HEALTH SERVICE EXECUTIVE v BROOKSHORE Ltd

• Jurisdiction: Ireland
• Judgment Date: 19 May 2010
• Date: 19 May 2010
• Docket Number: [2010 No. 85 SS]
• Court: High Court

[2010] IEHC 165

High Court

[2010 No. 85 SS]

Health Service Executive v. Brookshore Ltd.

In the matter of s. 2 of the Summary Jurisdiction Act 1857, as extended by s. 51 of the Courts (Supplemental Provisions) Act 1961. The Health Service Executive

Appellant

and

Brookshore Limited

Respondent

Cases mentioned in this report:-

Farrell v. Alexander [1976] Q.B. 345; [1975] 3 W.L.R. 642; [1978] 1 All E.R. 129.

Inspector of Taxes v. Kiernan [1981] I.R. 117; [1982] I.L.R.M. 13.

The People (Director of Public Prosecutions) v. Kelly [2007] IEHC 450, [2008] 3 I.R. 202.

Proes v. Revenue Commissioners [1998] 4 I.R. 174; [1998] 1 I.L.R.M. 333.

Reg. v. Ottewell [1970] A.C. 642; [1968] 3 W.L.R. 621; [1968] 3 All E.R. 153.

Tuck & Sons v. Priester (1887) 19 Q.B.D. 629.

Unwin v. Hanson [1891] 2 Q.B. 115.

Statute - Interpretation - Public at large - Ordinary colloquial meaning - Penal provision - Use of Dictionary - Costs - Whether canvas awning constituting roof - Whether costs to be awarded against appellant - Public Health (Tobacco) Act 2002 (No. 6), s. 47(7)(c) - Public Health (Tobacco) (Amendment) Act 2004 (No. 6), s. 16.

Practice and procedure - Case stated - Question of law - Finding of fact - Whether finding based on interpretation of statute - Whether High Court bound by question of law determined by District Court - Summary Jurisdiction Act 1857 (20 & 21 Vict., c. 43), s. 2 - Courts (Supplemental Provisions) Act 1961 (No. 39), s. 51.

Words and phrases - "Roof" - Public Health (Tobacco) Act 2002 (No. 6), s. 47(7)(c) - Public Health (Tobacco) (Amendment) Act 2004 (No. 6), s. 16.

Case stated

The facts have been summarised in the headnote and are more fully set out in the judgment of Charleton J., infra.

On the 8th January, 2010, District Judge John Coughlan stated a case to the High Court pursuant to s. 2 of the Summary Jurisdiction Act 1857, as extended by s. 51 of the Courts (Supplemental Provisions) Act 1961.

The case stated was heard by the High Court (Charleton J.) on the 11th May, 2010.

Section 47 of the Public Health (Tobacco) Act 2002, as amended by s. 16 of the Public Health (Tobacco) (Amendment) Act 2004, prohibits the smoking of tobacco in specified places. Section 47(7)(c) provides that the prohibition shall not apply to a place or premises, or part thereof, that is wholly uncovered by any roof, whether it is fixed or moveable.

The respondent, who ran a public house, was charged with certain offences under the Act of 2002, as amended, for having permitted customers to smoke in a laneway beside its premises that was covered with a retractable canvas awning. Having found that the awning was not a roof or a moveable roof and therefore that the area was exempt from the smoking prohibition by virtue of s. 47(7)(c), the District Judge stated a case to the High Court asking, inter alia, whether he was correct in so finding. It was argued that the finding of District Judge that there was no roof in the relevant area of the respondent's premises was a finding of fact, which bound the High Court.

Held by the High Court (Charleton J.), in finding that the exemption under s. 47(7)(c) did not apply, 1, that where a statutory provision was directed to the public at large rather than to a particular class who may be expected to use the word or expression in question in either a narrowed or an extended connotation, or as a term of art, then, in the absence of internal evidence suggesting the contrary, the word or expression should be given its ordinary or colloquial meaning.

Inspector of Taxes v. Kiernan [1981] I.R. 117applied.

2. That, where a word or expression was used in a statute to create a penal or taxation liability and there was looseness or ambiguity attaching to it, the word ought to be construed so as to prevent a fresh imposition of liability from being created unfairly by the use of oblique or slack language.

Inspector of Taxes v. Kiernan [1981] I.R. 117applied.

3. That, when a word which required to be given its natural and ordinary meaning was a simple word which had widespread and unambiguous currency, the judge construing it ought to draw primarily from his or her own experience of use. Dictionaries or other literary sources ought to be looked at only when alternative meanings, regional usages or other obliquities were shown to cast doubt on the singularity of its ordinary meanings, or when there were grounds for suggesting that the meaning of the word had changed since the statute in question was passed.

Inspector of Taxes v. Kiernan [1981] I.R. 117applied.

4. That, in some circumstances, for example where a word could mean different things to different people, it might be overly restrictive to require a judge to interpret that word by relying primarily on his or her own experience of its use; dictionaries may be of assistance in such circumstances.

Inspector of Taxes v. Kiernan [1981] I.R. 117distinguished.

5. That the definition of a roof under s. 47(7)(c) of the Public Health (Tobacco) Act 2002 extended to any membrane covering the upper surface of a room or premises which impeded the ready dispersal of tobacco smoke and which provided shelter from the elements.

6. That the meaning of a word as set out in a statute and the interpretation of the circumstances under which liability for a criminal offence could be established were matters of law.

7. That the statutory mechanism, whereby a judge of the District Court could seek the advice of the High Court or whereby a decision could be appealed by way of case stated, placed a responsibility on the High Court to declare the law as clearly and accurately as possible and to correct any error of law made within jurisdiction.

8. That when considering a case stated, the High Court ought to apply the following principles: (i) findings of primary fact by a judge ought not to be disturbed unless there was no evidence to support them (ii) inferences from primary facts were mixed questions of fact and law (iii) if a trial judge adopted a wrong view of the law his conclusions ought to be set aside (iv) if a trial judge's conclusions were not based on a mistaken view of the law they should only be set aside if he drew inferences which no reasonable judge could draw (v) whilst some evidence could point to one conclusion...