Lovett v Gogan

JurisdictionIreland
Judgment Date01 January 1995
Date01 January 1995
Docket Number[1993 No. 111 S.C.]
CourtSupreme Court
Lovett v. Gogan
John Lovett trading as Lovett Transport
Plaintiff
and
Robert Gogan, trading as P.S. Travel and Others
Defendants
[1993 No. 111 S.C.]

Supreme Court

Constitution - Personal rights - Right to earn livelihood by lawful means - Infringement by private person - Remedy - Whether plaintiff having locus standi - Constitution of Ireland, 1937, Article 40, s. 3.

Injunction - Breach of constitutional rights - Right to earn a living by lawful means - Plaintiff operating licensed passenger road service - Injunction sought restraining defendant from operating unlicensed passenger road service - Plaintiff in breach of conditions of licence - Whether coming before court otherwise than with clean hands - Whether breaches of licence such as to warrant conclusion that plaintiff earning living by unlawful means - Locus standi.

Road traffic - Licence - Passenger road service - Defendant operating passenger transport service - Defendant not owner of vehicles - Whether passengers paying fare - Whether paying contribution to defendant - Whether defendant providing passenger road service - Road Transport Act, 1932 (No. 2), ss. 2 and 7.

Section 2 of the Road Transport Act, 1932, provides, inter alia, that "'passenger road service' means a service of one or more mechanically propelled vehicles . . . carrying passengers . . . between specified terminal points . . . for separate charges in respect of each passenger."

Section 7 of the Act of 1932 provides, inter alia:—

"(1) On and after the appointed day no person shall carry on a passenger road service save under and in accordance with a licence (in the Act referred to as a passenger licence) granted to him under this Act.

(2) Every person who carries on a passenger road service in contravention of this section shall be guilty of an offence under this section and shall be liable on summary conviction to a fine not exceeding fifty pounds together with, in the case of a continuing offence, a further fine not exceeding five pounds for every day during which the offence continues."

The plaintiff was the holder of an occasional passenger licence pursuant to the provisions of the Road Transport Act, 1932, on foot of which he operated a motor coach passenger service between Dublin and County Clare. The first defendant was the principal shareholder of the fifth defendant, G. Ltd., which operated a similar service between Dublin and County Clare, but which was unlicensed.

The plaintiff issued proceedings in the High Court claiming an injunction restraining the defendants from operating an unlicensed motor coach passenger service on the grounds that they were in breach of the Road Transport Act, 1932, and guilty of a criminal offence, in so doing. The High Court (Costello J.) granted the injunction sought, having concluded (i) that the defendants were operating an occasional road passenger service within the meaning of the Act of 1932 in respect of which they did not hold a licence, (ii) that the plaintiff's constitutional right to earn a living had been infringed by the unlawful act of the defendants in so operating an unlicensed road passenger service and (iii) that accordingly, the plaintiff was entitled to seek injunctive relief notwithstanding that the plaintiff was in breach of the conditions of his licence in certain minor respects. The defendants appealed to the Supreme Court.

In the Supreme Court, it was submitted on behalf of the defendants that the service being provided by the defendants was not one to which the provisions of the Act of 1932 applied, on the grounds, first, that the defendants did not own the motor coaches used in providing the service, and secondly, that passengers were required to pre-book their seat on the bus and must accordingly be deemed merely to be contributing towards the overall cost of the hire of the bus. It was further submitted that the plaintiff had no locus standi to seek an injunction restraining the defendants from committing a criminal offence as even if the plaintiff could establish that the defendants' activities amounted to an interference with the plaintiff's constitutional right, this did not, per se,afford the plaintiff a cause of action. Finally, it was submitted that the plaintiff was himself guilty of breaches of the Act of 1932 and, accordingly, having come to court otherwise than with clean hands, was not entitled to injunctive relief.

Held by the Supreme Court (Finlay C.J., Egan and Denham JJ.) in dismissing the appeal, 1, that the defendants were carrying on a road passenger service within the meaning of s. 2 of the Act of 1932, since on the evidence (a) persons intending to travel on a motor coach operated by the defendants could do so either by booking in advance or by paying an individual fare at the point, and at the time of departure, and (b) there was nothing in the Act of 1932 which prevented the Minister from granting a passenger licence to a person who was not the owner of the motor vehicle used in provision of a road passenger service.

Director of Public Prosecutions v. Go-Travel Ltd. [1992] 2 I.R. 1 distinguished.

2. That on the evidence, the defendants' activities constituted an actual and threatened interference with the plaintiff's constitutional right to earn his living by lawful means.

3. That while the purpose of the Act of 1932 was not to protect licensed providers of passenger road services from unlicensed competitors, a licensed provider might be entitled to restrain a breach of his constitutional rights caused by a breach of the Act of 1932.

Parsons v. Kavanagh [1990] I.L.R.M. 560 considered.

4. That the plaintiff was entitled to an injunction restraining the defendants from carrying on its activities if he could establish that this was the only way of protecting himself from the threatened invasion of his constitutional rights.

Meskell v. C.I.E. [1973] I.R. 132 considered.

5. That on the evidence, the only remedy that could protect the plaintiff was that of injunction, since the penalty for a continuing offence by a person operating a passenger road service without a licence was limited to five pounds.

6. That where, as in the instant case, a plaintiff's claim to injunctive relief rested upon a breach of his constitutional rights, the Court should inquire, not as to whether the plaintiff came before the Court with clean hands, but rather, whether the plaintiff had a constitutional right which was under threat. Accordingly, in the instant case, the test to be applied by the Court was whether the plaintiff's breaches of the Act of 1932 were such as to warrant the conclusion that the plaintiff was not earning his living by lawful means.

7. That on the evidence, the plaintiff's breaches of the conditions of his licence fell short of establishing that the plaintiff was not running the passenger service by lawful means.

Cases mentioned in this report:—

Byrne v. Ireland [1972] I.R. 241.

Director of Public Prosecutions v. Go-Travel Ltd. [1992] 2 I.R. 1; [1991] I.L.R.M. 577.

Meskell v. C.I.E. [1973] I.R. 132.

Murphy v. Stewart [1973] I.R. 97; (1972) 107 I.L.T.R. 117.

Murtagh Properties Ltd. v. Cleary [1972] I.R. 330.

Parsons v. Kavanagh [1990] I.L.R.M. 560.

Ryan v. The Attorney General [1965] I.R. 294.

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