In the Application of Galfer Filling Station Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan |
| Judgment Date | 24 July 2023 |
| Neutral Citation | [2023] IECA 184 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 2021/19 |
In the Application of Galfer Filling Station Ltd
[2023] IECA 184
Whelan J.
Noonan J.
Binchy J.
Record Number: 2021/19
THE COURT OF APPEAL
Costs – Licensing – Case stated – Appellant seeking to set aside costs order – Whether there was an event as against the appellant in respect of which costs should be awarded
Facts: The applicant/respondent, Galfer Filling Station Ltd (Galfer), on the 17th June, 2019, brought an application before the District Court pursuant to s. 2(1) of the Licencing Ireland Act 1902 as amended for an order to revive wine, beer and spirits off licences attaching to a premises known as Spar, Hill Street, Cloghan, County Offaly. The District Judge was not satisfied to grant the application for the licences on foot of a franchisee agreement which had been presented to her. Of her own motion she forwarded two questions relating to the proceedings for the opinion of the High Court: (1) Is the franchise agreement sufficient estate or interest in the premises to allow her to grant the application to revive the licence in the name of the franchisee/applicant? (2) Is lawful occupation as set out in the franchise agreement sufficient to entitle the franchisee to apply for a licence in its sole name? The matter came on for hearing before the High Court and judgment was delivered by Meenan J on the 8th July, 2020. Having considered the terms of the agreement, the judge concluded that, though the applicant was not a tenant, it did have a clear entitlement to occupy the premises and such an entitlement was a sufficient estate or interest in the premises necessary for the grant of the licence sought. Galfer sought costs against the notice party/appellant, Superintendent O’Callaghan. On the 29th September, 2020 the judgment on costs was delivered where the judge concluded that there was an ‘event’ in that the outcome of the proceedings allowed for the applicant’s application for the wine, beer and spirits off licence to proceed in the District Court. The judge held that the notice party took a ‘neutral’ position; however, if the notice party had accepted the submissions which were made by the applicant, then the proceedings would have been unnecessary. The judge held that, by reason of the foregoing, the applicant was entitled to an order for the costs of the proceedings (including any reserved costs) to be adjudicated in default of agreement. The notice party appealed to the Court of Appeal on four grounds: (1) that the High Court judge erred in awarding costs without having due or any regard to the fact that the appellant was a statutory notice party with no interest in the application; (2) that the judge erred in finding that there was “an event” as against the appellant in respect of which costs should be awarded; (3) that the judge failed to have due regard to the fact that the appellant did not oppose the respondent’s application at the District Court or High Court and was not “an ‘unsuccessful party’” for the purpose of a decision as to the allocation of costs but participated solely with a view to assisting the court; and (4) that the judge erred in finding that the proceedings in the High Court would have been “unnecessary” if the appellant took a different approach.
Held by Whelan J that the trial judge erred in making an order for costs against the notice party. Whelan J held that the notice party was entirely neutral throughout the proceedings. Whelan J held that, whereas the respondent was entirely successful in the proceedings on the facts of the case, having due regard to the statutory regime the notice party was not unsuccessful in any sense in the proceedings. Whelan J held that whereas the general principle is that costs follow the event, the event was the answering of the two questions posed by the judge. Whelan J held that since the notice party was not an unsuccessful party, there was no equitable basis on which he could be fairly affixed with an order for the respondent’s costs in all the circumstances.
Whelan J held that it was necessary that the order of the High Court judge in regard to costs be set aside and that there be no order as to costs. Whelan J’s preliminary view was that it was appropriate that costs follow the event and that the respondent pay the costs of the appellant/notice party of the appeal when ascertained.
Appeal allowed.
JUDGMENT of Ms. Justice Máire Whelan delivered on the 24th day of July 2023
. On the 17 th June, 2019 Galfer Filling Station Limited (Galfer) brought an application before the District Court pursuant to s. 2(1) of the Licencing Ireland Act, 1902 as amended for an order to revive wine, beer and spirits off licences attaching to a premises known as Spar, Hill Street, Cloghan, County Offaly.
