Listowel Livestock Mart Ltd v William Bird & Sons Ltd and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 26 October 2007
• Neutral Citation: [2007] IEHC 360
• Date: 26 October 2007
• Court: High Court
• Docket Number: [2007 No. 2211P]

[2007] IEHC 360

THE HIGH COURT

COMMERCIAL

No. 2211 P/2007

Listowel Livestock Mart Ltd v William Bird & Sons

BETWEEN/

THE LISTOWEL LIVESTOCK MART LIMITED

PLAINTIFF

AND

WILLIAM BIRD & SONS LIMITED, WILLIAM BIRD (SALES) LIMITED AND WILLIAM BIRD (ROLLER COASTER) LIMITED

DEFENDANTS

CASUAL TRADING ACT 1995 S7(4)

CALENDAR (NEW STYLE) ACT 1750

LOCAL GOVERNMENT BOARD (IRELAND) ACT 1872 S10

DOWNSHIRE v O'BRIEN 1887 19 LR IR 380

AG v HORNER 1886 11 APP CAS 66

NICHOLLS v TAVISTOCK URBAN DISTRICT COUNCIL 1923 2 CH 18

COUSINS PEASE & CHITTY'S LAW OF MARKETS & FAIRS 5ED 1998

WYLD & ORS v SILVER 1963 1 QB 169

SKIBEREEN URBAN DISTRICT COUNCIL (UDC) v QUILL 1986 ILRM 171

MOSLEY v WALKER 1827 7 B&C 40

PRINCE & ANOR v LEWIS 1826 5 B&C 363

O'CONNOR FAIRS & MARKETS OF IRELAND: A CULTURAL GEOGRAPHY 2003

HALSBURY'S LAWS OF ENGLAND 4ED VOL 29(2) PARA 1.003

WALKER v MURPHY1914 2 CH 293

COLLINS v COOPER 1893 68 LT 450

LAMBERT v ROWE 1914 KB 38

LOCAL GOVERNMENT

Casual trading

Markets and fairs - Market rights and obligations conferred by letters patent - Seventeenth century charters - Whether rights entitlements and obligations flowing from letters patent bind particular lands where not metes and bounds grant - Right of action to enforce - Whether rights could be extinguished by non-user - Distinction between market and fair - Nicholls v Tavistock UDC [1923] 2 Ch 18, Wyld v Silver [1963] 1 QB 169 and Skibbereen UDC v Quill [1986] IR 123 considered - Casual Trading Act 1995 (No 19) - Plaintiff granted relief (2007/2211P - Clarke J - 6/10/2007) [2007] IEHC 360

Listowel Livestock Mart Ltd v William Bird& Son Ltd

Facts: By virtue of letters patent, certain rights and obligations to hold markets and fairs in Listowel were conferred on the plaintiff. Consequently, the plaintiff acquired certain lands for the purposes of establishing a mart in the town of Listowel and conducted regular sales at that site (market place). The first and second named defendants were entitled to occupy the Market Place by virtue of a lease and provided amusements and other facilities at the horse racing festival held each September in Listowel. The plaintiff subsequently moved their regular sales to a new location just outside the town of Listowel and the Market Place was offered for sale. The defendants alleged that the existence of the rights and obligations flowing from the letters patent continued to affect the site in question and consequently the lands could not be sold without providing another site which was convenient and located within Listowel. The letters patent did not specify any particular land within Listowel at which markets and fairs were to be conducted. The plaintiff sought a declaration essentially to the effect that the rights and obligations did not bind the lands in perpetuity and therefore the lands could be sold to a purchaser free from any obligation.

Held by Clarke J. in favour of the plaintiff: That the obligation to hold a market in a general district was an obligation lying upon the owner of the market rights concerned and did not attach to any particular piece of land and that position was not altered by the fact that certain lands happened to be used for the purposes of the market. Furthermore, any public entitlements that existed in this case did not attach to the lands in question.

Obiter: Market or fair obligations were not appropriated to the Market Place in this case and furthermore, each of the fairs specified in the letters patent were extinguished by non user under the provisions of section 7(4) of the Casual Trading Act, 1995.

Reporter: L.O'S.

1. Introduction

2 2 1.1 By letters patent issued by James I in 1612 Thomas Fitzmaurice, Baron of Licknawe (as it was then described) was, amongst other things, given the right to hold:

"One free market to be held at Listowell aforesaid in the said County of Kerry on every Saturday weekly forever and one fair yearly forever to be held at Listowell aforesaid in the said County of Kerry on the faist day of the Finding of the Holy Cross and on the next day following the said faist day of the Finding of the Holy Cross provided the said faist day of the Finding of the Holy Cross does not fall on a Saturday or the Lord's Day, in which case we will that the said fair to be held there on Monday and Tuesday next following after the said faist of the finding of the Holy Cross ..."

