Gorman v Minister for the Environment

• Jurisdiction: Ireland
• Judge: Mr. Justice Carney
• Judgment Date: 23 March 2001
• Neutral Citation: [2001] IEHC 47
• Date: 23 March 2001
• Court: High Court
• Docket Number: [2000 No. 699 J.R.]

[2001] IEHC 47

THE HIGH COURT

No. 699/2000

GORMAN & NATIONAL TAXI DRIVERS UNION v. MINISTER FOR ENVIRONMENT & ORS

JUDICIAL REVIEW

BETWEEN

THOMAS GORMAN, VINCENT KEARNS AND THE NATIONAL TAXI DRIVERS UNION

APPLICANTS

AND

THE MINISTER FOR THE ENVIRONMENT AND LOCAL GOVERNMENT, THE MINISTER OF STATE AT THE DEPARTMENT OF THE ENVIRONMENT AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Citations:

ROAD TRAFFIC (PUBLIC SERVICE VEHICLES) REGS 2000 SI 3/2000

HUMPHREY V MIN FOR ENVIRONMENT 2001 1 ILRM 241

ROAD TRAFFIC (PUBLIC SERVICE VEHICLES) (AMDT) (NO 3) REGS 2000 SI 367/2000

G V DPP 1994 IR 374

BUCKLEY V AG 1950 IR 67

CONSTITUTION ART 34.4.3

ROAD TRAFFIC ACT 1961 S82

ROAD TRAFFIC ACT 1961 S5

MAHER V AG 1973 IR 140

CONSTITUTION ART 43

CONSTITUTION ART 43.3.2

ART 26 OF THE CONSTITUTION & PART V OF PLANNING & DEVELOPMENT BILL 1999, RE 2000 2 IR 321 2001 1 ILRM 81

HEANEY V IRELAND 1994 3 IR 593

KELLY ON THE IRISH CONSTITUTION

HEMPENSTALL V MIN FOR ENVIRONMENT 1994 2 IR 20

ROAD TRAFFIC (PUBLIC SERVICE VEHICLES) REGS 2000 SI 3/2000 ART 9

DREHER V IRISH LAND COMMISSION 1984 ILRM 94

ESB V GORMLEY 1985 IR 129

BLAKE V AG 1982 IR 117 1981 ILRM 34

ARTICLE 26 & THE EMPLOYMENT EQUALITY BILL 1996 1997 2 IR 321

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

ASSOCIATED PROVINCIAL PICTURE HOUSES LTD V WEDNESBURY CORPORATION 1948 1 KB 223

O'KEEFFE V BORD PLEANALA 1993 IR 39

EGAN V MIN FOR DEFENCE UNREP BARR 24.11.1988 1988/7/2165

BATES V LORD HALISHAM 1972 1 WLR 1373

ESSEX CC V MIN FOR HOUSING 1967 66 LGR 23

CASSIDY V MINISTER FOR INDUSTRY 1978 IR 297

R V LIVERPOOL CORPORATION EX PARTE LIVERPOOL TAXI FLEET OPERATORS ASSOCIATION 1972 2 QB 299

TARA PROSPECTING V MIN FOR ENERGY 1993 ILRM 771

PESCA VALENTIA LTD V MIN FOR FISHERIES 1990 2 IR 305

Synopsis:

Administrative Law

Taxi licensing; deregulation; judicial review; statutory instrument permitting extra licences to be issued to existing taxi licence holders (S.I. No.3/2000) had been declared unconstitutional by the High Court; applicants had appealed that decision to the Supreme Court and appeal was pending; respondents had replaced S.I. No.3 with S.I. No.367/2000; applicants seeking judicial review to quash S.I. No.367 as being ultra vires second named respondent; whether the actions of second named respondent in revoking S.I. No.3 constituted an unwarranted interference in the judicial domain by reason of the fact that there was nothing left for the Supreme Court to rule upon on appeal; whether the ministerial repeal prevented the revival of S.I. No.3 in the event of a successful appeal and therefore constituted an unwarrantable interference in the judicial domain; whether S.I. No.367 is severable; whether respondents in introducing S.I. No.367 into law without compensation had mounted an unjust attack on the applicants" constitutionally protected property rights; whether respondents acted in an irrational manner or one which flies in the face of reason or common sense; whether the decision of second named respondent attracted the full rigours of natural and constitutional justice given that he was engaged in a legislative process; whether the applicants had a legitimate expectation to fetter a public body's statutory discretion to adopt a new policy in the public interest.

Held: Repeal provision contained in S.I. No.376/2000 quashed; balance of applicants" claim dismissed.