. Previously, an application in like terms in the name of Triode Newhill Cloghan Limited with Galfer as nominee had been pending before the District Court from the 17 th September, 2018 and had been adjourned from time to time and ultimately had been the subject of a judgment of the Court of Appeal on the 15 th November, 2018 Record No. 2018/102 [2018] IECA 356.
. Following the outcome of that appeal the notice of application under the 1902 Act as amended was amended to the sole name of Galfer on the 20 th May, 2019. Same was served on Superintendent Patrick O'Callaghan, the notice party, on behalf of An Garda Síochána and was stamped and lodged together with the necessary declaration of service at Tullamore District Court on the 20 th May, 2019.
. Section 2 (as amended) provides:-
“2. From and after the passing of this Act, no licence shall be granted for the sale of intoxicating liquors, whether for consumption on or off the premises, except—
(1) For premises (not being premises which were licenced by virtue of paragraph 2 of this section) which were licensed at any time during the period of five years immediately before the day on which notice of an application for a grant of a certificate entitling the holder to receive a licence in respect of the premises is given, pursuant to Rules of Court, to the appropriate County Registrar or to the appropriate District Court Clerk, as the case may be: …”
The other subsections of s. 2 are not relevant. It was incumbent on Galfer to serve notice of the application on the notice party pursuant to law.
. It is clear from the face of a consultative case stated signed by District Judge Staines on the 17 th July, 2019 that the stance of the Gardaí was that they had no objection to the application.
“The Gardaí stated to the Court that there was no garda objection to the application.”
. However, the District Judge of her own motion was not satisfied to grant the application for the licences on foot of a franchisee agreement which had been presented to her. Her reservations stemmed from the judgment of the Court of Appeal in Triode Newhill LHP Limited & Ors. v Superintendent Murray [2018] IECA 356. She stated:-
“On reading the said case I was not satisfied to grant the application for the licences on foot of which the franchisee agreement, which was referred to in the said Judgement at paragraphs 81 and 82 thereof, without the benefit of the advice of the High Court. The Court of Appeal left over two questions unanswered and did not reach a conclusion on same having only addressed the nominee issue.”
Accordingly, of her own motion the District Judge forwarded two questions relating to the proceedings for the opinion of the High Court:
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(1) Is the franchise agreement sufficient estate or interest in the premises to allow me to grant the application to revive the licence in the name of the franchisee/applicant.
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(2) Is lawful occupation as set out in the franchise agreement sufficient to entitle the franchisee to apply for a licence in its sole name.
. It appears from the documentation furnished in connection with this application that the evidence before the High Court judge in the consultative case stated was that a company Triode Newhill Cloghan Limited was the registered owner of the lands on which the Spar supermarket the subject of the transfer of licences stood in the village of Cloghan, County Offaly. That property is comprised in Folio 3043F County Offaly. Clearly it was the District Judge who took the initiative and proceeded to canvass the opinion of the High Court under the consultative case stated process.
. The comprehensive written legal submissions filed on behalf of the notice party engaged with the two specific questions posed by the District Judge for the opinion of the High Court, correctly noting that the case raised a mixed question of law and fact which required an assessment of the terms of the agreement and the transaction as a whole. Furthermore, that it was necessary for the High Court judge to consider carefully the judgment in Triode Newhill LHP Limited v Superintendent Murray. The various procedural and evidential challenges that confronted Triode in the latter case were briefly outlined, together with the relevant excepts from the judgment of Peart J. in this court. The relevant case law, Irish and English, on the distinction between a lease and a licence and the significance, or otherwise, of “exclusive possession” by a party in occupation as determinative of their legal status was set out with great clarity. At para. 81 the submission observes:-
“While there are different outcomes through the cases, whether a lease or mere licence is created is fundamentally a matter of construction of the intention of the parties from the review of the contract and transaction as a whole.”
At no point in the written...
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