3 3 1.2 Subsequently, in 1688 by a further patent James II added to the entitlements of the Barons of Lixnaw a right to:

"Avail and be able to have and hold one free market in or about the aforesaid Listowel in the aforesaid County of Kerry on any Tuesday of each week forever and also two fairs or marts to be held in or about the aforesaid ville of Listowel annually forever viz. one of the aforesaid fairs or marts to be held in the same place upon the 15th day of July annually forever and lasting the day immediately following annually forever and one other fair or mart to be held in or about the aforesaid ville upon the 18th day of October and lasting the day immediately following annually forever unless the aforesaid days or one of them happen or happens on a Saturday or Sunday when and as so often the same days or one or other of them happen or happens on a Saturday or Sunday, then and so often we by these presents for ourselves, our heirs and successors give and grant a licence to the aforesaid William, Lord Baron of Kerry and Lixnaw, his heirs and assigns that he, his heirs and assigns have and hold and avail and shall be able to have and hold the aforesaid separate fairs and marts in or about the aforesaid ville on the Monday and Tuesday immediately following forever."

4 4 1.3 It is accepted that the rights and obligations conferred by those letters patent remain in force today and are held by the plaintiffs ("Listowel Mart"). What is disputed between the parties is as to the precise legal consequences for this dispute which flow from the continued existence of those rights and obligations.

5 5 1.4 Listowel Mart acquired certain lands in the 1950s for the purposes of establishing a mart in the town of Listowel. At the same time Listowel Mart acquired the rights and obligations, as the successor of the Baron of Lixnaw, to the market and fair rights set out in those charters. I will describe those rights and obligations as the market rights and obligations save where the distinction between a market and a fair is relevant. Thereafter, until recent times, Listowel Mart conducted regular sales at the site in question, which is in the town of Listowel and is frequently referred to as the Market Place.

6 6 1.5 In the latter part of September horse races are run at Listowel which have developed, over the years, into a significant festival. In conjunction with that festival the Bird family have provided amusements and other facilities (the precise extent of which is an issue to which I will have to return) in the Market Place. In more recent times those amusements have been carried on by one or other of the first and second named defendants ("Birds"). It would not appear that the third named defendant has, in reality, any relevance to these proceedings. Since the 1950s a number of leases relevant to these proceedings were entered into. The initial such lease was entered into by Lloyds Bank, as Executor and Trustee of the estate of the Earl of Listowel (the then successor in title to the Baron of Lixnaw), of the one part and William Bird of the other part. Thereafter, Listowel Mart entered into similar leases with Birds. The relevant leases provided for an entitlement to occupy the Market Place (initially as to a part only but laterally the entirety) for a period of just short of two weeks, spanning the Listowel Races festival.

7 7 1.6 In recent times Listowel Mart has moved their regular sales to a new location just outside the town of Listowel. The existing Market Place was offered for sale and a contract entered into, in 2004. However, Birds have asserted that the existence of the rights and obligations, flowing from the two 17th century charters to which I have referred, continue to affect the lands in question so that, in the circumstances, the lands, it is said, cannot be sold without either providing another site which is convenient and located within Listowel or in circumstances where the lands in dispute between the parties will remain available for market and fair use.

8 8 1.7 This case raises, therefore, the issue of the extent to which two 17th century charters can affect the entitlement of a corporate entity in the 21st century to sell property which it owns with a sufficiently clean title to permit the property to be developed. However, as both counsel properly agreed, if the charters have such a legal effect then this Court must enforce it as appropriate. Within the broad parameters of the general dispute between the parties, a number of specific issues have arisen to which I should now turn.

2. The issues

2 2 2.1 It would be fair to say that the position of both parties, but in particular Birds, has evolved since the issues were first addressed in correspondence between the parties in 2006. Until written submissions were filed in these proceedings, the position adopted by Birds, both in that correspondence and in its pleadings, seemed to assert that there was an absolute entitlement to use the Market Place in accordance with the charter. However, in the course of the relevant written submissions it was accepted on behalf of Birds, that their entitlement was subject to a corresponding entitlement on the part of Listowel Mart to move the market and fair provided it was moved to a "suitable location". By suitable location was meant a location which was within the terms of the charters and was convenient for the purposes of a market or fair.

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