Browne v Dundalk Urban District Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 20 January 1993
• Neutral Citation: 1993 WJSC-HC 126
• Docket Number: NO. 340 JR/1992,[1992 No. 340 J.R.]
• Court: High Court
• Date: 20 January 1993

BROWNE v. DUNDALK UDC

(JUDICIAL REVIEW)

BETWEEN

FRANCIS (OTHERWISE KNOWN AS FRA) BROWNE

APPLICANT

AND

DUNDALK URBAN DISTRICT COUNCIL

RESPONDENT

1993 WJSC-HC 126

NO. 340 JR/1992

THE HIGH COURT

Synopsis:

JUDICIAL REVIEW

Remedy

Scope - Restriction - Public domain - Element - Necessity - Contract - Breach - Reason - Political motive - Review granted - (1992/340 JR - Barr J. - 20/1/93) - [1993] 2 I.R. 512

|Browne v. Dundalk Urban District Council|

Citations:

CITY & CO MANAGEMENT (AMDT) ACT 1955 S4

BEIRNE V GARDA COMMISSIONER 1993 ILRM 1

KEANE LAW OF LOCAL GOVERNMENT IN IRELAND CH 2 18

COUNTY MANAGEMENT ACTS 1940 – 1955

1 Judgment delivered by Mr. Justice Barr on the 20th day of January, 1993.

2 This application is for relief by way of judicial review relating to the purported recision by the respondent of a contract which it entered into with the applicant regarding the hiring of the town hall at Dundalk for the annual conference of the Sinn Fein party from 19th to 21st February, 1993. It is common case that the applicant was acting for that body in contracting with the respondent.

3 The facts which have given rise to the application are not in dispute and are as follows:-

4 1. The applicant, Mr. Sean Kenna and Mr. Frank Duffy are elected members of the respondent local authority and are also members of the Sinn Fein party.

5 2. On 2nd October, 1992 a contract was entered into between the applicant and his two colleagues with the respondent relating to the hiring of its town hall at Dundalk for the use of the Sinn Fein party in connection with its annual conference to be held from 19th to 21st February, 1993 inclusive. A sum of £100.00 comprising a booking fee and the cost of insurance for the event was paid to and accepted on behalf of the respondent. The contract was duly approved and sanctioned by the town clerk and the county manager for county Louth.

6 3. At a meeting of the local authority held on the 27th of October, 1992 the following resolution was proposed by Councillor McGahon

"That the booking of the town hall given to Sinn Fein for 19/20/21 February 1993 be cancelled on the basis that this organisation publically supports the use of violence in our country and that the town hall and its public rooms not be made available in any way at any time to any person or organisation who advocates or uses violence or supports violence towards political ends, or for any other purpose".

7 Eight members of the council were in attendance at the meeting and six of them supported the resolution which was duly carried.

8 4. By letter dated 28th October, 1992 addressed to the applicant and councillors Kenna and Duffy the town clerk informed them that

"Following on the passing of a Resolution at this council's monthly meeting held on 27th October the booking of the town hall on 19/20/21 February, for your Party Conference has been cancelled.

Enclosed is Paying Order for £100.00 refund of your deposit paid with application for hire".

9 5. The purported rescission of the hiring contract has been challenged by the applicant who has elected to seek relief by way of judicial review rather than by action on the contract.

10 6. By order dated 23rd November, 1992 O'Hanlon J. gave leave to the applicant to seek judicial review on the folowing grounds:-

11 (a) A valid subsisting contract exists for the booking of the Town Hall in Dundalk for the Party Conference of Sinn Fein from February 19 to 21 inclusive, 1993.

12 (b) The letting of the Town Hall is an executive and not a reserved function.

13 (c) The action of the Town Clerk of the respondent in purporting to act on foot of the resolution of the councillors of October 27th is

14 (i) ultra vires having regard to the distinction between executive and reserved functions established by the County Management Acts 1940–1955 and/or

15 (ii) unlawful in any event in seeking without lawful justification to breach a contract already entered into with the applicant.

16 (d) Given that the clear and expressed and only reasons relied on for the purported cancellation or rescission of the said contract are the expressions of opinion contained in the Resolution of October 27th the said purported cancellation amounts to a breach of the constitutional right to

17 (i) freedom of speech

18 (ii) freedom of assembly of members of a lawfully registered political party in the state of whom the applicant is one.

19 Written submissions of counsel have been furnished to the court. In essence, the primary arguments advanced on behalf of the respondent are:-

20 (a) Even if the resolution of the council passed on 27th October was an unlawful interference with a contract which had been concluded on behalf of the authority and was binding on it, the resolution had no effect in law as it was not within the ambit of section 4 of the City and County Management (Amendment) Act, 1955(hereinafter referred to as "section 4"). It was no more than a recommendation to the chief executive of the council and was not binding on him.

21 (b) If the purported rescission of the hiring contract by the town clerk was unlawful, the remedy of the applicant and of the body on whose behalf he acted is an action in contract and not by way of an application for judicial review. In that regard it was submitted that the purported rescission of the contract by the town clerk was solely and exclusively derived from an individual contract made in private law and was within the demarcation drawn by the Supreme Court in Beirne v. The Commissioner of An Garda Siochana unreported (judgments delivered on 30th October, 1992) between matters which are within the ambit of judicial review and others which are not reviewable on that basis.

22 (c) It was also argued by counsel for the respondent that if the court found that the applicant was entitled to pursue a claim for judicial review regarding the purported rescission of the hiring contract by the town clerk on behalf of the local authority, the court should exercise its discretion against granting such relief on the ground that damages is an adequate remedy and that there was no evidence that the Sinn Fein party had made any effort to minimise its loss by seeking an alternative venue elsewhere.

23 Having regard to the particular issues raised in this application, it is unnecessary to examine in detail the respective powers, duties and functions of local authorities on the one hand and county managers or town clerks on the other. Suffice it to state in broad outline that all are creatures of statute which prescribe their respective powers duties and obligations. In...