Gorman & National Taxi Drivers Union v. Min for Environment & Ors - High Court: Carney J. - 23/03/2001 - [2001] 2 IR 414

1 Mr. Justice Carney delivered on the 23rd day of March 2001.

2 This case is the latest piece of litigation relating to the intractable problems concerning the licensing of taxis. I need not review the history of the problem which is documented in a multiplicity of reports but can take as my starting point the enactment of statutory instrument number three of 2000 entitled the Road Traffic (Public Service Vehicles) Regulations.

3 This sought to address in a meaningful way the intolerable shortage of taxis on the streets of the City of Dublin. It at the same time sought to give taxi drivers who had paid typically sums of £80,000.00 a soft landing in relation to the loss of their of investment which total or substantial deregulation of the issuing of taxi licences would bring about. The mechanism to be adopted was to grant an extra licence to each existing taxi licence holder. It was also proposed to grant wheelchair accessible licences to suitable Applicants giving priority to the holders of public service vehicle driving licences who drive taxis but do not own them, such persons being known in the trade as cosies. This scheme would have got additional taxis in large numbers immediately onto the streets of Dublin while providing a mechanism for protecting existing taxi licence holders against the total capital loss which immediate and total deregulation would bring about.

4 The taxi driver leadership grudgingly accepted this regime. It was quite an achievement that they were brought to this position as I am satisfied that while they have come to accept that there must be more taxis on the streets they have always continued to want deregulation or liberalisation to be so gradual that there would be taxi queues on the streets of Dublin for at least a decade to come; although perhaps in declining numbers year by year. They do not for obvious reasons couch their argument in these terms but this is the logic of the position they take in relation to liberalisation being gradual. Taxi queues or shortages are necessary to preserve the values of £80,000.00 and upwards which have been paid for licences in recent years. If demand for taxi services equalled supply there would be no reason for premium prices being paid form licences in a secondary market.

5 The scheme designed in SI number three of 2000 could well have solved or substantially improved the problem in Dublin if it had a chance to operate. The regulation was however challenged by the taxi drivers' traditional adversary, namely the hackney interests in Humphrey and others v The Minister for the Environmental and Local Government and others Judgment delivered by Roderick Murphy J the 13th day of October, 2000, (hereinafter referred to as the Humphrey case). By that Judgment Murphy J found SI number three of 2000 ultra vires the powers of the Minister of State at the Department of the Environment and Local Government (hereinafter referred to as the Minister of State) and to be of no force and effect. Two of the applicants in the instant proceedings. Mr. Gorman and the Union had had themselves joined as respondents in the Humphrey case. The decision of Murphy J was appealed to the Supreme Court by these parties and accepted by the other Respondents and not appealed by them.

6 Shortly after the delivery of the Humphrey Judgment the Minister of State replaced the quashed SI number three of 2000 with SI number 367 of 2000. This repealed SI number three of 2000 notwithstanding that it had already been quashed by the High Court and provided for taxi licences being issued without limit as to their number at modest fees compared with the prices prevailing for licences in the secondary market. While retaining qualitative standards it abolished quantitative restrictions on the issue of taxi licences. This regulation is national in its effect; the one it succeeded and repealed having been local to Dublin.

7 The present Applicants sought leave from Kelly J to bring Judicial Review proceedings against the Respondents. They seek by way of Judicial Review to quash S.I. Number 367 of 2000 as being ultra viresthe second named Respondent. The application was made ex parte late on Tuesday 28th of November, 2000. Kelly J decided that the Respondents should be heard before any primary order was made and an inter partes hearing took place over a number of days. Notwithstanding the inter partes hearing Kelly J for the reasons set out in his judgment ruled that the Applicants need only satisfy the low standard of proof identified by the Supreme Court in G v D.P.P [1994] IR 374. Giving Judgment on the application for leave Kelly J said:-

"The grant of leave to apply for Judicial Review is not an indicator of the prospects of success at trial still less a warranty of victory. Neither is it the expression of a view as to the prospects of respondents at trial. It is a decision that applicants have met the low standard of proof required of them namely they have an arguable case. It is nothing more and nothing less that that".

8 The substantive application came on for hearing before me on Tuesday the 19th of December, 2000, and was at hearing for ten days. There had been in Dublin a lengthy complete withdrawal of taxi services. The giving of leave by Kelly J had led to the taxi interests voting to suspend their strike and in these circumstances although not asked to do so I exercised my discretion to waive all restraints as to relevance or admissibility in evidence and argument. At this stage, however, I must return to the very narrow confines of what this Court can do by way of Judicial Review. I am not concerned with choosing between the arguments of economists. I am not concerned with choosing which might the be best or even the most fair solution to an intractable problem. I am most specifically not concerned with the politics of the situation. In the context of this case I am concerned with whether the Minister of State has acted with in his statutory powers and if so has he notwithstanding operated in an unconstitutional, unreasonable or irrational manner and has he breached any legitimate expectation the Applicants might have.

9 The Applicants in the first instance rely on what they term their Sinn Fein Funds argument. They submit that the actions of the Minister of State in revoking SI number...