaintiffs attention to special conditions 3...