Dunnes Stores v Director of Consumer Affairs

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 14 July 2005
• Neutral Citation: [2005] IEHC 242
• Court: High Court
• Docket Number: [2003 No. 535 SP]
• Date: 14 July 2005

[2005] IEHC 242

THE HIGH COURT

[No. 535 SP/2003]

Dunnes Stores v Director of Consumer Affairs

IN THE MATTER OF

THE RESTRICTIVE PRACTICES ACT, 1972– 1987 (AS AMENDED)

AND

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 13(3) OF THE

RESTRICTIVE PRACTICES ACT, 1972

(AS AMENDED BY SECTION 18 OF

THE RESTRICTIVE PRACTICES (AMENDMENT) ACT 1989)

BETWEEN:

DUNNES STORES

PLAINTIFF

AND

DIRECTOR OF CONSUMER AFFAIRS

DEFENDANT

1 Judgment of Ms. Justice Finlay Geoghegan delivered on the 14th day of July 2005.

2 On the 2nd December, 2003, Dunnes Stores, the plaintiff, advertised that it was reducing the price of disposable nappies by 40% for one day only. On that day Mr. Michael McEneaney, an officer in the office of the Director of Consumer Affairs, the defendant herein, purchased three packets of disposable nappies in the St. Stephen's Green premises of the plaintiff. He then sought net invoice information from an assistant manager of the plaintiff in its St. Stephen's Green shop in relation to the three products purchased. That information was not available on the shop premises and he was referred to the plaintiff's head office.

3 Mr. McEneaney subsequently went to the head offices of the plaintiff and met with a Mr. Haughton, head of food finance. The information sought was not made available to Mr. McEneaney.

4 It is common case that the information was sought by Mr. McEneaney as part of an investigation into the question as to whether the disposable nappies were being sold below cost on the 2nd December, 2003, allegedly contrary to the provisions of the Restrictive Practices (Groceries) Order, 1987, and that Mr. McEneaney was exercising powers conferred on him by s. 15 of the Restrictive Practices Act, 1972 (as amended by s. 18 of the Restrictive Practices (Amendment) Act, 1987).

5 On the 5th December, 2003, the plaintiff issued the special summons herein seeking primarily:

"A declaration that disposable nappies are not "grocery goods" within the meaning of that term in Article 2 of the Restrictive Practices (Groceries) Order, 1987 as they are not "household necessaries" which are "ordinarily sold in grocery shops".

The application is brought pursuant to s. 15 (3) of the Act of 1972. This subsection provides:

(3) ( a) The owner of premises which an authorised officer proposes to enter and inspect, or a person on whom an authorised officer has made a requirement under this section, may apply to the High Court for a declaration under this section.

( b) Where the owner of premises which an authorised officer proposes to enter and inspect, or a person on whom an authorised officer has made a requirement under this section, refuses access to the officer or refuses to comply with the requirement (as the case may be), the owner or other person shall within seven days thereafter apply to the High Court for a declaration under this section.

( c) The High Court, having heard such evidence as may be adduced and any representations that may be made by the [Director] and a person referred to in paragraph ( a), may at its discretion declare that the exigencies of the common good do not warrant the exercise by the [Director] of the powers conferred on him by this section, and upon the making of such a declaration the [Director] shall either cease to effect the relevant entry or inspection or (as the case may be) withdraw the relevant requirement under this section.

At the time of the hearing of the action the parties were in agreement that there was only a single issue to be determined by the court. The issue is whether or not disposable nappies are "grocery goods" within the meaning of that term in article 2 of the Restrictive Practices (Groceries) Order, 1987 ("the 1987 Order"). The plaintiff accepts that if disposable nappies are grocery goods then it is not entitled to any of the reliefs sought. The defendant accepts that if disposable nappies are not grocery goods within the meaning of the 1987 Order then it follows that the exigencies of the common good do not warrant the exercise by the authorised officer of the powers conferred on him under s. 15 (as amended) and the plaintiff is entitled to the declarations sought.

The current definition of "grocery goods" is contained in article 2 of the 1987 Order and insofar as relevant is in the following terms:

"grocery goods" mean goods for human consumption ... and such household necessaries (other than foodstuffs) as are ordinarily sold in grocery shops ..."

Applicable principles of statutory interpretation

6 The submissions of the parties as to the relevant principles of statutory interpretation were similar. However they differed somewhat in their submissions as to the application of those principles to the definition of "grocery goods" in article 2 of the 1987 Order. I propose, therefore, setting out my conclusions on the principles applicable to the construction of the definition of "grocery goods" and in particular as to whether it includes disposable nappies.

7 The starting point is that the statutory definition should be construed according to the intention expressed by the words of the relevant provision. In Howard v. Commissioners of Public Works [1994] 1 I.R. 101 Blayney J., in the Supreme Court quoted with approval from Craies on Statute Law (1971) (7th Ed.) at p. 65:

"The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the lawgiver. "The tribunal that has to construe an Act of a legislature, or indeed any other document, has to determine the intention as expressed by the words used. And in order to understand these words it is natural to enquire what is the subject matter with respect to which they are used and the object in view" [ per Lord Blackburn in Direct United States Cable Co. v. Anglo-American Telegraph Co. (1877) 2 App. Cas. 394]."

8 Later in the same judgment at p. 153 Blayney J. cited with approval from a further passage from the same edition of Craies on Statute Law at p. 66:

" "... In a court of law or equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from what it has chosen to enact, either in express words or by reasonable and necessary implication." After expounding the enactment, it only remains to enforce it, notwithstanding that it may be a very generally received opinion that it "does not produce the effect which the legislature intended," or "might with advantage be modified". The meaning which words ought to be understood to bear is not to be ascertained by any process akin to speculation: the primary duty of a court of law is to find that natural meaning of the words used in the context in which they occur, that context including any other phrases in the Act which may throw light on the sense in which the makers of the Act used the words in dispute."

9 As appears from the foregoing a word or expression in a statute, or in this case a statutory instrument, must be given its natural meaning in the context in which it occurs. In Inspector of Taxes v. Kiernan [1981] I.R. 117 Henchy J., in construing s. 78 of the Income Tax Act, 1967 and in particular in determining the issue as to whether the word "cattle" as used therein included pigs stated at p. 121:

"A word or expression in a given statute must be given meaning and scope according to its immediate context, in line with the scheme and purpose of the particular statutory pattern as a whole, and to an extent that will truly effectuate the particular legislation or a particular definition therein."

10 Applying the above principles to the statutory provisions at issue herein I am satisfied that the expression "household necessaries ... as are ordinarily sold in grocery shops ..." should be given its meaning and scope in accordance with the relevant statutory context i.e. as appearing in an order made under s. 8 of the Act of 1972. I will return to a consideration of such statutory context.

11 The next issue is whether the phrase used should be given a special meaning by reason of the fact that the 1987 Order is directed to a particular trade namely the grocery trade. The relevant rule as stated by Lord Esher M.R. in Unwin v. Hanson [1891] 2 Q.B. 115 and cited with approval by Henchy J. in Inspector of Taxes v. Kiernan [1981] I.R. 117 at 121 is:

"... if the Act is one passed with reference to a particular trade, business, or transaction, and words are used which everybody conversant with that trade, business, or transaction, knows and understands to have a particular meaning in it, then the words are to be construed as having that particular meaning, thought it may differ from the common or ordinary meaning of the words."

12 I am...